Fortson v. Morris/Dissent Fortas

by Abe Fortas

United States Supreme Court

385 U.S. 231

Fortson  v.  Morris

 Argued: Dec. 5, 1966. --- Decided: Dec 12, 1966

Mr. Justice FORTAS, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.

I join the opinion of my Brother DOUGLAS, but I add the following:

The specific question before us is the validity of the Georgia constitutional provision which, after vesting in the people 'full and complete power to elect a Governor,' ^[1] provides that if no candidate receives a majority, the legislature shall select the winner from the two candidates receiving the highest popular vote. The legislature may select the candidate who received fewer popular votes than his rival. In my opinion, this scheme is forbidden by the Equal Protection Clause of the Fourteenth Amendment as construed by this Court.

1. Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801 (1963), related to Georgia primary elections to nominate candidates for statewide office, including Governor. It held that where the vote cast by each citizen does not have full and equal effect as a result of operation of the county unit system, the Equal Protection Clause is violated. If the Constitution of Georgia incorporated the county unit system as part of the mechanics for election of Governor, I assume there would be no doubt that Gray v. Sanders would invalidate the provision. Unless the Court is overruling Gray v. Sanders, it presumably would not validate a Georgia constitutional provision which said that if a majority of the votes are not cast for one candidate, they will be recomputed on a county unit basis which is not proportionate to the voting population, and the result of that recomputation would determine the winner. It is no less a denial of equal protection of the laws for the result of an election to be determined, not by the voters, but by the legislature on a basis which is not related to the votes cast. No less than the county unit system, this means that the vote cast by a citizen is subject to nullification by the legislature. The integrity of the vote is undermined and destroyed by any scheme which can result in the selection of a person as Governor who receives the lesser number of popular votes. If the voting right is to mean anything, it certainly must be protected against the possibility that victory will go to the loser.

2. It distorts reality to say, as the majority here do, that this election is to be scrubbed and ignored, and to proceed as if we were dealing with a situation in which Georgia's Constitution merely provided for the selection of Governor by the legislature. That is not the case. If it were the intent of the Constitution to scrub the popular election and to cause selection by the legislature as an independent process, the legislature would not be bound to select from the two who received at the polls the highest number of votes. The legislature would be given free choice. As my Brother DOUGLAS' opinion shows, the Constitution attempts something quite different. It purports to give the legislature power to complete the process begun at the polls-to cast aside the vote of the electorate and award the office to the winner or the loser of the popular election, as it may see fit. The analogy to Gray v. Sanders is clear. This is just as if, for example, the voters expressed their preferences at the polls, and then the winner was selected not on the basis of receiving most votes, but on the basis of selection by officials of the counties concerned. ^[2]

3. The Georgia Legislature is concededly malapportioned, and is under a federal court order to reapportion itself. Toombs v. Fortson, 384 U.S. 210, 86 S.Ct. 1464, 16 L.Ed.2d 482 (1966), affirming 241 F.Supp. 65 (D.C.N.D.Ga.1965). See also Fortson v. Toombs, 379 U.S. 621, 85 S.Ct. 598, 13 L.Ed.2d 527 (1965). A majority of the legislators in Georgia's legislature may represent a minority of the voters. But the Court today concludes that despite the fact that it has branded the legislature as apportioned in violation of the Constitution of the United States, it may nevertheless select the Governor. The Court states as its reason for disregarding this that 'In Toombs v. Fortson * * * we held that with certain exceptions, not here material, the Georgia Assembly could continue to function until May 1, 1968.' This is indeed a weak reed for so monumental a conclusion. The use of a malapportioned legislature to select a Governor is to perpetuate the electoral vices which this Court decreed that the Equal Protection Clause of the Fourteenth Amendment forbade a State to incorporate in its election procedures. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362 (1964); Gray v. Sanders, supra. We have declined to deprive a malapportioned legislature of its de facto status as a legislature. But not until today has this Court allowed a malapportioned legislature to be the device for doing indirectly what a State may not do directly. If this Court had foreseen that events would place the Georgia Legislature in a position to override the vote of a plurality of the voters and to select as Governor of the State the loser at the polls, I expect that it would have included this power as one of the 'exceptions,' forbidden to this legislature which, this Court has held, functions only by judicial sufferance despite its constitutional infirmity. To a reader of Gray v. Sanders, Fortson v. Toombs, and Toombs v. Fortson, it must seem inconceivable that the Court would permit this malapportioned legislature to select Georgia's Governor in these circumstances. Indeed, the irony of the matter is that a three-judge federal court held that the Georgia Legislature was so malapportioned that it could not properly submit to the voters a new Constitution, adopted by both houses of the Georgia Legislature, which would have abolished the provisions for legislative selection of a Governor and have substituted a runoff or special election. See Fortson v. Toombs, supra. On appeal, this Court, per curiam, declined to rule that the District Court's decree was unlawful, but because it was represented that the decree might be moot, the Court remanded for reconsideration in light of the circumstances which allegedly made the decree no longer pertinent. Fortson, supra. But now the Court holds that this same unreformed legislature is not so malapportioned that it cannot itself select the Governor by its direct action! I confess total inability to understand how the two rulings can be reconciled.

4. In denying the applicability of Gray v. Sanders, the Court says that it was 'only a voting case' and that it has nothing to do with a State's decision that the voters will be ousted from their functions, the votes cast by them nullified, and the legislature authorized to select the candidate that most of the electorate repudiated. I respectfully submit that this, too, is 'a voting case.' It is no less a voting case because it deals with a state mechanism for total disregard of the principle of one man, one vote. It is no less a voting case because it deals with the election of the Governor rather than his nomination as in Gray v. Sanders. I should assume-diffidently in view of today's startling result-that this Court would not rule that the Federal Constitution would tolerate a state constitutional provision that would enable the Governor to appoint the legislature-or to appoint any legislators for election districts if no candidate received a majority of the votes-or two-thirds-or three-fourths. But there is no difference in principle between this and the result sanctioned today. If a State can validly provide that the result at the polls can be disregarded and the outcome removed from democratic processes where no candidate for Governor receives a majority, there is no reason why the same rule cannot be applied to legislators. Moreover, the Court today announces in an offhand manner, as a side effect of today's decision, without adequate argument or consideration, that a State may today, as some States did long ago, provide that its Governor shall be selected by its legislature in total disregard of the voters. I do not believe that the issue is so easy. Much water has gone under the bridge since the late 1700's and the early 1800's. Our understanding and conception of the rights guaranteed to the people by the 'stately admonitions' ^[3] of the Fourteenth Amendment have deepened, and have resulted in a series of decisions, ^[4] enriching the quality of our democracy, which certainly do not codify State's rights, governmental theories or conceptions of human liberties as they existed in 1824, the date when Georgia adopted its present system of choosing a Governor. I have no doubt, for example, that in the early days of the Nation many of the state legislatures were malapportioned. See Reynolds v. Sims, supra, 377 U.S., at 573, n. 53, and 602-607 (dissent), 84 S.Ct., at 1387, and 1402-1405. But this did not enshrine that condition forever beyond the reach of constitutional prohibition. Certainly, the antiquity of the practice did not cause this Court to refrain from invalidating malapportionment under the Equal Protection Clause. As Mr. Justice Holmes said long ago,

'(W)hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.' State of Missouri v. Holland, 252 U.S. 416, 433, 40 S.Ct. 382, 383, 64 L.Ed. 641 (1920). ^[5]

5. I do not believe that this Court is the sole custodian of the Constitution, or of the democratic liberties of the people. The power and the responsibility rests also with the States, the people, and with lower courts, including the courageous District Court that in the present case insisted upon following this Court's decision in Gray v. Sanders. But if the people of Georgia-or Maine or California or New York, for that matter-should adopt a constitutional amendment to provide for election of their Governor by the legislature-or for selection of the upper house of their legislature by their Governor, for example-I do not believe that the constitutionality of these measures could be cavalierly assumed. Perhaps this Court's voting rights cases could not so easily be nullified. Their meaning and thrust are perhaps deeper than the mechanics of the tally. They are, one may hope, not merely much ado about form. They represent, one has been led to believe, an acknowledgment that the republican form of government guaranteed by the Constitution, read in light of the General Welfare Clause, the guaranties of equal protection of the laws and the privileges and immunities of citizens of the United States, requires something more than an adherence to form. This Court's apportionment and voting rights decisions soundly reflect a deepening conception, in keeping with the development of our social, ethical, and religious understanding, of the meaning of our great constitutional guaranties. As such, they have reinvigorated our national political life at its roots so that it may continue its growth to realization of the full statute of our constitutional ideal. Today's decision is a startling reversal; a belittling, I say with all respect, of our Constitution's dynamic provisions with respect to the basic instrument of democracy-the vote.

6. The Court brushes off Gray v. Sanders by saying that it has to do only with the 'equal right' of all voters 'to vote and have their votes counted without impairment or dilution.' That is so. But that is precisely the issue in the present case. We have not heretofore been so beguiled by changes in the scenery that we have lost sight of principle. See Terry v. Adams, 345 U.S. 461 esp. 465, n. 1, 73 S.Ct. 809, 811, 97 L.Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 661, 64 S.Ct. 757, 763, 88 L.Ed. 987 (1944). See also Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 534 (1964). Here, too, we are dealing at least with the 'impairment' of the vote-indeed, with the obliteration of its effect. It is not merely the casting of the vote or its mechanical counting that is protected by the Constitution. It is the function-the office-the effect given to the vote, that is protected.

A vote is not an object of art. It is the sacred and most important instrument of democracy and of freedom. In simple terms, the vote is meaningless-it no longer serves the purpose of the democratic society-unless it, taken in the aggregate with the votes of other citizens, results in effecting the will of those citizens provided that they are more numerous than those of differing views. That is the meaning and effect of the great constitutional decisions of this Court.

In short, we must be vigilant to see that our Constitution protects not just the right to cast a vote, but the right to have a vote fully serve its purpose. If the vote cast by all of those who favor a particular candidate exceeds the number cast in favor of a rival, the result is constitutionally protected § a matter of equal protection of the laws from nullification except by the voters themselves. The candidate receiving more votes than any other must receive the office unless he is disqualified on some constitutionally permissible basis or unless, in a runoff or some other type of election, the people properly and regularly, by their votes, decide differently. 'The right to vote is too important in our free society to be stripped of judicial protection' ^[6] by any other interpretation of our Constitution.

In essence, Gray v. Sanders held that the Equal Protection Clause is violated when persons are elected to statewide office on a basis other than their receiving more votes than their rivals. In my opinion, this principle is exactly applicable here.

It is with the greatest regret that I conclude that today's decision reflects a retreat from constitutional principles so soundly and so proudly developed to apply the Constitution's magnificent admonitions to the deepening moral and human principles of our time. I would affirm the District Court.

Notes

1. Thompson v. Talmadge, 201 Ga. 867, 880, 41 S.E.2d 883, 895 (1947). Thompson invalidated selection of a Governor by the legislature when the candidate who received a majority of the votes cast died before taking office.
2. This would resemble the presidential electoral college system. Gray v. Sanders expressly states that while this system is beyond judicial reach because it is specifically incorporated in the Federal Constitution, it does not indicate the constitutionality of analogous state schemes. 372 U.S., at 378, 83 S.Ct. 801. See also Reynolds v. Sims, 377 U.S. 533, 572-577, 84 S.Ct. 1362 (1964).
3. Learned Hand, Spirit of Liberty 163 (1960).
4. See, e.g., Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Gray v. Sanders, supra; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966).
5. Only last Term, the Court held in Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079 (1966), that the right to vote in state elections cannot be burdened or conditioned by a poll tax. We observed:
6. Wesberry v. Sanders, supra, at 7.