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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1946
- **Citation:** 329 U.S. 675

## Text

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-

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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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Sec. 34-3217 16, 17, 24
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DU ED 0.0 06.6 cosveccccceséccoceecessecces w
De EE hawedbeesedencdvebecececdcccesee 4A }
Sec. 40-601 (As amended Acts 1946)......... 46
ANE aeObactubceactecsecoccccesocéouse 46
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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

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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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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0166%3A2. Public record. Not legal advice.