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

INDEX

Subject Index

Introductory statement

A substantial federal question is involved

. The complaint, while concerning political action,

sought protection from private wrongs to appellants

and the class they represent 6-11

. Relief may be effectively granted 12-16

(a) By declaring the statute under attack uncon-

stitutional

(b) By approving injunctive relief against the

Secretary of State

Preliminary inquiry should be limited to the juris-

diction of this Court on appeal. Questions of

equitable jurisdiction to grant relief go to the

merits of the case 17-18

Appendix “A” — Complaint and amendment thereof

consolidated into one instrument 19-33

Table of Cases Cited

Attorney General v. Suffolk County Commissioners, 224

Mass. 598, 113 N. E. 581 8

Bell v. Hood, —.. U.S. —., 66 S. Ct. 773, _ L. Ed. ___4, 18

Binderup v. Pathe Exchange, 263 U. S. 291, 44 S. Ct. 96,

68 L. Ed. 308. 18

Breedlove v. Suttles, 302 U. S. 277, 58 S. Ct. 205, 82

L. Ed. 252 3

Busch v. Jones, 184 U. S. 598, 22 S. Ct. 511, 46 L. Ed.

207 .

16

Colegrove v. Green, ... U. S. ... ,66 S. Ct. 1198, — L.

Ed. 9,11

Creager v. Bryan, 287 Fed. 362 9

Gates v. Long, 172 Tenn. 471, 113 S. W. 2d 388.060-SESEesesiS

Giles v. Harris, 189 U. S. 475, 23 S. Ct. 639, 47 L.

Ed. 909 10

Guinn v. United States, 238 U. S. 347, 35 S. Ct. 926, 59

L. Ed. 1340 3°

Table of Cases Cited (Contd.)

Honeyman v. Hanan, 300 U. S. 14, 57 S. Ct. 350, 81

_ L.Ed. 476... 16

Hughes Federal Practice (1931) Par. 268 9

Lane v. Wilson, 307 U. S. 268, 59 S. Ct. 872, 83 L.

Ed. 1281 . 7,10

McPherson v. Blacker, 146 U. S. 1, 13 S. Ct. 3, 36 L.

Ed. 869 3

Minnesota v. National Tea Co., 309 U. S. 551, 60 S. Ct.,

676, 84 L. Ed. 920 16

Minor v. Happersett, 21 Well. 162, 22 L. Ed. 627... 3

Nixon v. Condon, 286 U. S. 73, 52 S. Ct. 484, 76 L.

Ed. 984 7

Nixon v. Herndon, 273 U. S. 536, 47 S. Ct. 446, 71 L. Ed.

759 4, 6,7

North Chicago R. Mill Co. v. St. L. Ore & Steel Co., 152

_ U.S. 596, 14S. Ct. 710, 38 L. Ed. 565. 16

Pope v. Williams, 193 U. S. 621, 24 S. Ct. 573, 48

L. Ed. 817 3

Public Serv. Co. of N. Ill. v. Corboy, 250 U. S. 153, 39

S. Ct. 440, 63 L. Ed. 905. — 15

Sawyer, In Re: 124 U. S. 200, 8 S. Ct. 482, 31 L. Ed. 402 10

Siebold, Ex parte, 100 U. S. 371, 25 L. Ed. 717... 4, 7

Smith v. Allwright, 321 U. S. 649, 64 S. Ct. 757, 88

L.. Ed. 891 7

wa” Ames, 169 U. S. 466, 18 S. Ct. 418,42 L. Ed.

14

Snowdon v. Hughes, 321 U. S. 1, 64 S. Ct. 397, 88

L. Ed. 497 4,7

Sterling v. Constantin, 287, U. S. 378, 53 S. Ct. 190,

77 L. Ed. 375. 14

Swafford v. Templeton, 185 U. S. 487, 22 S. Ct. 783,

46 L. Ed. 1005. 18

Taylor v. Beckham, 178 U. S. 548, 20 S. Ct. 890, 44

L. Ed. 1187 10

The Fair v. Kohler Die & Specialty Co., 228 U. S. 22,

33 S. Ct. 410, 57 L. Ed. 716. 18

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Table of Cases Cited (Contd.)

United States v. Classic, 313 U. S. 299, 61 S. Ct. 1031,

85 L. Ed. 1368. 4

United States v. Moseley, 238 U. S. 383, 35 S. Ct. 904,

59 L. Ed. 1355 4

Walton v. House of Representatives, 265 U. S. 487, 44

S. Ct. 628, 68 L. Ed. 1116. 10

Wiley v. Sinkler, 179 U. S. 58, 21 S. Ct. 17, 45 L. Ed.

84 4,7

Yale Law Journal (1923) 33 Y. L. J. 115. 7

Yarbrough, Ex parte, 110 U. S. 651, 4 S. Ct. 152, 28

L. Ed. 274. 3,7

Young, Ex parte, 209 U. S. 123, 28 S. Ct. 441, 52 L.

Ed. 714

14

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IN THE

SUPREME COURT OF THE UNITED STATES

MRS. ROBERT LEE TURMAN and )

CULLEN B. GOSNELL

Appellants

vs.

J. LON DUCKWORTH, as Chairman

Georgia State Democratic Executive

Committee ;

MISS GRACE CANNINGTON, as

Secretary Georgia State Democratic

Executive Committee;

THE STATE DEMOCRATIC

EXECUTIVE COMMITTEE OF THE

STATE OF GEOGIA,

an unincorporated association; and

BEN W. FORTSON, JR., as Secretary

of State of Georgia

Appellees |

1946

BRIEF OF APPELLANTS IN OPPOSITION TO

APPELLEES’ MOTION TO DISMISS OR AFFIRM

Now come the Appellants, pursuant to Rule 12 and Rule 7

of the Supreme Court of the United States, within twenty

days after service upon Appellants of Appellees’ Statement

of Matters Making Against the Jurisdiction of the Supreme

Court of the United States and Motion to Dismiss or Affirm,

and file this, Appellants’ Brief in Opposition to Appellees’

Statement and Motion, and show:

1

L

" INTRODUCTORY STATEMENT

Only on account of the possibility of a decision being

made upon A ” Motion before briefs are received in

the Court on the merits of the case, advantage is being taken

of th Gecsidens ef tes vo dhaotan Bete ts Caco

to the Motion.

While it seems unthinkable that the serious and substan-

tial constitutional questions raised in the case would be

summarily disposed of, as a matter of cautious concern and

in advance of full briefs on the subject, we respectfully call

the Court’s attention to certain matters pertinent to jurisdic-

tion.

Brief reference to some of the more important cases is

hereafter made, but obviously an exhaustive treatment of

the subject can not be made in advance of filing full briefs

on the merits of the case, now in course of preparation but

not yet ready for filing in this Court.

For the convenience of the Court we attach hereto as

Appendix A a copy of the Complaint and amendment thereof

(omitting verification) which is consolidated into one in-

strument.

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IL

A SUBSTANTIAL FEDERAL QUESTION IS

INVOLVED

The right to vote in any election by the people in Georgia

for Governor and other State house officers is conferred

by the State Constitution but as so conferred such right is

not qualified so as to permit a difference in valuation between

an individual’s vote in one sub-area and another sub-area in

a State-wide election or primary. By a State statute, i.e. the

county unit law now under attack, there is State action

grossly and purposely discriminatory in the evaluation of

petitioners’ votes after the same been initially cast.

When a State statute so deprives a citizen of the United States

of his rightful evaluation of the vote which he has cast there

arises a substantial federal question under the equal protec-

tion clause of the 14th Amendment of the Constitution of

the United States.

The cases cited by Appellees, on their asserted point

that because the right to vote in a State election is not feder-

ally conferred no substantial federal question is involved,

Minor v. Happersett, 21 Wall. 162,22 L. Ed. 627;

Yarborough, 110 U. S. 651, 4 S. Ct. 15 ey

3

869; Guinn v. United States, 238 U. S. 347, 35 S. Ct. 926,

59 L. Ed. 1340; Breedlove v. Suttles, 302 U. S. 277 ‘

Ct. 205, 82 L. Ed. 252, do not comprehend the situation or

facts of the present case. The further rule is applicable and

pertinent to-wit: “provided, of course, no discrimination is

made between individuals, in violation of the Federal Con-

stitution.”

Pope v. Williams

193 U. S. 621, 24 S. Ct. 573, 575

48 L. Ed. 817

g

~”

In the present case the discrimination has been made be-

tween individuals, by State statute, in violation of the equal

protection clause of the 14th Amendment to the Federal

Constitution.

3

Nixon v. Herndon,

_ 273 U. S. 536, 47 S. Ct. 446, 71 L. Ed. 759;

U. S. v. Classic,

313 U. S, 299, 61 S. Ct. 1031, 85 L. Ed. 1368;

Snowdon v. Hughes,

321 U.S. 1, 64 S. Ct. 397, 88 L. Ed. 497;

Ex parte Siebold,

100 U. S. 371, 25 L. Ed. 717;

Wiley v. Sinkler,

179 U. S. 58, 21 S. Ct. 17, 45 L. Ed. 84

The doctrine with reference to protection and enforce-

ment of rights arising under the Constitution and laws of

ment (also to the 15th Amendment), not to the equal pro-

tection clause. For instance, it is noted that in the recovery

allowed in Nixon v. Herndon, supra, it was commented that

it was unnecessary to consider the 15th Amendment “because

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

infringement of the 14th.” A federally derived right is differ-

ent from a federally protected right. The protection

clause of the 14th Amendment is not dependent upon the

right (protection of which is denied by State action) being

a right granted by the laws of Constitution of the United

States. “The laws” which must be administered equally are

State laws — with Federal protection against discrimination.

Bell v. Hood,

Page 774, Headnote 6 of 66 S. Ct.

The right to have one’s vote counted (even though the

wtih swt se segperle yobwad- emg adie go bed

tection (under the equal protection clause of the 14th

Amendment to the Federal Fons Comateation} as the right to put

a ballot in the box under a voting privilege conferred by the

Constitution or laws of the United States.

U. S. v. Moseley,

238 U. S. 383, 35 S. Ct. 904, 50 L. Ed. 1455.

In dealing with an attack on a similar statute depreci-

ating by counties the value of individual votes, the Supreme

4

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beer Constitutions. mere

“F Y ‘enn.

471, 113 S. W. 2d 388, 391, he Coun

’ “Under protection clauses of State (Tennessee )

and Federal pee Rpthacanp apneradona yr lb sm

one class of voter the right to vote in pene rimary elections

of their party and deprive another of the right

unless discrimination can be justified on some rational

basis. ..... The State may not without reason abridge

the right of voter to vote in primary election of their

party in one class of voters and leave the right whole in

another class.”

Ii.

THE COMPLAINT, WHILE CONCERNING PO-

LITICAL ACTION, SOUGHT PROTECTION

FROM PRIVATE WRONGS TO APPELLANTS

AND THE CLASS THEY REPRESENT.

Appellees contend that the questions involved in this case

are purely political questions and that equity is without juris-

diction to enforce a purely political right. It is submitted

that the traditional doctrine that equity will not ordinarily

interfere with purely political matters has no application in

the case at bar.

This action is not merely to rid the State of an evil and

invalid electoral system, but is one thu: seeks to strike down

a statute plainly and deliberately discriminating against ap-

pellants. Appellants are not complaining that Fulton, or

DeKalb County, has only six unit votes, but rather that ap-

pellants, as individual voters, have only a fractional part of

the voting effectiveness of other voters in the voting area

(statewide). The system of giving effect to county lines in

evaluating votes is highly discriminatory in that the Consti-

tution of Georgia gave to each voter the same right. The

particular number of votes any county has is merely illustra-

tive of the extent of the discrimination caused by the county

unit system.

It makes no difference that the subject matter of this

controversy involves political rights. If the appellants had

been wholly denied the right to cast their ballots, they could

maintain an action in the Federal Court for damages.

“The objection that the subject matter of the suit is

political is little more than a play upon words. Of course

the petition concerns political action but it alleges and

seeks to recover for private damages and that private

damage may be caused by such political action and may

be recovered for in a suit at law concurrently has not

been doubted for over 200 years.”

Nixon v. Herndon,

273 U. S. 536, 47 S. Ct. 446, 71 L. Ed. 759.

6

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v. Hughes,

321 U. S. 1, 64 S. Ct. 397, 88 L. Ed. 497.

See also:

Smith v. Allwright,

321 U. S. 649, 64 S. Ct. 757, 88 L. Ed. 891;

Nixon v. Condon,

286 U. S. 73, 52 S. Ct. 484, 76 L. Ed. 984;

Lane v. Wilson,

307 U. S. 268, 59 S. Ct. 872, 83 L. Ed. 1281;

Wiley v. Sinkler,

179 U. S. 58, 21 S. Ct. 17, 45 L. Ed. 84.

It is also clear that the criminal courts will act in ap-

propriate cases of fraud in elections.

Ex parte Yarbrough,

110 U. S. 651, 4S. Ct. 152, 28 L. Ed. 274;

Ex parte Siebold,

100 U. S. 371, 25 L. Ed. 717.

Equity like the courts of law will act to protect from

injury and redress a wrong. The only points in question in

the exercise of such jurisdiction are the existence of adequacy

of another remedy at law and the propriety of exercising

such jurisdiction. In political matters the propriety of exer-

cising jurisdiction applies with especial emphasis, because

of the extreme importance of the elective process in our

government. However, when the right is clear, the threatened

evil is great, and the result unattainable by other remedies,

equity should assume jurisdiction as a matter of right.

See: LONG, “Equitable Jurisdiction to Protect Person

Rights.” (1923) 33 Yale L. J. 115.

Appellants are entitled in this case to the protection of

an injunction. Such relief will not invade the exclusive func-

tions of any court of law, or other branch of our govern-

7

The eppiliant’ prayers for relief in equity are based

upon a definite legal right and not merely upon privilege.

In the case of Attorney General v. Suffolk County Com-

missioners, 224 Mass. 598, 113 N.E. 581, the Court in dis-

cussing the right to vote said:

“The right to vote is a fundamental personal political

right. Unlawful interference with the right to vote,

whether on the part of public officers or private persons,

is a private wrong for which the law affords a remedy

although it might have significant political results. Any

act of the Legislative limiting or in any way interfering

with this right would be invalid. While the right to vote

for members of the Legislature is in a sense a political

right, it is also a precious personal right........

circumstances that political consideration might be con-

nected with rights affords no justification to courts for

refusing to adjudicate causes rightfully pending before

them. Such a controversy, even though political in many

of its aspects, is of judicial cognizance ...... There can

be no equality among citizens if the vote of one county

have considerably more than that of another in electing

public officers.”

Appellants have the undoubted right to vote on an

equality with other voters. They have with equal certainty

been denied this right by statute which has so diluted their

votes as.to render them almost worthless. They are entitled

to invoke the equal protection clause of the Fourteenth

Amendment. To say the Federal Court will not intervene and

use its equitable powers to protect such a right would be to

admit the guaranty of the Fourteenth Amendment is not

operative.

There is no political tribunal in Georgia for the cor-

rection of this injury.

7

The District Judges in their opinion in this case below

stated:

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The remedies available at law are inadequate.

Appellants could not sue for nor measure their damages.

As pointed out hereinabove, the State of Georgi

equal protection clause in its Constitution. Further, no remedy

in the nature of a mandamus proceeding is available in the

Federal Courts in a case of this character.

F

3

Creager v. Bryan,

287 Ftd. 362;

Hughes, “Federal Practice” (1931) Para. 268.

Mr. Justice Black, in his dissenting opinion in the case

of Colegrove vs. Green, 66 S. Ct. 1198, advance sheet of July

1, 1946, aptly stated: .

“Under these circumstances, and since there is no

adequate remedy for depriving a citizen of his right to

vote, equity can and should grant relief.”

Appellants instituted this action at the proper time.

The District Court Judges further stated in their opinion:

“A better case for interfering with the application of

the unit rule by the Democratic Executive Committee

would have been presented if the Plaintiffs had promptly

moved to assert its constitutional invalidity and to stop

its application when the executive committee, which had

the right to determine whether a primary or a convention

should be held for nominations, did call the Primary of

July 17th, and published the rules under which it should

be conducted, including expressly the county unit rule.”

9

Giles v. Harris,

189 U. S. 475, 23 S. Ct. 639, 47 L. Ed. 909.

Walton v. House of Representatives (265 U. S. 487, 44

S. Ct. 628, 68 L. Ed. 1116). Equitable relief denied, an

adequate remedy at law was available.

Taylor vs. Beckham (178 U. S. 548, 20 S. Ct. 890, 44 L.

Ed. 1187). It was held inappropriate for the Federal Court

to go beyond its sphere of action and interfere with the

decision of the Supreme Court of Kentucky sustaining a de-

termination of an election contest made by the General

Assembly under the authority of the State Constitution.

Ciles v. Harris, supra. Court of equity is not prepared to

supervise the voting in Alabama.

Lane v. Wilson (307 U. S. 268, 59 S. Ct. 872, 83 L. Ed.

1281). This was a case where an appropriate action at law

for damages was brought to enforce the Fifteenth Amend-

ment.

10

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Ht

a

nad

IV.

RELIEF MAY BE EFFECTIVELY GRANTED

£6) By Gortecing Gs Stents ender tach: encom

(b) By approving injunctive relief against the Secre-

tary of State.

The case as filed sought to prevent the placing of the

name of the candidate for Governor, nominated by the method

claimed to be illegal, on ballots for the election to be held

on November 5th, 1946. The Complaint was filed four days

before this action was taken by one of the defendants, the

Secretary of State. This action by him was after jurisdiction

had been taken by the District Court and any acts done by

the defendant in the meantime were subject to final decree

in the case. The power of the Court attached as of the date

the suit was allowed to be filed. Acts taken thereafter by de-

fendants are within control of the Court and subject to subse-

quent decree holding them illegal and ineffective. At the time

of the hearing by the three-Judge Court, ballots containing

the name of the person so nominated had been furnished to

the County authorities for the conduct of the election. But it

was shown by amendment that the time had also elapsed by

law for the filing of any other candidate or the placing of

any other name on the ballot and it was shown that but for

the particular provision of the statute under attack, the name

of this candidate would not have:been placed on the ballots

as the nominee. It was shown that if the votes of Plaintiffs,

and others similarly situated, had been counted on an equal

basis with other votes in the State, the name of another can-

didate would have been placed on the ballot as the nominee

since the other candidate received the highest number of

votes, a plurality, or else that no nominee was chosen since

no one received a majority. But is was also shown at the time

of the hearing that the election process in the case of a can-

didate for Governor is not over with the ballotting in the

General Election to be held on November Sth, 1946, since

12

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ter

FF

rE

F 5 F

P FES

i

if

arr

af

i

the name of any other candidate to

ballots, Plaintiffs prayed for injunction

of State to prevent him from transmitting the

showing the name of a candidate so illegally nominated

chosen. Since such candidate was illegally nominated,

election in which the ballots contained only the name of

A

1

FEE

*Article V, Section 1, Paragraph III of the Constitution of

Georgia, provides:

“The returns for every election of Governor shall be

sealed up by the managers, separately from other returns,

and directed to the President of the Senate and Speaker of

the House of epresentatives, and transmitted to the Secretary

of State, who shall, without opening said returns, cause the

same to be laid before the Senate on the day after the two

houses shall have been organized, and they shall be trans-

mitted by the Senate to the House of Representatives.”

Article V, Section I, Paragraph IV of the Constitution of

Georgia, provides in substance that the General Assembly

shall convene and open and publish the returns of the election

and that the person receiving the majority of the whole

number of votes shall be declared duly elected Governor.

13

|

E

prayed for, is a question to be determined upon a full con-

sideration of the case, but if they were entitled to it, cer-

tainly it could be granted and the could not become

reaps ov phat mur bby Pte whether on the merits

the is in reality against the State in the sense

in which the is the party to the suit to be sued, only

with its consent, is a matter which this Court would de-

termine—in the exercise of the jurisdiction over the con-

troversy — after full ing. This relief against the Secre-

tary of State was incidental to the main relief prayed for,

. Two of its citizens, for themselves

the United States Constitution against the discriminating pro-

vision of an Act of its General Assembly; the wrong to them

is not yet complete, it is still in process; they seek to stop it

that the persons injured may have appropriate relief. In

such a case the suit is not against the State within the mean-

ing of the State’s immunity from suit.

Sterling v. Constantin,

287 U.S. 378, 53 S. Ct. 190, 193, 77 L. Ed. 375;

Ex parte Young,

209 U. S. 123, 28 S. Ct. 441, 442, 449, 450, 451,

52 L. Ed. 714;

Smyth v. Ames,

169 U. S. 466, 18 S. Ct. 418, 42 L. Ed. 819.

Although a state may not be sued without its consent,

nevertheless a State Officer acting under color of his official

authority may be enjoined from carrying into effect a State

law asserted to be repugnant to the Constitution of the United

States, even though such injunction may cause the State law

to remain inoperative until the constitutional question is

judicially determined.

14

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P

statement is authority for the position that the Secretary of

“In making an officer of the state a party defendant

in a suit to enjoin the enforcement of an act alleged to

be unconstitutional, it is plain that such officer must have

some connection with the enforcement of the act, or else

it is merely making him a party as a representative of

the state, and thereby attempting to make the state a

party.

“It has not, however, been held that it was necessary

that such duty should be declared in the same act which

is to be enforced. In some cases, it is true, the duty of

enforcement has been so imposed (154 U. S. 362, 366

Sec. 19 of the act) but that may possibly make the duty

more clear; if it otherwise exists it is equally efficacious.

The fact that the state officer, by virtue of his office, has

some connection with the enforcement of the act, is the

important and material fact, and whether it arises out of

the general law, or is specially created by the act itself,

is not material so long as it exists.”

Besides the prayer for injunctive relief against the Sec-

retary of State as to acts not yet performed and the prayer

for decree as to acts already performed, the Petitioners

sought declaratory judgment and that the discriminatory

provisions of the statute be declared and adjudicated uncon-

stitutional as violative of the equal protection clause of the

14th Amendment to the United States Constitution. In any

event, it could not be doubted that at the time the Petition

was allowed filed there was an equitable question that had

not become moot and the right to declaratory judgment is

based on equity at the date of filing.

15

Equtable jurisdiction must be determined by the condi-

tions existing at the time the bill is filed and not by conditions

which come into existence after the commencement of the suit.

Busch v. Jones,

184 U. S. 598, 46 L. Ed. 707, 22 S. Ct. 511;

North Chicago Rolling Mill Co. v. St. Louis Ore

& Steel Co.,

152 U. S. 596, 38 L. Ed. 565, 14 S. Ct. 710.

Acts violative of petitioners’ constitutional rights per-

formed by the Secretary of the State of Georgia subsequent

to the filing of the petition in this case therefore cannot affect

the jurisdiction of the Federal Courts to award such relief as

is proper upon a hearing on the merits. The United States

Supreme Court in the exercise of its appellate jurisdiction,

has power, not only to correct errors of judgment under re-

view, but to make such other disposition of the case as justice

requires.

Honeyman v. Hanan,

300 U. S. 14, 57 S. Ct. 350, 81 L. Ed. 476;

State of Minnesota v. National Tea Co.

309 U. S. 551, 60 S. Ct. 676, 84 L. Ed. 920.

Contention is made in Appellees’ Motion that the Com-

plaint seeks by injunction against the Secretary of State, in

purpose and effect, to control the action of the General As-

sembly of Georgia. It does not. What the Legislature will do

when it finds there are no election returns transmitted to it

will be for it in its full competence to decide. We have not

sought to control its action and this but emphasizes that the

question does not become moot until that time.

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v. Daa!

PRELIMINARY INQUIRY SHOULD BE LIMITED

‘TO THE JURISDICTION OF THIS COURT ON

APPEAL. QUESTIONS OF 7 UITABLE JURIS-

DICTION GRANT GO TO THE

MERITS OF THE CASE.

Decision of so important and substantial a question,

regardless of ultimate disposition, should not, we respect-

fully submit, be made upon a mere preliminary examination

to ascertain this Court’s jurisdiction and in advance of full

consideration on the merits of the case. The Complaint at-

tacked a statute as being violative of the “equal protection of

the laws” clause of the 14th Amendment to the United States

Constitution. It can not be argued that the attack made or

the question raised by it is frivolous. The Complaint sought

injunctive relief against State and party officials and was

heard by a three-Judge Court, appeal being allowed as a

matter of right, all in accordance with statute. So the only

jurisdictional question that can arise at this time is one that

would be determinative of the whole controversy. The order

appealed from denies aa injunction “because of ——— the con-

clusion of law filed herewith.” One of the “conclusions of

law” was that the statute of 1917 under attack was not un-

constitutional. Therefore, to dismiss the appeal would in

effect sustain the constitutiorslity of the county unit law. To

affirm it would have the same effect. The question is one of

too much public interest (with such far reaching possibilities

of establishing a basis of future discrimination by legisla-

tures in states in which the state constitution omits an equal

protection clause) to be disposed of without a full hearing

and argument.

Jurisdiction is not defeated by the possibility that the

averments might possibly fail to state a cause of action on

which petitioners could actually recover. For it is well settled

that the failure to state a proper cause of action calls for a

judgment on the merits and not for a dismissal for want of

jurisdiction. Whether the complaint states a cause of action

on which relief could be granted is a question of law and

just as issues of fact it must be decided after and not before

17

allegations in the complaint do not state a ground for

relief, then dismissal of the case would be on the merits, not

for want of jurisdiction.

Bell v. Hood,

No. 344, decided April 1, 1946.

U.S , 66 S. Ct. 773,. L. Ed ;

Swafford v. Templeton,

185 U. S. 487, 493, 494, 22 S. Ct. 783, 785, 786,

46 L. Ed. 1005;

Binderup v. Pathe Exchange,

263 U. S. 291, 305-308, 44 S. Ct. 96-98-99,

68 L. Ed. 308.

The previously carved out exceptions to the foregoing

are that a suit may sometimes be dismissed for want of juris-

diction where the alleged claim under the Constitution or

federal statutes clearly appears to be immaterial and made

solely for the purpose of obtaining jurisdiction or where such

a claim is wholly insubstantial and frivolous. The accuracy

of calling these dismissals jurisdictional has been questioned.

Bell v. Hood, supra;

The Fair v. Kohler Die & Specialty Co.,

228 U. S. 22, 33 S. Ct. 410, 411, 57 L. Ed. 716.

Respectfully submitted, ;

P.O. Address: 7

Suite 1203 Candler Bldg. pe se Rod

Atlanta 3, Georgia. Charles S. Reid

P.O. Address:

1431 Candler Bldg. Ly, hemor

Atlanta 3, Georgia. ‘W.D. Thompson

Attorney for the Two Above-Named

Appellants

Marshall L. Allison

Harold T. Patterson

William F. Lozier

John L. Tye

Of Counsel.

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APPENDIX “A”

DISTRICT COURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF GEORGIA

MRS. ROBERT LEE TURMAN j

CULLEN B. GOSNELL

Plaintiffs

v.

J. LON DUCKWORTH,

as Chairman of the Georgia State

Democratic Executixe Committee;

MISS GRACE CANNINGTON, CIVIL ACTION

as Secretary of the Georgia State ,

Democratic Executive Committee; Number 3013

THE STATE DEMOCRATIC

EXECUTIVE COMMITTEE OF

THE STATE OF GEORGIA,

an unincorporated association; and

BEN W. FORTSON, JR.,

as Secretary of the State of

Georgia; Defendants;

CONSOLIDATED COMPLAINT AND

AMENDMENT

TO THE HONORABLE, THE JUDGES OF THE

DISTRICT COURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF GEORGIA:

1. The plaintiff, Mrs. Robert Lee Turman, is a resident

of Fulton County, State of Georgia, and the plaintiff, Cullen

B. Gosnell, is a resident of DeKalb County, State of Georgia,

and said plaintiffs in their own behalf and on behalf of all

other persons similarly situated bring this action against

19

_. 2. This action arises under the 14th Amendment to the

Constitution of the United States, Section 1; Section 24 (14)

of the Judicial Code, USCA, Title 28, Sec. 41, subd. 14;

and Civil Rights Act, USCA, Title 8, Sec. 42, 2 FCA, Title 8,

43. Plaintiffs as citizens and registered voters of the

of Georgia are given by the Constitution of said State,

right to vote in all general elections for Governor and

other State officials, who under said Constitution are required

to be elected in a statewide election by a majority of votes

cast. The legislature of said state in 1917 set up a system

of nominations for Governor and other State officials by

party primaries, as a part of the State election system, and

required the result of such primary elections to be de-

termined by a County unit plan which deprived these plain-

tiffs of equal protection of their right to have their votes as

residents of more populous counties effective on the same

or approximate basis as residents of counties with far less

population. Plaintiffs have no adequate remedy except in

equity because damage is irreparable and not compensable

in money.

3. Each of the plaintiffs is a citizen of the United States

and of the State of Georgia and a duly registered and quali-

fied voter for the year 1946 in the county of his residence

as above set out and is entitled to vote in all elections, in-

cluding primaries, held in said State and to have his vote

counted as of equal value with that of any other voter in the

State. Plaintiffs did vote in the Democratic primary held

July 17, 1946, and both of them cast their votes in said

primary for the candidate for Governor of Georgia who

obtained the plurality of all votes cast in said primary but

did not obtain the plurality of the county unit votes, by

which the Act of 1917 requires the result of said primary

to be determined.

4. Defendant, J. Lon Duckworth, is Chairman of the

Georgia State Democratic Executive Commitee and a resi-

dent of DeKalb County, Georgia, which County is in the

Northern District of the Federal Courts of the State of

Georgia.

20

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Defendant, Miss Grace Cannington, is of

Seniacle “re uate aie dog . the Middle

- ; fe he -

District of the Federal Courts of the State of Georgia.

Defendant, The Democratic Executive Committee of the

State of Georgia, is an unincorporated association and may

be sued in its common name for the purpose of enforcing

against it a substantive right existing in plaintiffs under the

Constitution of the United States, and upon which service

may be perfected by serving J. Lon Duckworth, Chairman

of said Committee.

5. Defendant, Ben W. Fortson, Jr., is the duly appoint-

ed, qualified, and acting Secretary of the State of Georgia,

who is a citizen and resident of the County of Wilkes, and

State of Georgia; within the jurisdiction of the United States

District Court for the Southern District of Georgia, Augusta

Division; Sec. 40-503 of the Code of Georgia of 1933, pro-

vides that the Secretary of State shall “reside at the capital”

(which is Atlanta, Fulton County, Georgia), and the said

Fortson also resides at said capital, which is within the

jurisdiction of the United States District Court for the

Northern District of Georgia, Atlanta Division.

6. The Democratic primary held throughout Georgia

on July 17, 1946, was held under and pursuant to the Statute

passed by the Legislature and approved by the Governor

August 14, 1917, known as the act for Nomination by County

Units; as modified or amended by an Act of the General

Assembly of Georgia approved January 7, 1944 (Ga. Laws

1944, ex. sess. pp. 2-8), known as the Soldier’s Voting Law,

and likewise amended by an Act of the General

of Georgia approved March 20, 1943 (Ga. Laws 1943, pages

347-348) ; and as further modified by an Act of the General

Assembly of Georgia, approved February 1, 1946 (Ga. Laws

ty ), known as Act No. 632 relating to duties of

Secretary of State. Plaintiffs attach hereto as Exhibit

“A’ the pertinent portions of said Acts of the General

Assembly of Georgia and pray that the same may be consid-

ee as part of this complaint with leave of full reference

ereto.

21

which deprive plaintiffs of the full and fair value of their

votes as compared with other votes are as follows:

7. Plaintiffs that the vital provisions of said law

Georgia Code of 1933, Sertion 34-3212, codified from

Georgia Laws 1917, pp. 183-189, provides: (in part)

deus Candidates for nominations to the above named

offices 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

county is entitled in the lower House of the General As-

sembly. 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 di-

vided between the candidates 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 Capitol, within three days after the completion 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 nomi-

nees of such party for the above-named offices, respec-

tively, 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 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 following such primary, and such successful

candidates shall be considered, deemed and held as the

duly nominated candidates of such party for the offces

22

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Georgia Annotated Code, Supplement, Section 34-3215a,

taken from Georgia Laws 1943, pp. 347-348, provides:

“Immediately after the consolidation of the votes in any

such primary election a certificate, showing the names of

such candidates and the offices for which they are candi-

dates shall be filed in the office of the Secretary of State

of this State; such certificate to be signed by the chairman

and secretary of the State Committee of the political party

holding such primary. Said certificate shall show by

counties the total number of popular votes and the county

unit votes received by each candidate in any such primary

election. (Acts 1943, p. 347).”

8. The provisions of the Act of the General Assembly

of Georgia of 1917, above quoted are contrary to that clause

of the 14th Amendment of the Constitution of the United

States which reads: “..... No State shall make or enforce

any law which shall abridge the privileges or immunities of

citizens of the United States; ..... ; nor deny to any person

within its jurisdiction the equal protection of the laws.”

9. The provision quoted from the Act of 1917 is a

deliberate, express, and unreasonable discrimination in vary-

ing degrees against all voters residing in any but the smallest

counties, said discrimination as to registered voters residing

in Fulton County depreciating their votes to such an extent

that it requires 106 plus votes in Fulton County to have the

same value as one vote in Chattahoochee County. So also it

requires 71 votes in Fulton County to have the same value

as 1 vote in Quitman County. Under the provisions of the

Constitution of Georgia plaintiffs are entitled to cast their

ballots in elections held for the office of Governor, and as

they allege, to have the same counted without depreciation.

Since under the statutes as herein shown the primaries held

for nomination of candidates for Governor are made an

integral part of the election machinery of the State, said

provisions of the Constitution likewise extend to such pri-

maries; and, therefore, the provisions of the Act of 1917

herein complained of violate plaintiffs’ rights as alleged in

paragraph 8 of the petition.

23

10. The Constitution of the State of Georgia as amended

“im 1945 contains the following provisions as to the elec-

tion of Governor:

“Election for Governor. The first election for Governor,

under this Constitution, shall be held on Tuesday after

the first Monday in November of 1946, and the Governor-

elect shall be installed in office at the next session of the

General Assembly. An election shall take place quad-

rennially thereafter, on said date, until another date be

fixed by the General Assembly. Said election shall be

held at the places of holding general elections in the

several counties of this State, in the manner prescribed

for the election of members of the General Assembly,

and the electors shall be the same.”

Article V, Section I, Para. Il

“Returns of elections. The returns for every election of

Governor shall be sealed up by the managers, separately

from other returns, and directed to the President of the

Senate and Speaker of the House of Representatives, and

transmitted to the Secretary of State, who shall, without

opening said returns, cause the same to be laid before

the Senate on the day after the two houses shall have

been organized, and they shall be transmitted by the

Senate to the House of Representatives.”

Article V, Section I, Para. III

“How returns published. The members of each branch

of the General Assembly shall convene in the Represen-

tative Hall, and the President of the Senate and Speaker

of the House of Representatives shall open and publish

the returns in the presence and under the direction of

the General Assembly; and the person having the ma-

jority of the whole number of votes, shall be declared

duly elected Governor of this State; but, if no person

shall have such majority, then from the two persons

having the highest number of votes, who shall be in life,

and shall not decline an election at the time appointed

for the General Assembly to elect, the General Assembly

shall immediately, elect a Governor viva voce; and in all

cases of election of a Governor by the General Assembly,

24

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a majority of the members present shall be necessary

to a choice.

Article V, Section I, Para. IV

11. As illustrating the discrimination against the voters

of the more populous counties plaintiffs show that Fulton

County, in which one of the plaintiffs resides, did in the

Democratic primary of July 17, 1946 cast 84,550 votes;

that DeKalb County, in which another of the plaintiffs re-

sides, did in the Democratic primary of July 17, 1946 cast

26,770 votes; that Chattahoochee County, one of the counties

of said State, cast only 265 votes and that under the said

Primary Act above set forth Fulton County has only six unit

votes and Chatttahoochee County has two unit votes, thus

making the vote of one person in Chattahoochee County equal

to 106 plus votes in Fulton County and 33 plus votes in

DeKalb County. Attached hereto as Exhibit “B”, there is set

out a table showing the complete vote for Governor in said

primary of July 17, 1946.

12. Plaintiffs allege that it is the intention of defend-

ants, J. Lon Duckworth, as Chairman of State Democratic.

Executive Committee, and Miss Grace Cannington, as Sec-

retary of the State Democratic Executive Committee, to file

immediately with the Secretary of State the certificate re-

quired by the Act of the General Assembly of Georgia of:

1943, quoted above, and that the Secretary of State of Geor-

gia will receive and file said certificate, and they will do so

unless enjoined by this coutt.

13. Plaintiffs allege that if said certificate is filed with

the Secretary of the State of Georgia, he will, unless enjoined

by this court, take further steps under the established prac-

tice and the laws of Georgia towards effectuating the placing

of names of those candidates for Governor and other State

officials, as shown by said certificate as the nominees of the

Democratic party on the official ballot as the nominees of the

Democratic party for the General Election in 1946 and that

said candidates would be elected in the November General

Election without having been nominated by the votes of the

majority of the Democratic voters of the State.

25

14. Plaintiffs allege that any rule adopted by the Demo-

cratic party based upon the illegal and unconstitutional

County Unit rule, declaring the result of said primary elec-

tion, or setting up rights in any candidate having a majority

of unit votes, is itself illegal, null and void, and The Demo-

cratic Executive Committee, the Chairman and Secretary of

said Committee should be enjoined from recognizing or en-

forcing said illegal rule.

15. Plaintiffs allege that since the filing of the original

complaint (in this action) the time has expired within which

candiates may, under the laws of Georgia, qualify to be voted

on in the general election to be held on November Sth, 1946,

and therefore the only name which will be submitted to the

voters as a candidate for Governor in said election under

the law now being enforced is that of the candidate who in the

primary of July 17th, 1946 received the highest county

unit vote but who did not receive the highest popular vote,

and who being as herein alleged illegally nominated, can not

become lawfully elected. Hence, the prayers hereinafter set

out.

WHEREFORE, plaintiffs pray that this bill be allowed

to be filed and process and summons issue, and that the de-

fendants be required to answer petitioners’ complaint.

Petitioners further pray that a three-judge court be con-

vened as speedily as convenient and that said court consider

this petition and declare the county unit rule of counting

votes (as provided in the statute above referred to) in the

said late Democratic primary unconstitutional, null and void,

and issue restraining orders or injunctions directed to the

Chairman and Secretary of the State Democratic Committee,

and the State Democratic Executive Committee, the defend-

ants above named, enjoining them from complying with said

illegal rule, or any rule of the State Democratic Party based

thereon, in any way.

Petitioners further pray that The Democratic Executive

Committee of the State of Georgia, the Chairman and the

Secretary of said Democratic Executive Committee, be re-

strained and enjoined from declaring the person receiving

the highest county unit votes to be the candidate of the Party;

26

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a glory. mo heap Ae vo or from seating or recog-

any to the Party convention, to be held on

Ouse 12, 1906 teaendd by cack eotelteate or from taking

any steps whatsoever to place the name of said candidate

on the official ballot.

Petitioners further pray that the Secretary of the State

of Georgia, an above mentioned defendant, be restrained

or enjoined from taking any steps towards effectuating the

placing of the names of those candidates for Governor, or

other State officials, as shown by said certificate on the official

ballot as the nominees of the Democratic party for the Gen-

eral Election in November, 1946.

State has cheats prepared and ‘disuributed the official ballot

for the November General election, and the election is to be

held with the nname of the candidate who received the ma-

jority of county unit votes in the primary, but less than a

plurality of the entire number of votes cast throughout the

State, as the sole Democratic nominee for Governor entered

on said official ballot, that the Secretary of State be enjoined

and restrained from causing the returns of said general elec-

tion for Governor to be laid befode the Senate on the day

after the two houses of the General Assembly of Georgia

shall have been organized.

Plaintiffs pray for all such other relief as may be neces-

sary and proper to protect their rights as duly registered and

qualied votes from being unfairly discriminated against under

the said county unit law.

CHARLES S. REID,

MARSHALL L. ALLISON,

HAROLD T. PATTERSON,

P. O. Address: WILLIAM F. LOZIER,

1203-6 Candler Bldg. JOHN L. TYE,

Atlanta 3, Ga. WILLIAM D. THOMSON,

Attorneys for Plaintiffs or

omplainaints

P. O. Address:

1431 Candler Bldg.

Atlanta 3, Ga.

EXHIBIT A (Page 1)

Section 34-3212 of the Code of Georgia of 1933, codified

from Georgia laws 1917, page 183, 184, reads:

“Whenever any political party shall hold primary elec

tions for nominations of candidates for United States Senator,

Governor, Statehouse officers, Justices of the Supreme Court,

lg roel” ee Bg ps we its author-

ities shall cause all candidates for nominations for said offices

to be voted 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 nominations to the above-named

offices who receive, respectively, the highest number of popu-

lar 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 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 candidates

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

after such primary be accurately consolidated by the chair-

man 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 com-

pletition 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 conven-

tion of the party holding such primary, or the permanent

chairman thereof, or other party authority, without the neces-

sity of a formal ballot, to be the nominees 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 vonvntion, or by its authority, or the chairman or sec-

retary 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 gen-

28

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EXHIBIT A (Page 2)

eral election following such primary, and such successful

candidate 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 particlar office referred to in this section, and it shall

jot 2 after the consolidation of all of the county unit votes

throughout 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 permanent 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 von-

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

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

name of such successful candidate shall be placed upon the

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

ing 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 dec-

jlaration 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. 173, 184.)

Section 8 of an act of the General Assembly of Georgia,

approved January 7, 1944 (Ga. Laws 1944, Ex. Sess. pp.

) commonly referred to as the soldiers’ voting law reads:

“In order to allow more adequate time for the participa-

tion of members of the military in elections and party pri-

maries, the following provisions are enacted in lieu of those

now provided by law:

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

proper authorities for 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 ninety days prior to the regular election. .

All candidates for district and county offices either by them-

29

—

EXHIBIT A (Page 3)

selves or by the proper authorities of the party nominating

shall fle notice of their candidacy with the Ordinary

County at least ninety days before the regular elec-

2. ‘Whanever cay. pellical pty dail bald polmany dle

tions for nomination of candidates for office for Governor,

State House Officers, Members of Congress, United States

Senators, 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 primary, 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.”

Section 34-3215a of the Supplemented to the Annotated

Code of Georgia, codified from Ga. Laws 1943, page 347,

reads as follows:

“Immediately after the consolidation of the votes in any

such primary election a certificate, showing the names of

such candidates and the office for which they are candidates,

oe ee ae oe = Oe eee eee

State; such certificate to be signed by the chairman and

secretary of the State Committee of the political party hold-

ing such primary. Said certificate shall show by counties

the total number of popular votes and the county unit votes

received by each candidate in any such primary election.

(Acts 1943, p. 347.)”

Senate Bill 142 Act. No. 632

Approved Feb. 1, 1946.

AN ACT

To Chapter 34-14, Section 34-1401, Section 34

1402 Section 34-1403, relating to blank forms, tally

sheets and blank lists of voters, and certificates used in the

30

ELEED THROUGH= POOR COPY

EXHIBIT A (Page 4)

holding of elections in their entirety, and to repeal paragraph

7 of 40-601 of the Code of Georgia of 1933, re-

se aoe ae an

orms of returns, certificates, directions and advice to

con 7a and 7b, and ye purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY

OF GEORGIA:

Section 1

That Chapter 34-1401, 34-1402 and 34-1403 of the

Code of Georgia of 1933 prescribing certain duties upon

the Governor relating to the furnishing of certain blank forms,

tally sheets and blank lists of voters and certificates used in

the holding of election be and the same are hereby repealed

in their entirety.

Section 2

That paragraph 7 of Section 40-601 of the Code of Geor-

gia, relating to the duties of the of State as to fur-

Sishing forms of returns, certificates, ions and advice

a. Eel tendes Ce Linas oe lee edo on

for other purposes, be and the same is hereby repealed in its

entirety.

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 ie hereby enacted to as follows: “The

Secretary of State shall furnish each Ordinary of the State

the Form of official ballot, all blank forms, including tally

sheets, blank lists of voters, forms of returns, certificates and

directions to be used in all elections for United States Sen-

ate, Governor, Electors of President and Vice-President of

the United States, Representaiives to Congress, Secretary of

State, State Treasurer, Comptroller General, Attorney Gen-

31

;

EXHIBIT A (Page 5)

State Superintendent of Schools, Supreme Court of

Judges of the Superior Court, Solicitor General,

ic Service Commission, Commissioner of Labor, Mem-

of the General Assembly, and County Officers. The Sec-

certify to the respective Ordinaries the

i as such as provided in Section 34-1904 of

of Georgia and in case there are one or more per-

rting to represent the same political party or candi-

] be the duty of the Secretary of State to determine

. The Ordinaries of the respective counties shall

ired to add any other names for national and

on the official ballot except upon certificate of

of State.

the

. In any party polling less than 150,000 votes in

Georgia in the last preceding general election for President

dik

i

E

FE

a

z

:

Ha

init

7B. The Secretasy of State shall provide and keep on

hand a sufficient quantity of self sealing envelopes of uni-

form appearance and suitable size, and a sufficient tity

el sar of Gn tatets dawn toute’ tet un bo Oa te

aforesaid. He shall furnish the respective Ordinaries all of

such forms as may be necessary, and they shall furnish all

such forms as may be necessary to the Justices of the Peace

at least five days before election day, and on failure to do

Set oo cree 6 She nt cae

100.00.”

Section 4

All laws and parts of laws in conflict herewith be and

the same are hereby repealed.

FRANK C. GROSS,

President of the Senate

EXHIBIT A (Page 6)

MRS. HENRY W. NEVIN,

Secretary of the Senate

ROY V. HARRIS,

Speaker of the House of Representatives

P. T. McCUTCHEN, JR.,

Clerk of the House of Representatives.

APPROVED ELLIS ARNALL,

Governor

This lst day of February, 1946.

I, John B. Wilson, Secretary of State of the State of

Georgia, do hereby certify that the foregoing is a true and

correct copy of Act No, 632 of the 1946 General Assembly,

as the same appears on file in this office.

This 11th day of February, 1946.

JOHN B. WILSON (signed)

Secretary of State.

——

EXHIBIT B (Page 1)

CONSOLIDATED VOTE IN STATE

DEMOCRATIC PRIMARY HELD JULY 17, 1946

Popular and (unit) vote

for Governor

James V. Hoke E. D. Eugene

County Carmichael O’Kelley Rivers Talmadge

Appling. 1097 33 443 2305 (2)

Atkinson 256 39 1026 (2) 442

i re 277 41 693 1317 (2)

Baker _. 47 li 348 647 (2)

Baldwin 2790 (4) 26 579 2162

Banks 545 39 213 1280 (2)

Barrow. 1667 93 286 1803 (2)

Bartow . cai 2631 (4) 98 546 2292

Ben Hill 1268 29 256 1643 (2)

Berrien 358 20 1300 (2) 889

Bibb........... ; 12305 (6) 24: 1305 8222

Bieckley 575 8 192 1794 (2)

Brantley 125 13 714 (2) 649

Brooks 914 85 600 1440 (2)

Bryan 271 12 211 1030 (2)

Bullock 2627 87 406 3253 (4)

Burke 1229 36 99 1379 (4)

Butts. 1076 (2) 42 106 935

Calhoun 353 35 292 579 (2)

Camden 699 (2) 13 412 680

Candler 686 16 195 1163 (2)

Carroll. 3219 (4) 154 305 2626

Catoosa 1020 (2) 20 248 577

Chariton 521 (2) 28 311 47

Chatham 17679 280 238 21308 (6)

Chattahoochee 61 1 7 196 (2)

Chattooga 2334 (2) 132 538 1503

Cherokee . 1668 99 151 2666 (2)

Clarke 4521 (4) 107 811 1995

Clay... : 350 6 35 407 (2)

Clayton 1264 115 263 1717 (2)

Clinch 110 ie) 1143 (2) 437

Cobb 8274 (4) 161 348 2950

Coffee. _. 955 75 1392 2865 (4)

Colquitt 2646 87 667 3790 (4)

Columbia. . 418 12 95 683 (2)

Cook. 606 42 949 (2) 816

Coweta 2995 (4) 124 291 1304

Crawford 246 8 81 1049 (2)

Crisp 977 35 783 2475 (2)

EXHIBIT B (Page 2)

5117 (6)

1040

1284

. $8193 (6)

853

91

3925 %

1988 (2)

Popular and (Unit) Vote

for Governor

Hoke E. D.

O’Kelley Rivers Talmadge

a 1408 (2)

10 430

ill 600

599 1017

42 1360

46 98

72 549

65 139

51 418

0 347 (2)

32 123

48 412

41 802

45 169

28 123

66 143

193 1604

74 72

60 6387

2048 3239

17 58

9 150

164 929

64 181

53 962

36 243

336 413

169 338

211 439

21 67

66 456

24 62

59 423

24 355

112 197

48 187

28 180

92 435

30 48

26 140

49 237

17 90

1455 (2)

1872 (2)

1001 (2)

EXHIBIT B (Page 3)

Popular and (Unit) Vote

’ diy benny

Carmichael O’Kelley Rivers

OO —<_ <_<

514

2018 (4

1155 :

pre}

1200 as

91 (2)

8264

2193

1210 (2)

1544 (2)

1696 (2

1134 (2

1169 (2

1525 (2

967 (2

2391

954 (2

881 (2

362 (2)

1113 (2)

1079 (2)

6000

741 3}

290 (2

1825 (2)

EXHIBIT B (Page 4)

James V. Hoke E. D. Eugene

County O’Kelley Rivers Talmadge

Popular and (Unit) Vote

for Governor

Seminole... 733 5 202 967 (2)

Spalding... 4181 (4) 130 927 2409

Wenanculanins 1529 (2) 86 254 1293

| 413 22 43 690 £2

Sumpter................ 1401 80 169 1696 (4

Te ssenncevuciien 551 (2) & 51 546

Taliaferro............ 803 (2) 13 108 385

Tattnall................ 569 62 615 2550 (2)

726 38 99 1330 (2

SS 276 17 115 2775 (2

Terrell...... 846 40 88 1188 (2

ID cccveveseveow 2406 148 1113 2744 (4

se 1931 72 672 2295 (2

Toombs... 976 27 403 2365 (2)

SID, 0c co cesersev cers 128 2 386 (2) 76

SSS 270 19 215 1314 (2)

Troup....... 5091 (6) 92 540 2080

ST 7 59 370 1490 (2

TWIEGO..s.cseccccesss 616 6 152 1072 (2

TEE 648 18 116 762 (2

Upson... 2618 « 47 417 2149

Walker... 2157 (4 73 1034 1

. aaa 2123 149 503 2201 (2)

Se 3197 (4) 121 1247 2468

ETS 450 23 32 879 (2)

Washington......... 1443 48 279 2686 (4

. 889 49 530 1692 (2

Webster................ 137 12 45 594 (2

Wheeler................ 689 16 72 793 (2

a 942 & 36 474 867

Whitfield.............. 2422 (4) 93 973 2010

_ aes 347 28 816 1595 (2

. 1323 83 282 1353 2

Wilkinson............ 275 20 534 1410 (2

Worth........ 813 75 208 2208 (4

Total Popular

, RETA. 313,389 11,758 69,489 297,245

Total (Unit)

TT 146 0 22 242

No. Counties...