Gray v. Sanders/Dissent Harlan

by John Marshall Harlan II

Mr. Justice HARLAN, dissenting.

When Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, was argued at the last Term we were assured that if this Court would only remove the roadblocks of Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, and its predecessors to judicial review in 'electoral' cases, this Court in all likelihood would never have to get deeper into such matters. State legislatures, it was predicted, would be prodded into taking satisfactory action by the mere prospect of legal proceedings.

These predictions have not proved true. As of November 1, 1962, the apportionment of seats in at least 30 state legislatures had been challenged in state and federal courts, ^[1] and, besides this one, 10 electoral cases of one kind or another are already on this Court's docket. ^[2] The present case is the first of these to reach plenary consideration.

Preliminarily, it is symptomatic of the swift pace of current constitutional adjudication that the majority opinion should have failed to mention any of the four occasions on which Georgia's County Unit System has previously been unsuccessfully challenged in this Court. Cook v. Fortson, decided with Turman v. Duckworth, 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed. 596 (1946); South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834 (1950); Cox v. Peters, 342 U.S. 936, 72 S.Ct. 559, 96 L.Ed. 697 (1952); and Hartsfield v. Sloan, 357 U.S. 916, 78 S.Ct. 1363, 2 L.Ed.2d 1363 (1958).

It is true that none of these cases reached the stage of full plenary consideration but, in light of the judicial history recounted by Mr. Justice Frankfurter in his dissenting opinion in Baker v. Carr, supra, 82 S.Ct. at 266, 278, 82 S.Ct. at 737, 743 et seq., only the guileless could fail to recognize that the prevailing view then was that the validity of this County Unit System was not open to serious constitutional doubt. ^[3] This estimate of the earlier situation is highlighted by the dissenting opinion of Justices BLACK and DOUGLAS in South v. Peters, supra, 339 U.S. at 277, 70 S.Ct. at 642, in which they unsuccessfully espoused the very views which now become the law. Presumably my two Brothers also reflected these same views in noting their dissents in the Cox and Hartsfield cases. See also Cook v. Fortson, etc., supra, in which Mr. Justice BLACK also noted his dissent.

But even if the Court's present silence about these cases can be deemed justified on the premise that their summary disposition can be satisfactorily accounted for on grounds not involving the merits, I consider today's decision not supportable.

In the context of a nominating primary respecting candidates for statewide office, the Court construes the Equal Protection Clause of the Fourteenth Amendment as requiring that each person's vote be given equal weight. The majority says: 'The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing-one person, one vote.' Ante, p. 381. The Court then strikes down Georgia's County Unit System as such, a holding which the District Court declined to make. 203 F.Supp., at 170.

The Court's holding surely flies in the face of history. For, as impressively shown by the opinion of Frankfurter, J., in Baker v. Carr, 369 U.S., at 301-324, 82 S.Ct., at 755-767, 'one person, one vote' has never been the universally accepted political philosophy in England, the American Colonies, or in the United States. The significance of this historical fact seems indeed to be recognized by the Court, for it implies that its newfound formula might not obtain in a case involving the apportionment of seats in the 'State Legislature or for the Federal House of Representatives.' Ante, p. 376.

But, independently of other reasons that will be discussed in a moment, any such distinction finds persuasive refutation in the Federal Electoral College whereby the President of the United States is chosen on principles wholly opposed to those now held constitutionally required in the electoral process for statewide office. One need not close his eyes to the circumstance that the Electoral College was born in compromise, nor take sides in the various attempts that have been made to change the system, ^[4] in order to agree with the court below that it 'could hardly be said that such a system used in a state among its counties, assuming rationality and absence of arbitrariness in end result, could be termed invidious.' 203 F.Supp., at 169.

Indeed this Court itself some 15 years ago rejected, in a comparable situation, the notion of political equality now pronounced. In MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, challenge was made to an Illinois law requiring that nominating petitions of a new political party be signed by at least 25,000 voters, including a minimum of 200 voters from each of at least 50 of the 102 counties in the State. The claim was that the '200 requirement' made it possible for 'the voters of the less populous counties * * * to block the nomination of candidates whose support is confined to geographically limited areas.' Id., at 283, 69 S.Ct. at 2. In disallowing this claim, the Court said (id., at 283 284, 69 S.Ct. at 2):

'To assume that political power is a function exclusively of numbers is to disregard the practicalities of government. Thus, the Constitution protects the interests of the smaller against the greater by giving in the Senate entirely unequal representation to populations. It would be strange indeed, and doctrinaire, for this Court, applying such broad constitutional concepts as due process and equal protection of the laws, to deny a State the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former. The Constitution-a practical instrument of government-makes no such demands on the States.'

Certainly no support for this equal protection doctrine can be drawn from the Fifteenth, Seventeenth, or Nineteenth Amendment. The Fifteenth Amendment simply assures that the right to vote shall not be impaired 'on account of race, color, or previous condition of servitude.' The Seventeenth Amendment provides that Senators shall be 'elected by the people,' with no indication that all people must be accorded a vote of equal weight. The Nineteenth Amendment merely gives the vote to women. And it is hard to take seriously the argument that 'dilution' of a vote in consequence of a legislatively sanctioned electoral system can, without more, be analogized to an impairment of the political franchise by ballot box stuffing or other criminal activity, e.g., United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355; United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341, or to the disenfranchisement of qualified voters on purely racial grounds, Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110.

A violation of the Equal Protection Clause thus cannot be found in the mere circumstance that the Georgia County Unit System results in disproportionate vote weighting. It 'is important for this court to avoid extracting from the very general language of the 14th Amendment a system of delusive exactness * * *.' Louisville & Nashville R. Co. v. Barber Asphalt Co., 197 U.S. 430, 434, 25 S.Ct. 466, 467, 49 L.Ed. 819 (Holmes, J.). What then remains of the equal protection claim in this case?

At the core of Georgia's diffusion of voting strength which favors the small as against the large counties is the urban-rural problem, so familiar in the American political scene. In my dissent in Baker v. Carr, 369 U.S., at 336, 82 S.Ct., at 774, I expressed the view that a State might rationally conclude that its general welfare was best served by apportioning more seats in the legislature to agricultural communities than to urban centers, lest the legitimate interests of the former be submerged in the stronger electoral voice of the latter. In my opinion, recognition of the same factor cannot be deemed irrational in the present situation even though all of the considerations supporting its use in a legislative apportionment case are not present here.

Given the undeniably powerful influence of a state governor on law and policy making, ^[5] I do not see how it can be deemed irrational for a State to conclude that a candidate for such office should not be one whose choice lies with the numerically superior electoral strength of urban voters. By like token, I cannot consider it irrational for Georgia to apply its County Unit System to the selection of candidates for other statewide offices ^[6] in order to assure against a predominantly 'city point of view' in the administration of the State's affairs.

On the existing record, this leaves the question of 'irrationality' in this case to be judged on the basis of pure arithmetic. The Court by its 'one person, one vote' theory in effect avoids facing up to that problem, but the District Court did face it, holding that the disparities in voting strength between the largest county (Fulton) and the four smallest counties (Webster, Glascock, Quitman, and Echols), running respectively 8 to 1, 10 to 1, 11 to 1, and 14 to 1 in favor of the latter, ^[7] were invidiously discriminatory. But it did not tell us why. I do not understand how, on the basis of these mere numbers, unilluminated as they are by any of the complex and subtle political factors involved, a court of law can say, except by judicial fiat, that these disparities are in themselves constitutionally invidious.

The disproportions in the Georgia County Unit System are indeed not greatly out of line with those existing under the Electoral College count for the Presidency. The disparity in population per Electoral College vote between New York (the largest State in the 1960 census) and Alaska (the smallest) was about 5 to 1. ^[8] There are only 15 Georgia counties, out of a total of 159, which have a greater disparity per unit vote, and of these 15 counties 4 have disparity of less than 6 to 1. It is thus apparent that a slight modification of the Georgia plan could bring it within the tolerance permitted in the federal scheme.

It was of course imponderables like these that lay at the root of the Court's steadfast pre-Baker v. Carr refusal 'to enter (the) political thicket.' Colegrove v. Green, supra, 328 U.S. at 556, 66 S.Ct. at 1201. Having turned its back on this wise chapter in its history, the Court, in my view, can no longer escape the necessity of coming to grips with the thorny problems it so studiously strove to avoid in Baker v. Carr (see concurring opinion of STEWART, J., 369 U.S., at 265, 82 S.Ct., at 736, and dissenting opinion of HARLAN, J., id., at 339, 82 S.Ct. at 775) and in two subsequent cases, Scholle v. Hare, 369 U.S. 429, 430, 82 S.Ct. 910, 8 L.Ed.2d 1 (concurring opinion of CLARK, J., and STEWART, J.), 430-435, 82 S.Ct. 910-913 (dissenting opinion of HARLAN, J.); W.M.C.A., Inc., v. Simon, 370 U.S. 190, 191-194, 82 S.Ct. 1234, 1235-1236, 8 L.Ed.2d 430 (dissenting opinion of HARLAN, J.). To regard this case as being outside the general stream of electoral cases because only two other States, Maryland and Mississippi, have county unit systems, is to hide one's head in the sand.

What then should be the test of 'rationality' in this judicially unfamiliar field? My Brother CLARK has perhaps given us a clue in the legislative inactivity-absence of any other remedy crazy quilt approach contained in his concurring opinion in Baker v. Carr, supra, at 369 U.S. 253-262, 82 S.Ct. 729-734. But I think a formulation of the basic ground rules in this untrod area of judicial competence should await a fully developed record. This case is here at an interlocutory stage. The temporary injunction before us issued upon a record consisting only of the pleading, answers to interrogatories, affidavits, statistical material, and what the lower court described as a 'liberal use of our right to take judicial notice of matters of common knowledge and public concern.' 203 F.Supp., at 160, n. 1. No full-dress exploration of any of the many intricate questions involved in establishing criteria for judging 'rationality' took place, the opinion and decree below issued the day following the hearing, and the District Court observed that, while its standards of equal protection (which this Court now puts aside) 'may appear doctrinaire to some extent,' it was constrained to act as it did because of the then (but no longer existing) ^[9] urgency of the situation. 203 F.Supp., at 170.

Surely, if the Court's 'one person, one vote' ideology is constitutionally untenable, as I think it clearly is, the basic ground rules implementing Baker v. Carr should await the trial of this or some other case in which we have before us a fully developed record. Only then can we know what we are doing. Cf. White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696. A matter which so profoundly touches the barriers between federal judicial and state legislative authority demands nothing less.

I would vacate the judgment of the District Court and remand the case for trial.

Notes

1  Advisory Commission on Intergovernmental Relations, Report on Apportionment of State Legislatures, December 1962, p. A-21. I have been informed by the Administrative Office of the United States Courts that, by December 31, 1962, over 25 suits had been filed in the federal courts alone.

2  No. 460, WMCA, Inc., v. Simon; No. 507, Wesberry v. Sanders; No. 508, Reynolds v. Sims; No. 517, Beadle v. Scholle; No. 540, Vann v. Frink; No. 554, Maryland Comm. for Fair Representation v. Tawes; No. 610, McConnell v. Frink; No. 688, Price v. Moss; No. 689, Oklahoma Farm Bureau v. Moss; No. 797, Davis v. Mann.

3  Although the Solicitor General, as amicus, suggests that the Court's action in South v. Peters rested simply on a refusal to exercise federal equity power, it should be noted that the first case cited in the Court's per curiam affirmance is MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3. See infra, p. 385.

4  See Wechsler, Presidential Elections and the Constitution: A Comment on Proposed Amendment, 35 A.B.A.J. 181 (1949).

5  The Georgia Constitution vests in the Governor the State's 'executive power,' and authorizes him to recommend legislation, make reports to and call extraordinary sessions of the State General Assembly, issue writs of election to fill vacancies in the General Assembly, veto or approve bills and resolutions, and require reports from the various departments of the State. Ga.Const. of 1945, Art. V, §§ 2-3001 to 2-3017. Also, by statute, payments cannot be made from the state treasury without a warrant issued by the Governor, Ga.Code Ann., § 40-204, and in the event of a public emergency the Governor is authorized to promulgate and enforce such rules and regulations as are necessary to prevent, control, or quell violence, threatened or actual, Ga.Code Ann., § 40-213.

6  Those involved in this case, besides Governor, are United States Senator, Lieutenant Governor, Secretary of State, Justice of the Supreme Court, Judge of the Court of Appeals, Attorney General, Comptroller General, Commissioner of Labor, and Treasurer. The Governor has a general power to fill vacancies in such offices, unless otherwise provided by law. Ga.Const. of 1945, Art. V, § 1, par. 13, § 2-3013.

7 Population Ratio to

perFulton

County Population Unit Vote Unit Vote County

Fulton... 556,326. 40. 13,908

DeKalb... 256,782. 20. 12,839

Chatham.. 188,299. 16. 11,760

Muscogee. 158,623. 14. 11,330

Webster.... 3,247. 2. 1,623 8 to 1

Glascock... 2,672. 2. 1,336 10 to 1

Quitman.... 2,432. 2. 1,216 11 to 1

Echols..... 1,876. 2. 938 14 to 1

8  Statistical Abstract of the United States 10,366 (1962).

9  Following the District Court's injunction, a statewide direct primary was held.