Opposition Brief — Earl F. Cook v. Ben W. Fortson

INDEX

Subject Index

Summary of Appellees’ contentions

Appellant’s contentions:

I. The right of Appellant, to have his vote counted

THE SAME RIGHT IS NOT A CIVIL CIVIL

RIGHT IN LAW AND A POLITICAL RIGHT

IN EQUITY

II. The imposition of the “county unit” rule in the

election was State action

III. The questions are substantial

IV. The action is not against the State of Georgia... .

Table of Cases Cited

Chapman v. King, 154 F. (2d) 460

Coleman v. Miller, 307 U.S. 433

Mitchell v. Wright, 154 F. (2d) 924

Nixon v. Condon, 286 U.S. 73

Nixon v. Herndon, 273 U.S. 536

Philadelphia Co. v. Stimson, 223 U.S. 605

Ex Parte Siebold, 100 U. 8. 371......... ile Simiind

Smiley v. Holm, 285 U.S. 355

Smith v. Allwright, 321 U.S. 649

U. S. v. Classic, 313 U.S, 299

U. S. v. Mosley, 238 U.S. 383

U. S. v Saylor, 322 U. S. 384

Wiley v. Sinkler, 179 U.S. 58

Ex Parte Yarbrough, 110 U. S. 651

Statutes Cited

Code of Georgia 1933, Secs. 34-3217, 34,3209

U. S. C. A., Title 28, Sec. 41, sub-sec. 14

Constitution of the United States.

Article I, Sec. 2

14th Amendment

er ecnern Vaso cviCcwe DOT COoOpPyv

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1946

No. 531

Eart P. Coox, Appellant

vs.

Ben W. Fortson, Jr., as the duly appointed, qualified, and

acting Secretary of State of the State of Georgia;

J. Lon Duckwortn, Chairman of the Democratic Executive

Committee of the State of Georgia;

Grace CANNINGTON, Secretary of the Democratic Executive

Committee of the State of Georgia; and the

Democratic Executive COMMITTEE OF THE STATE OF

(;EORGIA, an unincorporated association,

Appellees.

BRIEF OF APPELLANT OPPOSING MOTION OF

APPELLEES TO DISMISS OR AFFIRM

CE

2

To the Supreme Court of the United States: ,

In their combined Counter-jurisdictional Statement and

Motion to Dismiss or Affirm, Appellees make four principal

contentions, viz:

1. That the rights of Appellant, sought to be protected,

are purely political, and not civil rights.

2. That the imposition of the “county unit” rule in the

Democratic Congressional primary election of July

17, 1946, wherein Appellant was denied the right to

have his vote counted as cast, was party action and

not State action.

3. That the questions are not substantial.

4. That the action is, in effect, one against the State of

Georgia, and the State has not consented to be sued.

In opposition to these contentions, counsel for Appellant

show:

1. The right of Appellant, to have his vote counted as ,

cast, in a Congressional election, is a civil right and

not a political right.

Numerous actions at law to redress the deprivation of the

right to vote, as a civil right, have been maintained.

The very statute which gives the District Courts jurisdic- 7

tion of such actions, in law and in equity, to wit, U. S. C. A.,

Title 28, Sec. 41, Subsection 14, is headed: “Suits to redress

deprivation of civil rights.”

THE SAME RIGHT IS NOT A CIVIL RIGHT IN LAW j

AND A POLITICAL RIGHT IN EQUITY. |

The members of the Court are familiar with the line of

decisions which have held that the right to vote in Congres-

sional elections is secured by Article I, Section 2, of the Con-

stitution, and is protected by the Fourteenth Amendment.

Some of the cases so holding, and protecting that Constitu-

tional right either in actions for damages or in criminal pro-

ceedings, are:

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EX PARTE SIEBOLD,

100 U. S. 371, 388;

EX PARTE YARBROUGH,

110 U. S. 651, 663;

WILEY v. SINKLER,

179 U. S. 58, 63;

U. S. v. MOSLEY,

238 U. S. 383;

NIXON v. HERNDON,

273 U. S. 536, 541;

NIXON v. CONDON,

286 U. S. 73;

COLEMAN v. MILLER,

307 U. S. 433 (not a Congressional election) ;

U. S. v. CLASSIC,

313 U. S. 299;

SMITH yv. ALLWRIGHT,

321 U. S. 649;

U. S. v. SAYLOR,

322 U. S. 384.

The contention of Appellees here was urged in NIXON v.

HERNDON, supra, and was disposed of summarily. Mr.

Justice Holmes, for the Court, said:

“The objection that the subject-matter of the suit is

political is littke more than a play upon words. Of

course the petition concerns political action but it alleges

and seeks to recover for private damage. That private

damage may be caused by such political action and

recovered for in a suit at law hardly has been doubted

for over two hundred years, since ASHBY v. WHITE,

2 Ld. Raym. 938, 3 id. 320, and has been recognized

by this Court. (cit.) ...”

Appellant here alleges private damage, by virtue of the

failure to count his vote. The right to have his vote counted

—,

4

is as much protected by the Constitution as is his right to >

cast a vote.

U. S. v. CLASSIC, supra;

SMITH v. ALLWRIGHT, supra;

‘U. S. SAYLOR, supra. '

He has been deprived of that Constitutional right, as the

statute expresses it, “under color of . . . statute,” and prays

that the statute (and the regulations adopted by virtue of it),

be declared to be unconstitutional and void.

Substantially the same relief is prayed in the instant case,

to redress the deprivation of a civil right which has resulted

in private damage, as was prayed and granted in the political

case of

SMILEY v. HOLM,

285 U. S. 355.

In that case, the Court, through Mr. Chief Justice Hughes,

described the proceeding as follows:

“This suit was brought by the petitioner as a ‘citizen,

elector and taxpayer’ of the State to obtain a judgment

declaring invalid all filings for nomination for the office

of representative in Congress, which should designate a

subdivision of the State as a congressional district, and

to enjoin the Secretary of State from giving notice of

the holding of elections for that office in such subdivi-

sions.” (Emphasis ours.)

The judgment of the State court dismissing the action was

reversed, and, in substance, this Court granted the declaratory

judgment. And that case was decided before the enactment

of the Declaratory Judgment statute.

Buttressed by the Declaratory Judgment Act, and asserting

private damage resulting from the deprivation of a Constitu-

tional right, Appellant in the case at bar is entitled to the

relief sought.

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See, in this connection:

MITCHELL v. WRIGHT (C.C.A. 5),

154 F. (2d) 924.

II. The imposition of the “county unit” rule in the Demo-

cratic Congressional primary election of July 17, 1946,

wherein Appellant was denied the right to have his vote

counted as cast, was State action.

(a) The State of Georgia requires a primary for the nomi-

nation of candidates for members of Congress:

Code of Georgia, 1933, Sec. 34-3217:

“Nothing in this law shall be construed to provide or

require any definite unit of election for candidates for

nominations for members of Congress, judges of the

superior courts, solicitors general, members of the Gen-

eral Assembly and county officers; and this law shall not

be construed to require a primary for any of the last-

named officials, except in their respective districts, cir-

cuits, or counties, as provided by law. . . .” (Emphasis

ours).

(b) The laws of Georgia do not require any definite unit

of election (i.e., whether by popular or “county unit” votes)

in primary elections for nomination of candidates for mem-

ber of Congress, but do require that the political party author-

ities shall, in all matters not provided for by law, make rules

and regulations for holding all primary elections and for

making returns thereof.

Code of Georgia of 1933:

Sec. 34-3217: “Nothing in this law shall be construed

to provide or require any definite unit of election for

candidates for nominations for members of Congress. . .”

Sec. 34-3209: “The party authorities shall, in all

matters not provided for in this Chapter, formulate rules

and regulations for holding said primary election and

for making returns thereof to the proper party authori-

ties.” (Emphasis ours.)

The direction that the “party authorities,” not the “party,”

6

shall make such rules and regulations, is significant. It brings

the case squarely within the doctrine of

NIXON v. CONDON,

286 U, S. 73.

The State Democratic Executive Committee failed to exer-

cise the power and duty to fix a unit of election in Congres-

sional primaries, providing, in its rule under which the in-

stant primary was held, as follows:

“VIII.

“Insofar as the Primary relates to the nomination of

candidates for Congress from various Congressional Dis-

tricts, such candidates shall be voted for only in the

counties comprising their respective districts; and the

Congressional Democratic Committee of each District

shall determine whether the county unit or popular vote

plan shall prevail.”

Whereupon, by resolution (Record, p. 4) the Congres-

sional Democratic Committee for the Fifth Congressional

District provided that the “county unit” rule should prevail

in the Congressional primary election held July 17, 1946.

The exclusion of Appellant from full participation in said

primary, by refusing to count his vote as cast, was State ac-

tion by the Fifth District Democratic Congressional Com-

mittee.

NIXON v. CONDON, supra, at page 85:

“Whatever power of exclusion has been exercised by

the members of the committee has come to them, there-

fore, not as delegates of the party, but as delegates of

the State. . . . Power so intrenched is statutory, not in-

herent. If the State had not conferred it, there would

be hardly a color of right to give a basis for its exercise.”

In imposing the “county unit” rule in the primary under

consideration, the Fifth Congressional Committee acted inde-

pendently of the will of the Democratic State Convention, in-

dependently of the will of the State Democratic Executive

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7

Committee (see Rule VIII, supra), and acted, both in law

and in fact, as an agency of the State.

NIXON v. CONDON, supra, at page 88:

“The pith of the matter is simply this: that when those

agencies are invested with an authority independent of

the will of the association in whose name they undertake

to speak, they become to that extent the organs of the

State itself, the repositories of official power. They are

then the governmental instruments whereby parties are

organized and regulated to the end that

itself may be established and continued. What they do

in that relation, they must do in submission to the man-

dates of equality and liberty that bind officials every-

where. They are not acting in matters of merely private

concern like the directors or agents of business corpora-

tions. They are acting in matters of high public interest,

matters intimately connected with the capacity of gov-

ernment to exercise its functions unbrokenly and

smoothly. . . . The test is not whether the members of

the Executive Committee are the representatives of the

State in the strict sense in which an agent is the repre-

sentative of his principal. The test is whether they are

to be classified as representatives of the State to such

an extent and in such a sense that the great restraints of

the Constitution set limits to their action.”

And see:

U. S. v. CLASSIC, supra;

SMITH v. ALLWRIGHT, supra;

CHAPMAN v. KING, 154 F. (2d) 460—(C.C.A. 5).

Ili. The questions are substantial.

Not only does Appellant seek relief in his own behalf, but

also in behalf of 53,882 electors who voted, as he did, for

candidate Helen Douglas Mankin, who received both a plu-

ORR RRR ERR CeRCIRCRECMNREE

rality and a majority of all votes cast. If mathematics is an

aid to a determination of the substantiality of the questions,

the case is 53,882 times as important as, for example, was

the case of NIXON v. CONDON, supra.

_ The following excerpt from COLEMAN v. MILLER is apt:

“Here, the plaintiffs include twenty senators, whose

votes against ratification have been overridden and vir-

) tually held for naught although if they are right in their

: contentions their votes would have been sufficient to de-

) feat ratification. We think that these senators have a

plain, direct and adequate interest in maintaining the

effectiveness of their votes. Petitioners come directly

within the provisions of the statute governing our appel-

late jurisdiction. They have set up and claimed a right

and privilege under the Constitution of the United States

to have their votes given effect and the state court has

denied that right and privilege.”

This Court has so frequently concerned itself with protect-

ing the right of individuals to vote and to have their vote

counted and given effect, that it is inconceivable that the ques-

tions here raised may be considered not substantial.

IV. The action is not against the State of Georgia.

In PHILADELPHIA CO. v. STIMSON, Tt

223 U. S. 605,

a case challenging the authority of the Secretary of War to

do the acts complained of therein, the Court said, at page 620:

“

.

action, the officer cannot claim immunity from injunc-

tion process. The principle has frequently been applied

with respect to state officers seeking to enforce unconsti-

tutional enactments.” (Citing numerous authorities.)

See also:

SMILEY v. HOLM, supra.

- in case of an injury threatened by his illegal f

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9

Appellant respectfully submits that the motion to dismiss

or affirm filed by Appellees should be denied on all grounds

and that this Honorable Court should accept and note juris-

diction of this appeal.

Respectfully submitted,

Auex. W, Smiru

Croom PARTRIDGE

Counsel for Appellant.

INDEX

Subject Index

GROUNDS ON WHICH THE JURISDICTION OF

THE SUPREME COURT IS INVOKED

STATEMENT OF THE CASE

SPECIFICATION OF ERRORS

SUMMARY OF THE ARGUMENT

I. The District Court had jurisdiction

II. The Supreme Court of the United States has

III. The right to vote for Members of

conferred by the Constitution of the United

IV. The right to vote for Members of Congress is

guaranteed against abridgment or discrimina-

tion by Amendment XIV to the Federal Consti-

. The laws of Georgia require a primary election

for the nomination of candidates for Members

VI & VII. The laws of Georgia do not require any definite

unit of election (i.e., whether by popular or

unit” votes) in primary elections for

nomination of candidates for member of Con-

gress, but do require that the political party au-

thorities shall, in all matters not provided for

by law, make rules and regulations for holding

all ape ene and for making returns

VIII. The State Democratic Executive Committee Dele-

gated the power given by the State, to fix a defi-

15

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XII. The State of Georgia supervises, and collab-

XIII. The holding of the Congressional primary elec-

XVI. This discrimination is in violation of both the

“privileges and immunities” clause, and the

“equal protection” clause, of the Fourteenth

Amendment

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gg

XVII. The District Court had the right and duty to

tho phelatlll 0 Bedinenteny Pedmment 0 seared. 31

XVIII & XIX. The District Court had the right and duty

oo iden ome cat oiapegenin dy

TABLE OF CASES CITED

Page

Chapman v. King, 154 F. (2d) 460..... cevces osvces OL

Colegrove v. Green, 90 L. ed. 1212........ 3, 7, 12, 28, 29

Coleman v. Miller, 307 U.S, 433... 2.466444: «++ +32, 33

Ex Parte Siebold, 100 U.S. 371... 6... 6c ee eeeeeeeee 14

Ex Parte Skinner & Eddy Corp., 265 U.S. 86.......++. 33

Ex Parte Yarbrough, 110 U.S. 651......... 13, 14, 15, 30

Gates v. Long, 113 S.W. (2d) 388........-00eeeeees 30

McPherson v. Blacker, 146 U.S.1......0000eeeeeees 28

Nixon v. Condon, 286 U.S. 73....... 3, 12, 16, 17, 19, 24

Nixon v. Herndon, 273 U.S. 536........... 15, 28, 30, 33

Slaughter House Cases, 16 Wall. 36...........+04+: 29

Smiley v. Holm, 285 U.S. 355... ....600eeeeeeeees 33, 34

Smith v. Allwright, 321 U.S. 649.......... 15, 20, 24, 28

United States v. Classic, 313 U.S. 290....... 14, 20, 24, 30

United States v. Mosley, 238 U.S. 383.......++20000% 27

United States v. Saylor, 322 U.S. 384. ....-60ceeeees 27

Wiley v. Sinkler, 179 U.S. 58. .....ccecccceees 3, 12,14

Asticie TH, See. 1, B..ccccccccccccsecccccees

US.C.A.. Title 2B, See. SBD... cccccccccccces 3, 12, 47

US.CA., Tithe 2B, Ses. B46... cccccccccccces 3, 12, 47

CGE, Bee Se Oe he scale cccvcccecesess 3, 12, 32

USCA. Tile BE Bes. GEO. .ccccccccccccccvcdes 3,12

Cady MS Ee ccccdccvesecscesesoedses 32

Constitution of Georgia

Article 2, Sec. 1, Pars. I, Il, 111, 1V—Sec. 6, Par. 1.35, 36

Article 3, Sec. 3, Par. I—Sec. 4, Par. II]......... 36, 37

Code of Georgia, 1933

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Bs GEO cccccceccsccoccccece cocccccccces &

Sec. 34-3217 16, 17, 24

BU, BOGIES bo cccccvccceccccces TTTTTT iT ++» 8

PEED Sa dcovcescecvccesedeustvavevcct 43

PU wdpuvcbcesoeuvsvnseccoceeesdecht 43

UE ME Na pevesdocedeavovseescetescosess 43

DU ED 0.0 06.6 cosveccccceséccoceecessecces w

De EE hawedbeesedencdvebecececdcccesee 4A }

Sec. 40-601 (As amended Acts 1946)......... 46

ANE aeObactubceactecsecoccccesocéouse 46

i ee Mlb Duercececcedvobsvivsceucess 47

eb SUE hb beSrucecadoccedeceedcececessets 25

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vi

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1946

No, 531

Ear P. Coox, A ppellant-Petitioner

vs.

Ben W. Fortson, Jr., as the duly appointed, qualified, and

acting Secretary of State of the State of Georgia;

J. Lon Duckworth, Chairman of the Democratic Executive

Committee of the State of Georgia;

Grace CANNINGTON, Secretary of the Democratic Executive

Committee of the State of Georgia; and the

Democratic Executive CoMMITTEE oF THE STATE OF

GEORGIA, an unincorporated association,

rrr

THE OPINION OF THE COURT BELOW

The opinion of the Court below is not yet vn

with its is set out as an

'ATEMENT AS JURISDICTION filed by odie 4

herein.

GROUNDS ON WHICH THE JURISDICTION OF THE

SUPREME COURT IS INVOKED

I. The right of a duly qualified elector, a citizen of the >

United States, to vote for a Member of Congress, and to have

his vote counted as cast, is secured by Article I, Section II,

of the Constitution of the United States, as a private right.

II. Pursuant to power conferred upyn the authorities of

political parties by the State of Georgin by virtue of certain 4

statutes, the State of Georgia, acting through a Democratic

political party committee for the Fifth Congressional District

of Georgia, imposed the “county unit” method of counting

votes in a Democratic primary election for Member of Con-

gress, held July 17, 1946. Said “county unit” system is

designed arbitrarily to discriminate, and does so discrim-

inate against Appellant and the members of his class.

III. By said State action, the vote of Appellant, a quali-

fied elector, cast in said primary, was not counted as cast,

but was counted only as a small fraction of a vote, contrary

to Article I, Section II, of the Constitution of the United

States and Amendment XIV thereto.

IV. Appellant brought his action for a Declaratory Judg-

ment, to declare the aforementioned statutes of the State of

Georgia to be unconstitutional, and the party rule imposing

the “county unit” system in said election, to have the force

of law and to be unconstitutional and void for the reasons

above asserted, and for injunctive relief. The relief prayed ry

was denied. (For details of rulings made, see Specifications

af Error, infra.)

Y. The statutory provisions under which jurisdiction is in-

voked are as follows:

ee

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are for a Declaratory Judgment

way of a writ of injunction, pursuant to Judicial Code, Sec.

274d (U.S.C.A., Title 28, Sec. 400).

WILEY v. SINKLER, 179 U.S. 58, 63;

NIXON v. CONDON, 286 U.S. 73;

COLEGROVE v. GREEN, 90 L. ed. 1212.

4

STATEMENT OF THE CASE

Earl P. > S arene Ses See oe ee

against Ben W. Fortson, Jr., as of State of Georgia;

J. Lon Duckworth, Chairman of the Executive

Judgment, and for additional relief by injunction, alleg-

ing that the rules of the said Democratic Executive Commit-

tee and of the Fifth District Congressional Democratic Com-

mittee imposed the “county unit rule” of election in a Demo-

cratic Congressional Primary held July 17, 1946; that said

rules constituted a part of the election system under the laws

winner. in said Primary any candidate save the candidate

who received the plurality and majority of all votes cast

therein, for that said statutes and rules abridged the right

and privilege of Appellant, and of each member of his class,

to vote in said Congressional primary election, for a candi-

date for Member of Congress, upon substantially an equal

basis with each other elector in said Congressional District,

for that the said “county unit rule” discriminates, arbitrarily,

against the electors of Fulton County, in said District. Appel-

lant alleged that his right to cast an entire vote, and to have

that vote counted, is secured to him and to the members of

his class by Article I, Section 2, of the Constitution of the

United States and guaranteed against abridgment or discrim-

ination by Amendment XIV thereto.

Appellant alleged, in substance, that the State of Georgia,

by statute, delegated to the Demc cratic Party authorities, the

option and discretion to provide whether a primary election

of said party should be held under the popular vote rule or

under the “county unit” rule, and that, in imposing the

“county unit” rule in the Congressional primary above men-

tioned, the Congressional Democratic Committee intended to

and did exercise the discretion and option vested in it by law.

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wold np nachensbe primaries, i

Georgia, 1933 (Sec. 34-3212), as follows:

“Candidates for nominations . . . who receive, respec-

tively, the highest number of popular votes in any given

pear Opie den ppg: yt edge pe parce

be entitled to the full vote of such county on

the county unit basis, that is to say, two votes for each

representative to which such county is entitled in the

lower House of the General Assembly. . . .”

As illustrating and demonstrating the discrimination

against himself and members of his class resulting from the

application of the “county unit rule” in the aforementioned

Congressional primary, Appellant set out the following sum-

mary of statistics relative to the three counties comprising the

Fifth Congressional District of Georgia:

Populatien Number of State Number of County

County (1940 Census) Representatives Unit Votes

Fulton 392,886 3 6

DeKalb 86,648 3 6

Rockdale 7,724 1 2

Appellant alleged that, under the “county unit rule,” as

applied to three said counties upon the basis of comparative

populations, each elector of Rockdale County was entitled to

one full vote, while each elector of DeKalb County was en-

titled to .2667 of a vote, and each elector of Fulton County

was entitled to only .0589 of a vote.

Appellant showed to the specially constituted three-judge

court that he voted in said primary election for Helen Doug-

las Mankin, who received both a plurality and a majority of

all votes cast therein, and showed the consolidated vote in

said primary to have been as follows:

Unit Number

Vote Counties

James C. Davis 43,162 8 2

Capt. Wyman C. Lowe 7,510 0 0

Helen Douglas Mankin 53,882 6 1

He showed that, notwithstanding the election of Helen

Douglas Mankin by popular vote, the authorities of the Dem-

ocratic Party and the Secretary of State threatened to place

upon the official ballot for use in the General Election to be

held November 5, 1946, as a candidate of said party, the

name of James C. Davis, who received only 43,162 of the

104,554 popular votes cast in said primary election, but who

:

‘

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The

case was by the decision of

GROVE v. GREEN, 90 L. ed. 1212, that the

in the instant case were of a political nature, and

2. Error is specified on the failure and refusal of the Dis-

trict Court to issue and grant an interlocutory injunction, as

prayed. (Assignments of Error, II.)

3. Error is specified on the failure of the District Court to

hold and adjudge that the rules of the Democratic Party

pointed out in the Complaint, are a part of the election ma-

chinery of the State of Georgia, and have the force of law.

(Assignments of Error, V.)

4. Error is specified on the failure of the District Court to

hold that the right to vote for a Member of Congress is a

right and privilege secured to Appellant by Article I, Sec-

tion II, of the Constitution of the United States, and guaran-

teed against infringement and discrimination by Amendment

XIV thereto. (Assignments of Error, VI.)

5. Error is specified upon the failure of the District Court

to hold and adjudge that the laws of the State of Georgia,

and the rules of the Democratic Party providing for a primary

election under the county unit rule, complained of herein,

abridge the privilege of Appellant to vote for a Member of

Congress, and that they deny to Appellant the equal protec-

tion of the laws, in violation of the Fourteenth Amendment.

(Assignments of Error, VII.)

6. Error is specified on the failure of the District Court to

hold and adjudge that Appellant, under and by virtue of

Article I, Section II, of the Constitution of the United States,

and Amendment XIV thereto, had the right to vote in the

of Error, VIII.)

7. Error is specified on the finding and

District Court, as a Conclusion of Law, that:

of the

“We think the case is controlled in principle by the

decision on June 10, 1946, in Colegrove v. Green, 90

L. ed. 1212, and that equity should grant no relief, but

leave any redress that may be due for the inequalities

complained of to the action of the State Legislature, or

of Congress

(Assignments of Error, IX.)

8. Error is specified on the finding and decision of the

District Court, as a conclusion of law, the following:

“We greatly doubt that the county unit rule here com-

plained of can be said to be imposed on a congressional

primary by the State at all, so as to bring the Fourteenth

Amendment into operation.”

(Assignments of Error, X.)

9. Error is specified on the finding and decision of the

District Court, as a conclusion of law, the following:

“If the county unit be imposed in congressional pri-

maries it is by party action, not state action.”

10. Error is specified on the finding and decision of the

District Court, as a conclusion of law, as follows:

“But at last as matters now stand, the county unit rule

is not being applied by anyone. The State Executive

Committee has refused to apply it and has certified both

candidates, and both are on the ballots which are being

printed, and every Democrat is free to vote for his choice,

and the popular vote will determine in the general elec-

tion. The plaintiff and those he represents will get ex-

actly what they claim they should have.”

(Assignments of Error, XII.)

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a

3

District Court, as \ conclusion of law, as follows:

“At present we see nothing that ought to be enjoined,

even if that remedy be available in such a case as this.”

(Assignments of Error, XIII.)

10

SUMMARY OF THE ARGUMENT

Points I, 11: The District Court had jurisdiction, and the

Supreme Court of the United States has jurisdiction on ap-

peal, of this cause.

Points II], 1V: The right to vote for Members of Congress

is secured to qualified electors by Article I, Section II, of the

Constitution of the United States, is guaranteed against in-

fringement or discrimination by Amendment XIV, and is a

personal right.

Points V, VI: By law, the State of Georgia requires a pri-

mary election in each Congressional District for nominating

candidates for Members of Congress, but does not provide

for any definite unit of election therein (i.e., whether by pop-

ular or “county unit” votes).

Point VII: By law, the State of Georgia requires that the

political party authorities shall, in all matters not provided

by law, make rules and regulations for holding all primary

elections and for making returns thereof.

Points VIII, IX: No higher authority of the Democratic

Party having exercised the right delegated by the State to

fix a definite unit of election for the Congressional primary

election held July 17, 1946, the Congressional Democratic

Committee for the Fifth Congressional District provided that

the “county unit rule” should prevail therein.

Point X: The adoption of the “county unit rule” in said

election by said Committee, in the exercise of power dele-

gated by the State, and required by statute to be exercised,

was State action, had the force of law, and abridged Appel-

lant’s right to vote for 2 Member of Congress, secured by

Article I, Section II, of the Constitution.

Point XI: By adopting the “county unit rule” for said

election, a committee of eighteen thwarted the will and choice

of a plurality and a majority of the electors of said Congres-

sional District.

Point XII: The State of Georgia supervises, and collab-

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ll

orates in, the holding of all primary elections, and has

adopted the party primary as a part of the public election

machinery

Point XIII: The holding of said Congressional primary

election was the action of the State of Georgia, acting through

the Congressional Democratic Committee for said District.

Point XIV: The “county unit rule” is designed arbitrarily

to discriminate, and by virtue thereof the State of Georgia

and the Democratic Party do so discriminate, against the elec-

tors of Fulton County, in favor of the electors of Rockdale

County and of DeKalb County.

Points XV, XVI: Such discrimination deprives Appellant

of the right to vote and to have his vote counted on substan-

tially an equal basis with electors of other counties in said

Congressional District, is a private wrong to Appellant, and

is in violation of both the “privileges and immunities” clause,

and the “equal protection” clause, of the Fourteenth Amend-

ment.

Points XVII-XIX: The District Court had the right and

duty to grant Appellant a Declaratory Judgment, and injune-

tive relief, as prayed.

1. The District Court had jurisdiction of the parties and of

the subject-matter in this cause.

Plaintiff asserted a right to vote for a Member of Congress,

and to have his vote counted upon a basis of substantial equal-

ity with every other vote cast in his Congressional District.

Such right, he alleged to be secured to him by the Constitu-

tion of the United States (Article I, Section II), and to be

guaranteed by Amendment XIV thereto.

The Constitution provides:

Article ITI:

“Section 1. The judicial Power of the United States,

shall be vested in one Supreme Court, and in such in-

ferior Courts as the Congress may from time to time

ordain and establish. * * *

.

“Section 2. The judicial Power shall extend to all

Cases, in law and equity, arising under this Constitu-

tion, * * *”

The complaint was brought under the provisions of U.S.

C.A., Title 28, Sec. 41, sub-section 14, to redress the depriva-

tion of civil rights.

The relief sought was that authorized by Judicial Code,

Sec. 274d (U.S.C.A., Title 28, Sec. 400), to wit, a Declara-

tory Judgment and further relief by way of a writ of injune-

tion, both temporary and permanent.

Injunction being sought to restrain the operation of State

statutes upon the ground of the unconstitutionality thereof, a

three-judge District Court was convoked, in conformity with

Judicial Code, Section 266, as amended (U.S.C.A., Title 28,

Sec. 380), one of said Judges being the Senior Circuit Judge

for the Fifth Circuit. The required notice was given to the

Governor and to the Attorney-General of the State of Georgia.

II. The Supreme Court of the United States has jurisdiction

in this cause on this appeal.

_ An interlocutory injunction having been denied, after

notice and hearing, the Supreme Court has jurisdiction of this

cause on this appeal by virtue of

Judicial Code, Sec. 266, as amended (U.S.C.A., Title

28, Sec. 380);

Judicial Code, Sec. 238, as amended (U.S.C.A., Title

28, Sec. 345);

(See appendix for pertinent quotations.)

And see:

WILEY v. SINKLER, 179 U.S. 58, 65;

NIXON v. CONDON, 286 U.S. 73;

COLEGROVE v. GREEN, 90 L. ed. 1212.

III. The right to vote for Members of Congress is conferred

by Article 1, Section II, of the Constitution of the United

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13

States, upon citizens of the United States, who are qualified,

In EX PARTE YARBROUGH, 110 U.S. 651, it was de-

cided that the Constitution adopts the State qualification as

the federal qualification for the voter; but that his right to

vote is based upon the Constitution and not upon the State

law. Interestingly enough, EX PARTE YARBROUGH was

an original proceeding to inquire into the jurisdiction of the

United States Circuit Court for the Northern District of

Georgia, the District from which this appeal is brought. In

that case, this Court, in a unanimous opinion delivered by

Mr. Justice Miller, said:

“But it is not correct to say that the right to vote for

a member of Congress does not depend on the Constitu-

tion of the United States.

“The office, if it be properly called an office, is created

by that Constitution and by that alone. It also declares

how it shall be filled, namely, by election. Its language

is: (Quoting Article I, Section 2.)

“The States, in prescribing the qualifications of voters

for the most numerous branch of their own legislatures,

do not do this with reference to the election for members

of Congress. Nor can they prescribe the qualifications

for voters for those eo nomine. They define who are to

vote for the popular branch of their own legislature, and

the Constitution of the United States says the same per-

sons shall vote for members of Congress in that State.

It adopts the qualification thus furnished as the qualifi-

cation of its own electors for members of Congress.

Se

14

“It is not true, therefore, that electors for members

of Congress owe their right to vote to the State law in

any sense which makes the exercise of the right to de-

pend exclusively on the law of the State.”

The Court cited an earlier case, in which had been dis-

cussed the mutual interests of both the State and National

governments in the proper election of members of Congress,

viz:

EX PARTE SIEBOLD, 100 U.S. 371.

The doctrine of EX PARTE YARBROUGH, supra, was

adhered to in

WILEY v. SINKLER, 179 U.S. 58, 62,

where the Court prefaces the same language as is above-

quoted from the Yarbrough Case with the following state-

ment:

“The right to vote for members of the Congress of

the United States is not derived merely from the Con-

stitution and laws of the State in which they are chosen,

but has its foundation in the Constitution of the United

States.”

Again, in the recent case of

UNITED STATES vy. CLASSIC, 313 U.S. 290,

this Court has followed the ruling in EX PARTE YAR-

BROUGH, supra, and the following language, appearing at

page 314, is apt:

“Interference with the right to vote in the Congres-

sional primary in the Second Congressional District for

the choice of Democratic candidate for Congress is thus,

as a matter of law and in fact, an interference with the

effective choice of the voters at the only stage of the

election procedure when their choice is of significance,

since it is at the only stage when such interference could

have any practical effect on the ultimate result, the

choice of the Congressman to represent the district. The

primary in Louisiana is an integral part of the proce-

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tions of which it prescribes. The right of the people to

choose, whatever its appropriate constitutional limita-

tions, where in other respects it is defined, and the mode

to those citizens and inhabitants of the state entitled to

exercise the right.”

More recently, EX PARTE YARBROUGH, supra, and the

CLASSIC CASE, supra, have been followed, in

SMITH v. ALLWRIGHT, 321 U.S. 649, 661:

“It may now be taken as a postulate that the right to

vote in such a primary for the nomination of candidates

without discrimination by the State, like the right to

vote in a general election, is a right secured by the Con-

stitution.”

IV. The right to vote 'for Members of Congress, secured

by the Constitution, is guaranteed against abridgment or dis-

crimination by Amendment XIV to the Federal Constitution.

It isa personal right.

The language of Mr. Justice Holmes, in a unanimous de-

cision in

NIXON v. HERNDON, 273 U.S. 536, 540,

‘is “apposite, and seems to settle the matter. Of a statute of

‘the State of Texas, forbidding negroes to take part in a Dem-

ocratic primary election in that State, the Court said:

“The important question is whether the statute can

‘be sustained. But although we state it as a question the

=

answer does not seem to us open to a doubt. We find it

unnecessary to consider the Fifteenth Amendment, be-

cause it seems to us hard to imagine a more direct and

16

gave citizenship and the privileges of citizenship to per-

sons of color, but it denied to any State the power to

withhold from them the equal protection of the laws. . . .

What is this but declaring that the law in the States shall

be the same for the black as for the white; that all per-

sons, whether colored or white, shall stand equal before

the laws of the States . . .?’”

See also:

NIXON v. CONDON, 286 U.S. 73, at 89.

V. The laws of Georgia require a primary election in the

several Congressional Districts of the State, for the nomina-

tion of candidates for Members of Congress.

Code of Georgia of 1933, Sec. 34-3217:

“Limitations.—Nothing in this law shall be construed

to provide or require any definite unit of election for

candidates for nomination for members of Congress,

judges of the superior courts, solicitors general, mem-

bers of the General Assembly and county officers; and

this law shall not be construed to require a primary for

any of the last-named officials, except in their respec-

tive districts, circuits or counties, as provided by law:

Provided, however, that primaries for nomination of

members of Congress, judges of the superior courts,

solicitors general and members f the General Assembly

shall be held on the date named in section 34-3212 for

primaries for United States Senator, Governor, State-

house officers, Justices of the Supreme Court and Judges

of the Court of Appeals. (Acts 1917, p. 189.)” (Em-

phasis ours.)

V1, VII. The laws of Georgia do not require any definite

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17

unit of election (i.e., whether by popular or “county unit”

votes) in primary elections for nomination of candidates for

member of Congress, but do require that the political party

authorities shall, in all matters not provided for by law, make

rules and regulations for holding all primary elections and

for making returns thereof.

Code of Georgia of 1933 (dealing with the county unit

vote law):

“Sec. 34-3217. Limitations.—Nothing in this law

shall be construed to provide or require any definite unit

of election for candidates for nominations for members

of Congress, . . .”

“Sec. 34-3209. Party authorities may formulate ad-

ditional rules.—The party authorities shall, in all mat-

ters not provided for in this Chapter, formulate rules

and regulations for holding said primary election and

for making returns thereof to the property party author-

es.” (Emphasis ours.)

Necessarily, in using the phrase “party authorities,” the

General Assembly of Georgia intended to confer upon some

officers or agency of the Party, rather than upon the Party

Convention itself exclusively, the power and duty to formu-

late rules and regulations governing the holding of primary

elections. As will be shown, the State Democratic Executive

Committee so construed the statute. (See the following sub-

division. )

That this was a delegation of power to the party authori-

ties is demonstrated in

NIXON v. CONDON, 286 U.S. 73, q.v.

VIII. Insofar as concerns the Congressional primary elec-

tion here under attack, neither the officers of the State Demo-

cratic Party, nor the State Democratic Executive Committee,

nor any other higher authority of said Party exercised the

power, delegated by the State to fix a definite unit of election

therein, but the State Executive Committee left the exercise of

that power and duty to the respective Congressional Demo-

cratic Committee in each District.

18,

We quote from the rules and of the State Dem-.

ocratic Executive Committee of adopted May 2,,

Sek cake hh Mie matene doer nant

“Vill.

“Insofar as the Primary relates to the nomination of

candidates for Congress from various Congressional I Dis-

tnicts, such candidates shall be voted for only it the

counties comprising their respective districts; A the

Congressional Democratic Committee of each District

shall determine whether the county unit or popular vote

plan shall prevail.”

IX. The Congressional Democratic Committee for the Fifth

Congressional District, by resolution, provided that the

“county unit rule’ should prevail in the primary election held

July, 17, 1946.

We quote from the resolution adopted by said Committee

om May 3, 1946:

“4. A candidate receiving a plurality of the votes cast

in a county shall be entitled to the unit vote for said

county and the candidate receiving a majority of the

county unit votes cast in said primary in said District

shall name delegates from each County in the District to

a convention of delegates to be held in the City of At

lanta, Georgia, on Saturday, July 27, 1946, at 11 o’clock

A.M. in the Senate Chamber of the State Capitol. The

delegates so appointed shall go to the convention and

declare as the nominee the candidate who receives a

majority of the County Unit votes, cast in, said primary.

“The number of delegates from each, county shall be

twice the number of representatives which said county

has in the House of Representatives of Georgia.

“When said delegates have assembled in convention,

they shall organize by the election of such officers aa

such convention may deem necessary and shal) then, pro-

ceed to declare as the nominee for Congress. from the

Fifth Congressional District the candidate receiving the

majority of the County Unit votes cast in the primary.”

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19

X. Said resolution by the Congressional Democratic Com-

mittee for the Fifth District, having been adopted in the ex-

ercise of power conferred by the State and required by statute

to be exercised, is State action, has the force of law, and

abridges the right to vote for Members of Congress, secured

by Article I, Section 2, of the Constitution of the United States.

In principle, the instant case is controlled by the decision in

NIXON v. CONDON, 286 US. 73.

There the Court had under consideration a statute of Texas

which authorized the State Executive Committee of a political

party to prescribe the requisites of party membership. Hold-

ing that such power is inherent in the State convention of a

party, and not in any committee, the Court said:

“Whatever power of exclusion has been exercised by

the members of the committee has come to them, there-

fore, not as the delegates of the party, but as the dele-

gates of the State. * * * Power so intrenched is statutory,

not inherent. If the State had not conferred it, there

would be hardly color of right to give a basis for its

exercise.” (286 U.S. 73, at 85.)

That the Fifth District Congressional Democratic Commit-

tee undertook, in the case at bar, to exclude Appellant and

members of his class from casting an entire vote, instead of

undertaking to exclude them from Party membership, does

not distinguish this case from that of NIXON v. CONDON.

Independent of the will of the Democratic State Convention,

and expressly declared to be independent of the will of the

State Executive Committee by Rule VIII thereof, supra, the

Fifth District Congressional Committee of the Party acted,

both in law and in fact, as an agency of the State.

Appellant’s contention is summed up, clearly and suc-

cinctly, in NIXON v. CONDON, supra, at page 88:

“The pith of the matter is simply this, that when those

agencies are invested with an authority independent of

the will of the association in whose name they under-

take to speak, they become to that extent the organs of

the State itself, the repositories of official power. They

are then the governmental instruments whereby parties

are organized and regulated to the end that government

itself may be established or continued. What they do

in that relation, they must do in submission to the man-

dates of equality and liberty that bind officials every-

where. They are not acting in matters of merely privaie

concern like the directors or agents of business corpora-

tions. They are acting in matter of high public interest,

matters intimately connected with the capacity of gov-

emment to exercise its functions unbrokenly and smooth-

ly. * * * The test is not whether the members of the

Executive Committee are the representatives of the State

in the strict sense in which an agent is the representative

of his principal. The test is whether they are to be clas-

sified as representatives of the State to such an extent

and in such a sense that the great restraints of the Con-

stitution set limits to their action.”

And see:

U. S. v. CLASSIC, supra;

SMITH v. ALLWRIGHT, supra.

XI. The said Congressional Democratic Committee for the

Fifth District is composed of fourteen members and three

officers; said Committee, by adopting the “county unit rule”

for the Congressional Primary election held July 17, 1946,

thwarted the will and choice of both a plurality and a majority

of the electors of said Fifth Congressional District.

The tremendous power vested in this little oligarchy of

seventeen is delineated graphically by the returns. Here fol-

lows the consolidated vote in the Democratic primary pres-

ently under attack:

From THE FirtTH CONGRESSIONAL DISTRICT

Popular Unit Number

Vote Vote Counties

James C. Davis 43,162 8 2

Capt. Wyman C. Lowe 7,510 0 0

Helen Douglas Mankin 53,882 6 3

104,554 3

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21

Having received both a plurality and a majority of all

votes cast, Mrs. Mankin, nevertheless, received the unit vote

only of Fulton County. Notwithstanding that 53,882 electors

of 104,554 voting, chose Mrs. Mankin as the nominee of the

Democratic Party for Member of Congress from the Fifth

District, James C. Davis, under the “county unit rule,” re-

ceived the nomination. Quod Erat Demonstrandum.

It was only as a matter of grace, and because of a violation

by the Congressional Committee of a rule of the State Execu-

tive Committee, that a Contest Committee certified Mrs. Man-

kin’s name as a candidate, along with the name of James C.

Davis. Appellees herein contend that such certification was

not final, since the Democratic State Convention held October

9, 1946, declared that Mrs. Mankin was not a nominee, and

to remove her name from the ballot.

XII. The State of Georgia supervises, and collaborates in,

the holding of all primary elections, and has adopted the party

primary as a part of the public election machinery.

The statutes of Georgia regulating primary elections have

been considered by the Fifth Circuit Court of Appeals, and

the decision of that Court coincides in most respects with the

contentions of Appellant here. We refer to the case of

CHAPMAN v. KING, 154 F. (2d) 460.

In discussing the participation of the State in party pri-

maries, the Court says:

“But the State of Georgia has not left party primaries

wholly to the various parties, but has recognized the

practical potency of the party pledge and the great im-

portance to the public of the results of a primary held

by a numerous party, and has protected and regulated

such primaries almost exactly in the same way as it has

regulated elections by the people. Much, perhaps most,

of this regulation we think in no wise commits the State

to the party practices. .. .

“But there are features of the Georgia laws which

seem to us to show that the State, when any party calls

a primary, associates itself with the party in holding it,

ph adopts the result as authenticating the successful

candidate to be the nominee of that party for the official

election ballot. The State collaborates in these ways: It

prohibits anyone to participate in any primary or con-

vention of any political party who is not a i

voter. Georgia Code § 2-608, Constitution, Art. II, Sec. ;

I, Par. 8. The State furnishes its list of registered voters

and these voters alone are declared entitled to vote in

rimaries as well as in general elections. Georgia Code

34-405. And the State registrars are required to be at

the court house during the voting hours of the primary

as fixed by law § 34-2001a, to make corrections in the

list, § 34-411 (Supplement). The State requires the

party to select election managers, and requires each

manager to take an oath that he will fairly and impar-

tially and honestly conduct the election according to the

provisions of law. § 34-3201. If a voter is challenged,

they are required to administer to him an oath that he is

duly qualified to vote ‘according to the rules of the party,

and according to the election laws of this State.’ § 34-

3202. All the laws in reference to the qualification of

voters and their registration are applied to primaries,

and ‘No person who is not a duly qualified and regis-

tered voter according to law and who is not also duly

qualified in accordance with the rules and regulations of

the party holding the same, shall be entitled to vote at

any such primary election.’ § 34-3218. If the chal-

lenged voter swears falsely, the State will punish him.

§ 34-9925. No one but a sworn manager can have any

part in receiving or counting the votes. § 34-3205. The

managers must turn over tally sheets, lists of voters, bal-

lots and other election papers to the Clerk of the Superior

Court to be kept under seal until the next grand jury

meets if no contest is filed. § 34-3207. The managers

are indictable for violation of their duty. §§ 34-9922,

34-9923. Generally all penal laws touching elections are y

extended to primaries, § 34-9933, Supplement; and

§ 34-9907.

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23

“Further, by the Act of 1917, Sections 34-3212 to

34-3218, the State has undertaken to control the method

of determining who has been nominated in a primary

for United States Senator, Governor, Statehouse officers

and Justices of the Supreme Court and Court of Ap-

peals, these being statewide elections, by saying that

neither a majority nor a plurality of all votes cast shall

nominate, but that a plurality of the votes in each county

shall carry that county, and a majority of “county units”

carried as therein defined, shall determine the nominee;

and if no candidate carried a majority of the county

units and there are but two candidates the one who re-

ceived a majority of the popular votes shall be the nom-

inee; but if there are more than two candidates and

neither carried a majority of the county unit votes, there

shall be a second primary between the two leading can-

didates whose result is to be determined on the same

basis; with other elaborate provisions on further con-

tingencies. This Act appears in large measure to take

such primaries out of the control of the parties initiat-

ing them, and to substitute the State’s will in determin-

ing the mode of choice of the party nominee. It is the

Act which specifically declares that no one may vote who

is not qualified according te the rules of the party.

§ 34-3218.

“We think these provisions show that the State,

through the managers it requires, collaborates in the

conduct of the primary, and puts its power behind the

rules of the party. It adopts the primary as a part of

the public election machinery. The exclusions of voters

made by the party by the primary rules become exclu-

sions enforced by the State and when these exclusions

are prohibited by the Fifteenth Amendment because

based on race or color, the persons making them effec-

tive violate under color of State law a right secured by

the Constitution and laws of the United States within

the meaning of the statute which is here sued on.”

It should be borne in mind that the opinion from which

the above excerpt is quoted was not written with particular

24

reference to election of a Member of Congress, and that,

therefore, the Court probably overlooked Sec. 34-3217, above

_ quoted, which does require a primary in each Congressional

District. Nor did the Court comment upon the fact that the

State empowers the party authorities to impose the “couny

unit rule” in elections where it is not, by statute, required to

be imposed.

See also:

NIXON v. CONDON, supra;

U. S. v. CLASSIC, supra;

SMITH v. ALLWRIGHT, supra.

XIII. The holding of the Congressional primary election of

July 17, 1946, in the Fifth Congressional District, was the

action of the State of Georgia, by and through a committee of

the Democratic Party, consisting of fifteen members and three

officers.

Counsel believe that this proposition has been demonstrated

by the arguments and authorities under subdivisions X and

XII, supra.

XIV. The “county unit rule’ is designed arbitrarily to dis-

criminate, and by virtue thereof the State of Georgia and the

Democratic Party, do so discriminate, against the citizen-

electors of Fulton County, in favor of the citizen-electors of

Rockdale County and of DeKalb County.

The “county unit rule” imposed by statute in numerous

primaries, and by the Fifth District Congressional Democratic

Committee in the primary under attack (though different lan-

guage was used in the latter case), is found in Code of Geor-

gia, Sec. 34-3212, to wit:

“Candidates for nominations to the above-named of-

fices who receive, respectively, the highest number of

popular votes in any given county shall be considered

to have carried such county, and shall be entitled to the

full vote of such county on the county unit basis, that is

to say, two votes for each representative to which such

cI ceND THROUGH=—= POOR COPY

25

county is entitled in the lower House of the General

Assembly. . . .”

This litigation does not attack, per se, the apportionment

among the several counties of Georgia of representatives in

the lower house of the legislature of that State. But, when, by

statute, or under the authority of statute, the apporionment is

made the basis of the “county unit rule,” it must be scrutinized

for discriminatory features. The apportionment statute pres-

ently effective is (Code of Georgia of 1933, 1945 Supple-

ment, Sec. 47-101), to wit:

“47-101. House of Representatives; membership ap-

portioned.—The membership of the House of Represen-

tatives shall be as follows: Three members each from

the counties of Fulton, Chatham, Bibb, Richmond, De-

Kalb, Muscogee, Floyd, Troup; two members each from

the counties of Cobb, Carroll, Laurens, Thomas, Col-

quitt, Hall, Lowndes, Burke, Gwinnett, Sumter, Ware,

Bulloch, Walker, Clarke, Bartow, Polk, Coweta, Wash-

ington, Emanuel, Decatur, Mitchell, Spalding, Baldwin,

Meriwether, Coffee, Glynn, Upson, Whitfield, Worth,

Dougherty; and one member each from each of the

other counties of the State.”

Even a superficial glance at the Census of 1940 reveals

the fact that the apportionment among the larger Counties of

representatives in the lower House of the General Assembly,

is not “according to their respective numbers,” but is purely

arbitrary.:

Fulton County, with a population of 392,886, has 3 rep-

resentatives.

Chatham County, with a population of 117,960, has 3 rep-

resentatives.

Bibb County, with a population of 83,783, has 3 represen-

tatives.

Richmond County, with a population of 81,863, has 3 rep-

resentatives.

26

DeKalb County, with a population of 86,942, has 3 repre-

sentatives.

Muscogee County, with a population “ 75,494, has 3 rep-

resentatives.

Floyd County, with a population of 56,141, has 3 represen-

tatives.

Troup County, with a population of 43,879, has 3 ae

sentatives. 4

Troup County, with a population approximately paaren

that of Fulton County, has equal representation with the latter

county in the General Assembly, and an equal number of unit-

votes in Statewide elections.

More directly, the picture for the Fifth Congressional Dis-

trict is as follows:

Number of State Number of County

County Population Representatives Unit Votes

Fulton 392,886 3 6

DeKalb 86,942 3 6

Rockdale 7,724 1 2

Upon the basis of population of the respective counties,

therefore, while each qualified elector is entitled to one full

vote, each qualified elector of DeKalb County is entitled to

.2667 of a vote, but each qualified elector of Fulton County

is entitled only to .0589 of a vote.

Can it be imagined that such gross discrimination is unin-

tentional? Is a qualified elector, whose vote is deprived of

.9411 of its weight and effectiveness, appreciably better off

than a qualified elector who is denied his right to vote at all?

When the Constitution was adopted, slavery being an estab-

lished institution, it was provided (Article I, Section 2, Par.

3) that, for the purpose of apportioning Representatives in

Congress among the several states “according to their respec-

tive numbers,” a slave should be considered as three-fifths of

a free person; and yet, in the year of our Lord 1946, and in

FIECN THROUGH=— POOR COPY

SARE RTT et —

2

the year. of ous Independence the 171st, when a, qualified

voter of Fulton County, Georgia, comes to, vote for such Rep-

resentative, he is regarded as .0589 of an elector.

In these. cixcumstances, the citizens of the small rural

County of Rockdale may not truthfully say with “Mr.

Dooley” :

“Ivrything that’s worth havin’ goes to th’ city; th’

counthry takes what’s left.”

XV. This discrimination, contrary to Amendment XIV of

the Federal Constitution, deprives Appellant of a personal

right—the right to vote, and. to have his vote counted, on sub-

stantially an equal’ basis with electors residing in other coun-

ties of said Congressional District, and is a private wrong to

Appeltant.

The discriminatory features of the “county unit” system

have been discussed in the preceding subdivision of this brief.

That such discrimination, is in contravention of the Fourteenth

Amendment has already been demonstrated, IV, supra.

That the right of an elector to have his vote counted is. in-

cluded. in his right to vote, is a proposition sustained both by

reason. and. by, the authorities.

In UNITED STATES v. MOSLEY, 288 U.S. 383, 386, the

Court say:

“We regard it as equally unquestionable that the right

to hive one’s vote counted is as open to protection by

Congress as the right to put a ballot in a box.”

The last-cited case wag quoted and followed in

UNFTED STATES v. SAYLOR, 322 U.S. 384.

There, im discussing the Mosley. case, the Court say:

“The cenclusion was that Sec. 19 protected personal

rights of a citizen including the right to cast his balJot,

and held that to refuse to count and return the vote as

cast was as much an infringement of that persone] right

as to exelude the voter from the polling place. The case

; |

affirms that the elector’s right intended to be protected

is not only that to cast his ballot but that to have it hon-

estly counted.”

Exclusion from the polling place is a private wrong.

NIXON v. HERNDON, supra.

Again, in

UNITED STATES v. CLASSIC, supra, at page 315:

“Obviously included within the right to choose, se-

cured by the Constitution, is the right of qualified voters

within a state to cast their ballots and have them counted

at Congressional elections. This Court has consistently

held that this is a right secured by the Constitution.”

(cit.)

See also:

SMITH v. ALLWRIGHT, supra.

Counsel submit that a system of counting ballots is not

honest which deprives the ballots cast in one county in the

District of a large percentage of their weight and effective-

ness, while giving to ballots cast in another county in the same

District full weight and effect.

As appears from the foregoing authorities, this is not a

case like that of COLEGROVE v. GREEN, supra, where it

was said:

“The basis for the suit is not a private wrong, but a

wrong suffered by Illinois as a polity.”

The districting of the State of Georgia is not here attacked.

If the Fifth Congressional District as now constituted is a

gerrymander, then Appellant complains of a gerrymander

within a gerrymander, which operates directly upon the indi-

vidual elector. The wrong here complained of may be judi-

cially corrected.

The case of

McPHERSON v. BLACKER, 146 U.S. 1,

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29

which is more similar to COLEGROVE v. GREEN, supra,

than to the case at bar (and which dealt with the election of

Presidential electors by districts), is authority here on the

contention of Appellant as to discrimination within the Con-

gressional District. At page 40, the Court said:

“If presidential electors are appointed by the legisla-

tures, no discrimination is made; if they are elected in

districts where each citizen has an equal right to vote the

same as any other citizen, no discrimination is made. .. .”

To the contention urged there, as here, that “the subject-

matter of the controversy is not of judicial cognizance” be-

cause “political in their nature,” the Court, at page 23, re-

plied:

“But the judicial power of the United States extends

to all cases in law or equity arising under the Constitu-

tion and laws of the United States, and this is a case so

arising, since the validity of the state law was drawn in

question as repugnant to such constitution and laws, and

its validity sustained.”

XVI. This discrimination against Appellant and the mem-

bers of his class, by virtue of the “county unit rule” and the

statutes of the State of Georgia, is in violation of both the

“privileges and immunities” clause, and the “equal protec-

tion” clause, of the Fourteenth Amendment to the Federal

Constitution,

That the right to vote in a Congressional election is a “priv-

ilege,” as that word is used in the “privileges and immuni-

ties” clause of the Fourteenth Amendment, is beyond ques-

tion. It has been held by this Court to be a “personal right.”

The words “right” and privilege” are used in the Constitution

and the Amendment as synonyms.

See:

SLAUGHTER HOUSE CASES, 16 Wall. 36, 77.

This right to vote has been protected as a “right or privi-

lege.”

Be)

EX PARTE YARBROUGH, supra;

NIXON v. HERNDON, supra;

UNITED STATES v. CLASSIC, supra.

That the “county unit rule” is in violation of the “equal

Se ee As was

NIXON v. HERNDON, supra,

“States may do a good deal of classifying that it is

difficult to ‘believe rational, but there are limits . . .”

and counsel insist that the discrimination against electots re-

siding in Fulton ‘County exceeds all bounds of rationality. It

is purely arbitrary.

Cf. GATES v. LONG, 113 S.W. (2d) 388,

where the Supreme Court of Tennessee struck down a “county

unit” statute as being arbitrarily discriminatory, and uncon-

stitutional.

The specious argument that the “county unit” system of

counting votes follows the pattern established by the

tution for the apportionment of Senators among the States,

and that of the Electoral College, ignores the history of ‘the

Federal Convention and the raison d'etre ‘of such Corstitu-

tional provisions.

It seems hardly necessary to remind the Court that the

Delegates to the Convention represented Sovereign States,

each jealous of its sovereignty. They were conscious of the

thought, liter expressed by John Randolph, ‘that: “Asking

asking a lady to surrender part of her chastity.” The

States contended for “a participation in the governmerit,

proportioned to their superior wealth and ‘impoftance,” ‘while

the smaller States insisted upon the degree of equality which

they enjoyed under the Articles of Confederation."

In this situation, and faced with the almost impossible task

1 The Records of the Federal Convention of 1787, Farrand, Vol. Ill, p. 343, from

The Federalist, (Madison).

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31

of reconciling these diverse interests and jealousies, the dele-

gates at last brought forth a design for government so magnifi-

cent as to defy description, and arouse the awe and reverence

of succeeding generations.

The whole plan and purpose of the equality of representa-

tion in the Senate, and of the Electoral College, is explained

in a few words by James Madison, in a letter to Thomas Jef-

ferson.

“The Senate will represent the States in their political

capacity; the other House will represent the people of

the States in their individual capacy (sic). The former

will be accountable to their constituents at moderate, the

latter at short periods. The President also derives his

yay aan adele aeemnata acs acel

Thus was the integrity of each State, as a polity, preserved

by equality of representation in the Senate and equality of

voice in the appointment of a President; the interests of the

people were safeguarded by apportionment of Representa-

tives among the several States, “according to their respective

numbers.”

To compare to this sublime compromise, whereby the rights

of all are secured, the invidious “county unit” system (which

has injustice for its sole object, and which interposes an

oligarchy between the electors and the choice of their repre-

sentative in the councils of the Republic) is rank imperti-

nence.

XVII. The District Court had the right and duty to grant

the plaintiff a Declaratory Judgment as prayed.

A primary election was held, as alleged, to determine

which of three candidates should be the sole candidate of the

Democratic Party for Member of Congress from the Fifth

2Parrand, supra, Ill, p. 134. And see McPherson v. Blacker, 146 U.S. 1, 27,

et seg.

5 Constitution, Art. 1, Sec. 2, Par. 3; and see: Authorship of the Constitution of

the — Senate Document No. 787, 62d Congress, 2d Session, at

pages

: |

Congressional District of Georgia. That such nomination is

equivalent to election is a matter of general knowledge. One

candidate, for whom Appellant voted, received both a plural-

paspeesr paphitc the p. prcsmphtenyJpeerr paar hee! rsa

Under color of a statute of the State of Georgia which em-

the authorities of a political party to impose the

“county unit” rule in Congressional elections, Appellant was

deprived of his right to have his ballot counted as cast, and

the candidate for whom he voted was not declared the sole

nominee of said party for said position. Pursuant to the

Declaratory Judgment statute, Appellant brought his suit to

have declared unconstitutional said statute of the State of

Georgia, as well as all rules and regulations adopted by the

Democratic Party authorities imposing the “counti unit rule”

under authority thereof, and to enjoin the placing on the ballot

for the forthcoming general election the name of any candi-

date than the one who received the majority of votes cast in

said primary. In short, the action was one by a qualified

elector to protect his franchise.

The right to bring such action is recognized by statute

(U.S.C.A., Title 8, Sec. 43), and jurisdiction to entertain the

same is conferred expressly upon the District Courts (U.S.

C.A., Title 28, Sec. 41, sub-sec. 14).

The language of the Court in

COLEMAN -v. MILLER, 307 U.S. 433, 438,

is apposite:

“Here, the plaintiffs include twenty senators, whose

votes against ratification have been overridden and vir-

tually held for naught although if they are right in their

contentions their votes would have been sufficient to de-

feat ratification. We think the senators have a plain,

direct and adequate interest in maintaining the effective-

ness of their votes. . . . They have set up and claimed a

right and privilege under the Constitution of the United

States to have their votes given effect and the state court

has denied that right and privilege.”

In the case at bar, Plaintiff-Appellant is the representative

E LEED THROUGH= POOR COPY

guna

33

of 53,882 electors, whose votes “have been overridden and

virtually held for naught although if they are right in their

contentions their votes would have been sufficient” to nomi-

nate the candidate for whom they voted. Plaintiff-Appellant,

for himself and the members of his class has “set up and

claimed a right and privilege under the Constitution of the

United States to have their votes given effect,” and the State,

acting through the authorities of the Democratic Party, “has

denied that right and privilege.”

COLEMAN v. MILLER, supra,

was an action for mandamus, which, while it is classed as a

legal remedy, is granted or withheld upon equitable prin-

ciples.

EX PARTE SKINNER & EDDY CORP.,

265 U.S. 86, 96.

While, as held in

NIXON vy. HERNDON, supra,

private damage caused by outright denial of the right to vote

may be recovered for in a suit at law, it is submitted that no

remedy at law is adequate to protect the rights of Appellant

and those he represents.

The case of

SMILEY v. HOLM, 285 U.S. 355,

provides ample authority for the granting of equitable relief

in cases of this character. Though brought before the enact-

ment of the Federal Declaratory Judgment Act, it was, in

substance, a proceeding for a declaratory judgment and in-

junctive relief. In support of his right to equitable relief,

Appellant here alleges all that was alleged in SMILEY v.

HOLM, supra, plus “private damage.” In the latter case,

“The bill sought to have all filings for nominations

declared illegal”

and to enjoin the Secretary of State from acting under an

allegedly void law.

34

In the case at bar, Appellant seeks to have declared uncon-

stitutional certain statutes, and certain party rules and regu-

lations adopted thereunder, and to enjoin the Secretary of

State from acting under those void laws, as well as to have

declared illegal the nomination of any candidate for Member

of Congress except the one who received the majority of the

votes cast in the nominating primary.

It is respectfully submitted that the laws and rules com-

plained of are unconstitutional, and that it was the duty of

the District Court so to declare.

XVIII, XIX. The District Court had the right and duty to

grant the plaintiff an interlocutory injunction as prayed, and

to grant a permanent injunction as prayed.

Upon the grounds urged in the preceding subdivision, and

under authority of

SMILEY v. HOLM, supra,

it is respectfully insisted that the District Court was under the

duty to grant injunctive relief as prayed.

CONCLUSION

It is, therefore, respectfully submitted that this case is one

calling for the exercise by this Court of its supervisory pow-

penn pe Oe eae See eee ae tee oe oP

and the causy anded for further proceedings con-

ent ht i this Court.

. Avex. W. Samira

Croom PARTRIDGE

Counsel for Appellant.

crcecen THROLIGH= POOR COPY

APPENDIX

Pertinent statutes of the State of Georgia. References are

eine See Se (annotated), and to 1945 Pocket

Part Supplements thereto

cin dele ct Cicial x Gani thes

1945, page 8, et seq.):

Articts II, Sec. I:

Paragraph I:

“Elections by the people shall be by ballot, and only

those persons shall be allowed to vote who have been

first registered in accordance with the requirements of

law.

Paragraph II:

“Every citizen of this State who is a citizen of the

United States, eighteen years old or upwards, not labor-

ing under any of the disabilities named in this Article,

and possessing the qualifications provided by it, shall

be an elector and entitled to register and vote at any

election by the people: Provided, that no soldier, sailor

or marine in the military or naval services of the United

States shall acquire the rights of an elector by reason of

being stationed on duty im this State.

Paragraph III:

“To entitle a person to register and vote at any elec-

aste teaunia tnd shall have resided in the State one

year next preceding Doren sgneven Ngutbenedhor gw

ee ee we ix months next preceding the

election.

Paragraph IV :

“Every. citizen of this State shall be entitled to register

as an elector, and to vote in all elections in said State,

ee

36

who is not disqualified under the provisions of Section

II of Article II of this Constitution, and who possesses

the qualifications prescribed in Paragraphs II and III

of this Section, or who will possess them at the date of

the election occurring next after his registration, and

who in addition thereto comes within either of the classes

provided for in the two following subdivisions of this

paragraph.

“1. All persons who are of good character and under-

stand the duties and obligations of citizenship under a

republican form of government; or,

“2. All persons who can correctly read in the English

language any paragraph of the Constitution of the United

Sadie oe of fds tees col candle Wille ths tne bs

the English language when read to them by any one of

the registrars, and all persons who solely because of

physical disability are unable to comply with the above

requirements but who can understand and give a reason-

able interpretation of any paragraph of the Constitution

of the United States or of this State that may be read to

them by any one of the registrars.”

Section V1, Paragraph I.

RETURNS MADE TO WHOM. Returns of election for

all civil officers elected by the people, who are to be commis-

sioned by the Governor, and also for members of the General

Assembly, shall be made to the Secretary of State, unless

otherwise provided by law.

ARTICLE III

Section Ill, Paragraph I.

NUMBER OF REPRESENTATIVES. The House of Rep-

resentatives shall consist of representatives apportioned

among the several counties of the State as follows:

To the eight counties having the largest population, three

representatives each; to the thirty counties having the next

largest population, two representatives each; and to the re-

maining counties, one representative each.

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37

Section 1X, Paragraph II.

ELECTION, WHEN. The first election for members of

the General Assembly, under this Constitution, shall take

place on Tuesday after the first Monday in November, 1946,

and subsequent elections biennially, on that day, until the

day of election is changed by law.

* *+ * *

34-3201. (127) HOW ELECTIONS CONDUCTED;

OATH OF MANAGERS. Every political primary election

held by any political party, organization, or association, for

the purpose of choosing or selecting candidates for office, or

the election of delegates to conventions in this State, shall be

presided over and conducted in the manner and form pre-

scribed by the rules of the political party, organization, or

association holding such primary elections, by managers se-

lected in the manner prescribed by such rules. Such man-

agers shall, before entering upon the discharge of their du-

ties, each take and subscribe an oath that he “will fairly, im-

partially, and honestly conduct the same according to the

provisions of the law providing how primary elections shall

be held in this State, and in accordance with the laws of this

State governing regular elections for the offices of this State.”

Should one or more of the managers thus appoint

such elections fail to appear on the day of

maining manager or managers shall appoint a in their

stead and administer to them the oath herein prescribed.

managers shall take the oath before a notary public or

officer authorized tu administer oaths; but if no such

can be conveniently had, the managers may administer the

oath to each other. The oath, after being made and sub-

scribed, shall be filed in the office of the clerk of the superior

court of the county in which the primary election shall be

held, within five days after an election. (Acts 1890-1, p.

210.)

34-3202. (128) EXHIBITION AND LOCKING OF BAL-

LOT BOX; COUNT OF VOTES; CERTIFICATION OF RE-

SULTS. Before any ballots are received at such primary elec-

tions, and immediately before opening the polls, the managers

Hl

-

3

Bs

shall open each ballot box to be used in the

shall exhibit the same publicly, to show that there

lots in the box. They shall then close and

box, except the opening to receive the ballots, and

again open the same until the close of

keep a list of voters voting at the election, and shall,

receiving any ballot, administer to the voter an oath, provided

the voter’s vote is challenged, that he

has

such primary election then being held. At

election the managers shall proceed publicly to count

votes and declare the result. shall certify the result of

the election, and transmit the certificate with the tally sheet or

poll list, together with the ballots cast, and all other papers

relating to such primary election, within the time and in the

manner prescribed in this Chapter. (Acts 1890-1, p. 210.)

34.3203. (129) TIME FOR HOLDING ELECTION.

Whenever any political party shall hold primary elections for

nomination of candidates for office, such party or its authori-

ties shall cause all candidates for nominations for Governor,

ators, ju of the superior courts, justices of the Supreme

Court, ju of the Court of Appeals, solicitors general and

members of the General Assembly to be voted for on one and

the same day throughout the State at such date as may be

fixed by the State executive committee of such party, except

where a second primary shall have been called by the author-

ities of such party for any particular office on some subse-

quent day, through failure to make, for any cause, a valid

nomination at the first primary, or in consequence of a con-

test; Provided, that said executive committee shall not fix the

date for the said general primary earlier than 60 days before

the date of the general State election in November: Provided

further, that this section shall not have the effect of requiring

a primary for judges and solicitors except in their respective

circuits, or for members of the General Assembly except in

their respective counties, or for State senators except in their

counties, as the authorities of said party may authorize or

direct. (Acts 1908, p. 55.)

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22

34-3204. (130) WHERE ELECTOR SHALL VOTE. No

elector shal] vote in any such primary election in a militia

district other than the one in which he resides, or, if he resides

in a city, in a ward other than the one in which he resides, if

an election precinct shall be located in such ward. (Acts 1908,

pp. 55, 56.)

34-3205. (131) OATH OF MANAGER, WHEN TO BE

TAKEN. No person who has not first taken the oath pre-

scribed by law for managers of primary elections shall act as

manager, clerk, or assistant or in any way take part in receiv-

ing, counting, or consolidting the votes or results in any such

primary election, and no manager of any primary election

shall permit any person who has not first taken the oath now

prescribed by law for the managers of primary elections, to

act as assistant or clerk or in any way take part in receiving,

counting, or consolidating the votes or results in any such

primary election. (Acts 1908, pp. 55, 56.)

34-3206. (132) ELECTOR’S NAME MUST BE ON REG-

ISTRATION LIST. No manager of any such primary elec-

tion shall receive the ballot of any elector until he has first

ascertained that the name of such elector appears upon the

registration list furnished for such election by the registrars,

or filed by them in the office of the clerk of the superior court

of the county in which the primary election shall be held, and

34-3207. (133) RETURNS OF MANAGERS, HOW

FILED AND CONTROLLED. The returns of the managers,

with the tally sheets, lists of voters, and ballots, together with

all papers connected with said election, shall be filed in the

office of the clerk of the superior court of the county in which

said election shall be held, within four days after the final

declaration of the result thereof. One of the lists of the voters

and one of the registration lists with names of those checked

or marked as voters shall be exhibited by said clerk to anyone

desiring to inspect same, but the other documents deposited

as aforesaid shall be kept unopened and under seal until the

40

next meeting of the grand jury, to which grand jury one reg-

istration list, one list of voters, and the checked registration

list above mentioned shall be exhibited; and if no action shall

be taken thereon by the grand jury and no contest shall have

been filed within the time prescribed by the authorities of said

party, all of said election papers shall be destroyed. (Acts

1890-1, p. 210; 1908, pp. 55.56.)

34-3208. (134) OFFICIAL BALLOT SHALL BE PRO.

VIDED. The persons authorized by the rules of the party,

organization, or association to hold such primary election

shall provide an official ballot whereon shall be printed all

the names of the candidates for the various offices herein-

before named. (Acts 1908, pp. 55, 57.)

34-3209. (135) PARTY AUTHORITIES MAY FORMU.-

LATE ADDITIONAL RULES. The party authorities shall,

in all matters not provided for in this Chapter, formulate

rules and regulations for holding said primary election and

for making returns thereof to the proper party authorities.

(Acts 1908, pp. 55, 57.)

34-3210. (136) TIME AND PLACE OF ELECTION; RE-

TURNS; DECLARATION OF RESULT. Every such primary

election shall be held at.the time and place, and under the

regulations prescribed by the rules of the party, organization,

or association holding the same, and the return shall be made

and the result declared as prescribed in this Chapter. (Acts

1890-1, p. 210; 1900, p. 40; 1908, p. 56.)

34-3211. (137) CONTESTS. When a contest is filed on

the ground of illegal votes, any of which it is claimed on aff-

davit can probably be proved to be illegal by resort to the

ballots, specifying what ballots, it shall be the duty of the

clerk of the superior court to deliver the same, together with

all papers connected with said primary election, to the person

or persons who shall preside at the taking of the testimony in

such contested election, upon demand, who shall examine said

suspected ballots and none other. (Acts 1900, pp. 40, 41.)

34-3212. COUNTY UNIT VOTE. Whenever any political

party shall hold primary elections for nomination of candi-

i ee i le ee

41

dates for United States Senator, Governor, Statehouse officers,

justices of the Supreme Court, and judges of the Court of

Appeals, such party or its authorities shall cause all candi-

dates for nominations for said offices to be «oted for on one

and the same day throughout the State, which is hereby fixed

as the second Wednesday in September of each year in which

there is a regular general election. Candidates for nomina-

tions to the above-named offices who receive, respectively, the

highest number of popular votes ia any given county shall be

considered to have carried such county, and shall be entitled

to the full vote of such county on the county unit basis, that

is to say, two votes for each representative to which such

county is entitled in the lower House of the General Assembly.

If in any county any two or more candidates shall tie for the

highest number of popular votes received, the county unit vote

of such county shall be equally divided between the candi-

dates so tying. All such county unit votes shall within 10

days after such primary be accurately consolidated by the

chairman and secretary of the State committee of the political

party holding such primary, and published in a newspaper

published at the Capital, within three days after the comple-

tion of the consolidation, certified under the hands and seals

of said chairman and secretary; and the candidates for said

offices, respectively, who shall receive a majority of all the

county unit votes, throughout the entire state, upon the basis

above set forth, shall be declared by the State convention of

the party holding such primary, or the permanent chairman

thereof, or other party authority, without the necessity of a

formal ballot, to be the nominee of such party for the above-

named offices, respectively, and it shall be the duty of the

State executive committee elected or appointed at such con-

vention, or by its authority, or the chairman or secretary

thereof, or other authority of such party, to see to it that the

names of all such successful candidates shall be placed upon

the tickets or ballots of such party at the general election fol-

lowing such primary, and such successful candidates shall

be considered, deemed and held as the duly nominated

candidates of such party for the offices named: Provided,

that in the event there are only two candidates for any par-

ticular office referred to in this section, and it shall appear,

ann

after the consolidation of all of the county unit votes through-

out the State, that said candidates have received an equal

number of county unit votes, the one who shall have received

a majority of the popular votes shall be declared by the State |

convention of the party holding such primary, or the perma-

nent chairman thereof, or other party authority, without the

necessity of a formal ballot, to be the nominee of such party

for such office; and it shall be the duty of the State executive

committee elected or appointed at such convention, or by its

authority, or the chairman or secretary thereof, or other au-

thority of such party, to see to it that the name of such suc-

cessful candidate shall be placed upon the tickets or ballots

of such party at the general election following such primary,

and such successful candidate shall be considered, deemed

and held as the duly nominated candidate of such party for

the office named: Provided, further, that if no convention of

such party shall be called or held, the declaration of the result

shall be made in such manner as may be prescribed by the

State committee or other authority of such party. (Acts 1917,

pp. 183, 184.)

* * * *

34-3216. EXPENSES; PAYMENT. The expense of hold-

ing such primary elections shall be paid by the political party

which causes the same to be held. (Acts 1917, p. 189.)

34-3217. LIMITATIONS. Nothing in this law shall be

construed to provide or require any definite unit of election

for candidates for nominations for members of Congress,

judges of the superior courts, solicitors general, members of

the General Assembly and county officers; and this law shall

not be construed to require a primary for any of the last-

named officials, except in their respective districts, circuits

or counties, as provided by law: Provided, however, that ?

primaries for nomination of members of Congress, judges of

the superior courts, solicitors general and members of the

General Assembly shall be held on the date named in section

34-3212 for primaries for United States Senator, Governor,

Statehouse officers, justices of the Supreme Court and judges

of the Court of Appeals. (Acts 1917, p. 189.)

et coon VLD CLI CHe POOR COPY

34-3218. LAWS OF FORCE. All the laws in reference to

he qualification of voters and their registration shall apply

9 said elections, and no person who is not a duly qualified

nd registered voter according to law and who is not also duly

walified in accordance with the rules and regulations of the

arty holding the same, shall be entitled to vote at any such

yrimary election. (Acts 1917, p. 189.)

34-3215a. CERTIFICATE OF RESULT OF ELECTION.

mmediately after the consolidation of the votes in any such

wimary election a certificate showing the names of such can-

idates and the offices for which they are candidates, shall

e filed in the office of the Secretary of State of this State;

uch certificate to be signed by the chairman and secretary

{ the State committee of the political party holding such pri-

nary. Said certificate shall show by counties the total num-

er of popular votes and the county unit votes received by

ach candidate in any such primary election. (Acts 1943,

. 347.)

34-3223. RECOUNT OF BALLOTS: INTENT AND

PURPOSE OF LAW. The legslative intent and purpose of

his law is to effectuate fair and honest primary elections for

he nomination of candidates for public office in this State.

Acts 1941, pp. 432, 433.)

34.3224. SAME, CANDIDATES AS TO WHOM LAW

S APPLICABLE. The provisions of this law shall apply to

i primary elections hereafter held in this State by any

wolitical party for the purpose of nominating candidates for

zovernor, Statehouse officers, members of the General As-

embly, members of Congress, judges of the superior courts,

ustices of the Supreme Court, judges of the Court of Ap-

yeals, solicitors general and county officers, and all such pri-

nary elections hereafter held for the nomination of any can-

lidate for State, county, district or rational office required to

e filled by election by the people of this State or any part

hexeof, whether such primary election be held to nominate

andidates for unexpired terms or full terms. (Acts 1941,

wp. 482, 433.)

44 |

(Here follow Sections 34-3225 through 34-3236, outlin-

ing recount procedure in detail.)

34-3608. TIME FOR FILING NOTICE OF CANDIDACY

IN GENERAL ELECTION; TIME OF HOLDING PRI-

MARIES AND CONVENTIONS. In order to allow more |

adequate time for the participation of members of the mili- |

tary in elections and party primaries, the following provi-

sions are enacted in lieu of those now provided by law: |

1. All candidates for national and state offices, or the proper

authorities of the political party nominating them, shall file

notice of their candidacy, giving their names and the offices

for which they are candidates, with the Secretary of State, at

least 90 days prior to the regular election. All candidates

for district and county offices either by themselves or by the

proper authorities of the party nominating them, shall file

notice of their candidacy with the ordinary of the county at

least 90 days before the regular election. |

2. Whenever any political party shall hold primary elec-

tions for nomination of candidates for office for Governor,

Statehouse officers, members of Congress, United States Sen-

ators, judges of the superior courts, justices of the Supreme

Court, judges of the Court of Appeals, solicitors general, and

members of the General Assembly, which are by law voted on

one and the same day throughout the State, said primary may

be held on such date as may be fixed by the State executive

committee of such party, and the State executive committee is

authorized to fix such time for the said primary, second pri-

mary, or party convention as it may determine without respect

to the time now provided by law as the date on which the said

primary, second primary, or convention shall be held. (Acts

1944, Ex. Sess., pp. 2, 4.)

34-1904. BALLOTS IN ELECTION OTHER THAN

PRIMARY ELECTIONS. In all elections other than primary |

elections held under the auspices of a political party, it shall

be the duty of the ordinary to provide and furnish at the ex-

pense of the county, and in case of purely municipal elections,

at the expense of the municipality, official ballots for all such

elections, having printed thereon, in separate columns, the

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as

45

names of the candidates of each political party, designating

the names of the political party to which they belong, and

also the names of any other candidates for the offices to be

filled at said election; and in case of election for President

and Vice President of the United States, the names of the

candidates for such offices may be added with the electors

and party designation: Provided, however, it shall not be the

duty of said officers to place the names of any candidates on

said official ballots, unless notice of their candidacy shall be

given in the following manner, to wit: All candidates for

national and State offices, or the proper authorities of the

political party nominating them, shall file notice of their can-

didacy, giving their names and the offices for which they are

candidates, with the Secretary of State, at least 30 days prior

to the regular election, except in cases where a second primary

election is necessary: Provided, further, that such candidate

shall also file a petition for that purpose signed by not less

than five per cent. of the registered voters in that territory or

that such political party shall have cast no less than five per

cent. of the votes in the last general election next preceding

for the election of such officer; but nothing in this proviso

shall be construed as applying to special elections. The names

of such candidates shall be filed with the Secretary of State

as soon as possible after the determination of the result of

said second primary. All candidates for district and county

offices, either by themselves or by the proper authorities of

the party nominating them, shall file notice of their candidacy

with the ordinary of the county at least 15 days before the

regular election, and all candidates for municipa, offices shall

file notice of their candidacy, either by themselves or by the

proper authorities of the party nominating them, with the

mayor or other chief executive officer of the municipality at

least 15 days before the regular election. In the event of the

resignation or death of any nominee of any political party

prior to the regular election, at which the name of said nom-

inee is to appear on the official ballot, said vacancy in nom-

ination shall be filled in such manner as may be determined

by the proper authorities of such party. Said officers shall

also have printed on said ballots such language as may be

necessary for the voters to express their desires as to any

%

question or matter which may be submitted at any such elec-

tion. In all other particulars said ballots shall be arranged,

printed, and prepared for regular elections as provided in

section 34-1903. (Acts 1922, p. 100; 1943, p. 292.)

ACTS 1946 (approved Feb. 1, 1946), amending Code

Section 40-601, par. 7.

Section 3. That in lieu of paragraph 7 of said Section 40.

601 of the Code of Georgia of 1933 a new paragraph to be

known as paragraph 7, is hereby enacted to read as follows:

. “The Secretary of State shall furnish each Ordinary of the

State the rtm of official ballot, all blank forms, including

tally sheets, blank lists of voters, forms of returns, certif-

cates and directions to be used in all elections for United

States Senate, Governor, electors of President and Vice-Pres-

ident of the United States, representatives to Congress, Secre-

tary of State, State Treasurer, Comptroller General, Attorney

General, State Superintendent of Schools, Supreme Court

(Court) of Appeals, judges of the Superior Court, Solicitor

General, Public Service Commission, Commissioner of Labor,

members of the General Assembly, and county officers. The

Secretary of State shall certify to the respective Ordinaries

the names of all candidates for national and state offices who

have qualified as such as provided in Section 34-1904 of the

Code of Georgia and in case there are one or more persons

purporting to represent the same political party or candidate

it shall be the duty of the Secretary of State to determine such

an issue. The Ordinaries of the respective counties shall not

be required to add any other names for national and state

offices on the official ballot except upon certificate of the Sec-

retary of State.

CODE SECTION 34-2101. (94.) PROVISIONS GOVERN.

ING ELECTIONS OF MEMBERS OF GENERAL ASSEM-

BLY APPLICABLE TO CERTAIN ELECTIONS IN CER-

TAIN PARTICULARS. Elections for Governor, Members of

Congress, United States Senators, electors for President atid

Vice President, State Treasurer, Comptroller General, and

Attorney General, shall be governed by the same rules 44

those governing the elections for members of the General

Assembly, in the following particulars:

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47

1. Oaths to be taken by the voters.

2. Class of persons to hold the election and the oath to be

taken by them.

3. Places and the time of day to hold them.

4. Manner of conducting and returning them, including

all special elections, and in the duty of the clerks of the

superior courts and the grand juries.

5. Several penalties attached to the managers or other

persons.

6. Furnishing of blanks by the Governor.

7. In all other respects where applicable, and there is not

a contrary provision of law.

CODE SECTION 34-1303 (9) (Pocket Part 1945).

MANNER OF CONDUCTING ELECTIONS

9. CONSOLIDATION AND RETURNS TO SECRETARY

OF STATE. The managers to consolidate the vote of the

county shall consist of all those who officiated at the county

site, or a majority of them, and at least one from each pre-

cinct. They shall make and subscribe two certificates, stating

the whole number of votes each person received in the county;

one of them, together with one list of voters and one tally sheet

from each place of holding the election, shall be sealed up

and without delay mailed to the Secretary of State; the other,

with like accompaniment, shall be directed to the clerk of the

superior court of the county and be by him deposited in his

office. After the clerk of the superior court has retaned same

for the period required by law, he shall transmit same to the

tax collector or tax commissioner, as the case may be, for his

records. Each of said returns shall contain éopies of the orig-

inal oaths taken by the managers of the courthouse and pre-

cinct. (Acts 1921, p. 91; 1945, pp. 129, 135.)

U. S. C. A., TITLE 28, SEC. 345.

Section 345. (JUDICIAL CODE, SECTION 238.) AP-

PELLATE JURISDICTION FROM DECREES OF UNITED

STATES DISTRICT COURTS. A direct review by the Su-

a

preme Court of an interlocutory or final judgment or decree

of a district court may be had where it is so provided in the

following sections or parts of sections and not otherwise:

(1) Section 29 of Title 15, and section 45 of Title 49.

(2) Section 682 of Title 18, where the decision of the dis-

trict court is adverse to the United States.

(3) Section 380 of this title.

(4) So much of sections 47 and 47a of this title as relates

to the review of interlocutory and final judgments and decrees

in suits to enforce, suspend, or set aside orders of the Inter-

state Commerce Commission other than for the payment of

money.

(5) Section 217 of Title 7. (Mar. 3, 1911, c. 231, sec-

tion 238, 36 Stat. 1157; Jan. 28, 1915, c. 22, section 2, 38

Stat. 804; Feb. 13, 1925, c. 229, section 1, 43 Stat. 938.)

U. S. C. A., TITLE 28, SEC. 380.

(JUDICIAL CODE, SECTION 266, AMENDED.) SAME;

ALLEGED UNCONSTITUTIONALITY OF STATE STAT-

UTES; APPEAL TO SUPREME COURT. No interlocutory

injunction suspending or restraining the enforcement, opera-

tion, or execution of any statute of a State by restraining the

action of any officer of such State in the enforcement or exe-

cution of such statute, or in the enforcement or execution of

an order made by an administrative board or commission act-

ing under and pursuant to the statutes of such State, shall be

issued or granted by any justice of the Supreme Court, or by

any district court of the United States, or by any judge there-

of, or by any circuit judge acting as district judge, upon the

ground of the unconstitutionality of such statute, unless the

application for the same shall be presented to a justice of the

Supreme Court of the United States, or to a circuit or district

judge, and shall be heard and determined by three judges, of

whom at least one shall be a justice of the Supreme Court or

a circuit judge, and the other two may be either circuit or dis-

trict judges, and unless a majority of said three judges shall

concur in granting such application. Whenever such applica-

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49

tion as aforesaid is presented to a justice of the Supreme

Court, or to a judge, he shall immediately call to his assist-

ance to hear and determine the application two other judges:

PROVIDED, HOWEVER, That one of such three judges shall

be a justice of the Supreme Court, or a circuit judge. Said

application shall not be heard or determined before at least

five days’ notice of the hearing has been given to the gover-

nor and to the attorney general of the State, and to such other

persons as may be defendants in the suit: PROVIDED, That

if of opinion that irreparable loss or damage would result to

the complainant unless a temporary restraining order is

granted, any justice of the Supreme Court, or any circuit or

district judge, may grant such temporary restraining order

at any time before such hearing and determination of the

application for an interlocutory injunction, but such tem-

porary restraining order shall remain in force only until the

hearing and determination of the application for an inter-

locutory injunction upon notice as aforesaid. The hearing

upon such application for an interlocutory injunction shall be

given precedence and shall be in every way expedited and be

assigned for a hearing at the earliest practicable day after

the expiration of the notice hereinbefore provided for. An

appeal may be taken direct to the Supreme Court of the

United States from the order granting or denying, after notice

and hearing, an interlocutory injunction in such case. It is

further provided that if before the final hearing of such ap-

plication a suit shall have been brought in a court of the State

having jurisdiction thereof under the laws of such State, to

enforce such statute or order, accompanied by a stay in such

State court of proceedings under such statute or order pend-

ing the determination of such suit by such State court, all

with diligence and good faith.

the presence of three judges shall

ing in such suit in the district court;

#”O

the Supreme Court may be taken from a final decree gran

or denying a permanent injunction in such suit. (June 18,

1910, c. 309, ion 17, 36 Stat. 557; Mar. 3, 1911, ¢. 231,

Section 266, 36 Stat. 1162; Mar. 4, 1913, «. 160, 37 Stat.

1013; Feb, 13, 1925, c. 229, Section 1, 43 Stat. 938.)

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