Under Georgia's 1962 Senatorial Reapportionment Act the State is
divided into senatorial districts that are conceded to be
substantially equal in population. Except for the seven most
populous counties, from one to eight counties comprise a district
and the voters therein, on a district-wide basis, elect the senator
for that district. The seven most populous counties are divided
into from two to seven districts each, and the voters in each such
county, instead of electing only one senator from the district in
which they reside, elect, on a county-wide basis, that number of
senators that the county has districts. Appellees, registered
voters in multidistrict counties of Georgia, brought this action in
the Federal District Court against the Secretary of State and local
election officials, seeking a decree that the county-wide voting
requirement in the seven multi-district counties violates the Equal
Protection Clause of the Fourteenth Amendment. A three-judge
District Court granted appellees' motion for summary judgment,
holding that the difference between electing senators in districts
comprising a county or group of counties and in the multi-district
counties constitutes invidious discrimination.
Held: equal protection does not necessarily require
formation of all single-member districts in a State's legislative
apportionment scheme.
Reynolds v. Sims, 377 U.
S. 533, followed. Pp.
379 U. S.
436-439.
228 F.
Supp. 259 reversed.
Page 379 U. S. 434
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Georgia's 1962 Senatorial Reapportionment Act [
Footnote 1] apportions the 54 seats of the
Georgia Senate among the State's
Page 379 U. S. 435
159 counties. The 54 senatorial districts created by the Act are
drawn, so far as possible, along existing county lines.
Thirty-three of the senatorial districts are made up of from one to
eight counties each, [
Footnote
2] and voters in these districts elect their senators by a
district-wide vote. The remaining 21 senatorial districts are
allotted in groups of from two to seven among the seven most
populous counties, but voters in these districts do not elect a
senator by a district-wide vote; instead, they join with the voters
of the other districts of the county in electing all the county's
senators by a county-wide vote.
The appellees, registered voters of Georgia, brought this action
in the District Court for the Northern District of Georgia against
the Secretary of State of Georgia and local election officials
seeking a decree that the requirement of county-wide voting in the
seven multi-district counties violates the Equal Protection Clause
of the Fourteenth Amendment. A three-judge court granted appellees'
motion for summary judgment, stating that
"The statute causes a clear difference in the treatment accorded
voters in each of the two classes of senatorial districts. It is
the same law applied differently to different
Page 379 U. S. 436
persons. The voters select their own senator in one class of
districts. In the other, they do not. They must join with others in
selecting a group of senators, and their own choice of a senator
may be nullified by what voters in other districts of the group
desire. This difference is a discrimination as between voters in
the two classes. . . . The statute here is nothing more than a
classification of voters in senatorial districts on the basis of
homesite, to the end that some are allowed to select their
representatives while others are not. It is an invidious
discrimination tested by any standard."
228 F.
Supp. 259, 263. We noted probable jurisdiction, 379 U.S. 810.
We reverse.
Only last Term, in our opinion in
Reynolds v. Sims,
377 U. S. 533,
decided after the decision below, we rejected the notion that equal
protection necessarily requires the formation of single-member
districts. In discussing the impact on bicameralism of the equal
protection standards, we said, "One body could be composed of
single-member districts, while the other could have
at least
some multimember districts." 377 U.S. at
377 U.S. 577. (Emphasis supplied.)
Again, in holding that a State might legitimately desire to
maintain the integrity of various political subdivisions, such as
counties, we said:
"Single-member districts may be the rule in one State, while
another State might desire to achieve some flexibility by creating
multimember or floterial districts.
Whatever the means of
accomplishment, the overriding objective must be substantial
equality of population among the various districts, so that the
vote of any citizen is approximately equal in weight to that of any
other citizen in the State."
377 U.S. at
377 U.S.
579. (Emphasis supplied.)
It is not contended that there is not "substantial equality of
population" among the 54 senatorial districts. The equal protection
argument is focused solely upon the question whether county-wide
voting in the seven multi-district
Page 379 U. S. 437
counties results in denying the residents therein a vote
"approximately equal in weight to that of" voters resident in the
single-member constituencies. Contrary to the District Court, we
cannot say that it does. There is clearly no mathematical
disparity. Fulton County, the State's largest constituency, has a
population nearly seven times larger than that of a single-district
constituency, and, for that reason, elects seven senators. Every
Fulton County voter, therefore, may vote for seven senators to
represent his interests in the legislature. But the appellees
assert that this scheme is defective because county-wide voting in
multi-district counties could, as a matter of mathematics, result
in the nullification of the unanimous choice of the voters of a
district, thereby thrusting upon them a senator for whom no one in
the district had voted. But this is only a highly hypothetical
assertion [
Footnote 3] that, in
any event, ignores the practical realities
Page 379 U. S. 438
of representation in a multi-member constituency. It is not
accurate to treat a senator from a multi-district county as the
representative of only that district within the county wherein he
resides. The statute uses districts in multi-district counties
merely as the basis of residence for candidates, not for voting or
representation. Each district's senator must be a resident of that
district, but, since has tenure depends upon the county-wide
electorate, he must be vigilant to serve the interests of all the
people in the county, and not merely those of people in his home
district; thus, in fact, he is the county's, and not merely the
district's, senator. If the weight of the vote of any voter in a
Fulton County district, when he votes for seven senators to
represent him in the Georgia Senate, is not the exact equivalent of
that of a resident of a single-member constituency, we cannot say
that his vote is not "approximately equal in weight to that of any
other citizen in the State."
In reversing the District Court, we should emphasize that the
equal protection claim below was based upon an alleged infirmity
that attaches to the statute on its face. Agreeing with appellees'
contention that the multi-member constituency feature of the
Georgia scheme was
per se bad, the District Court entered
the decree on summary judgment. We treat the question as presented
in that
Page 379 U. S. 439
context, and our opinion is not to be understood to say that, in
all instances or under all circumstances, such a system as Georgia
has will comport with the dictates of the Equal Protection Clause.
It might well be that, designedly or otherwise, a multi-member
constituency apportionment scheme, under the circumstances of a
particular case, would operate to minimize or cancel out the voting
strength of racial or political elements of the voting population.
When this is demonstrated, it will be time enough to consider
whether the system still passes constitutional muster. This
question, however, is not presented by the record before us. It is
true that appellees asserted in one short paragraph of their brief
in this Court that the county-wide election method was resorted to
by Georgia in order to minimize the strength of racial and
political minorities in the populous urban counties. But appellees
never seriously pressed this point below, and offered no proof to
support it, the District Court did not consider or rule on its
merits, and, in oral argument here, counsel for appellees stressed
that they do not rely on this argument. The record thus does not
contain any substantiation of the bald assertion in appellees'
brief. Since, under these circumstances, this issue has
"not been formulated to bring it into focus, and the evidence
has not been offered or appraised to decide it, our holding has no
bearing on that wholly separate question."
Wright v. Rockefeller, 376 U. S.
52,
376 U. S.
58.
Reversed.
[
Footnote 1]
Ga.Laws, Sept.-Oct. 1962, Extra. Sess., pp. 7-31; Ga.Code Ann. §
47-102 (Cum.Supp.1963). Section 9, the provision in question here,
provides in pertinent part that:
"Each Senator must be a resident of his own Senatorial District
and shall be elected by the voters of his own District,
except
that the Senators from those Senatorial Districts consisting of
less than one county shall be elected by all the voters of the
county in which such Senatorial District is located."
(Emphasis supplied.) Shortly after the enactment of this
statute, and prior to the election of senators under it in the 1962
general elections, an action was brought in a state court that
challenged the validity of the above provision under the Georgia
Constitution. The state court held that the exception in the 1962
statute was unconstitutional as a matter of state law under the
then-existing Georgia Constitution.
Finch v. Gray, No. A
96441 (Fulton County Super.Ct., Oct. 30, 1962). The court entered a
permanent injunction requiring that elections in Fulton and DeKalb
Counties be held on a district-wide basis only. Appeal was taken
from this decision, but was withdrawn. In its opinion, the Georgia
Court noted that the Georgia Legislature had authorized the
submission of a constitutional amendment to the people ratifying
the 1962 reapportionment statute with its multi-district voting
exception and all elections held under that statute. (The amendment
was ratified.
See Ga.Const. Art. III, § II, part. I;
Ga.Code Ann. § 2-1401 (Cum.Supp.1963).) The court stated concerning
the proposed amendment:
"It is to be observed that, by Paragraph (b) of said proposed
Amendment to the Constitution, the General Assembly submitted to
the people the question whether they would ratify the
Reapportionment Act and elections thereunder. This proposed
Amendment, of course, is prospective, and will become a part of the
Constitution only if ratified by the voters in the coming general
election."
"The effect of ratification by the people of the Reapportionment
Act containing the unconstitutional exception aforesaid is not now
before the Court for determination.
See, however, on this
subject:
Walker v. Wilcox Co., 95 Apps. 185;
Hammond
v. Clark, 136 Ga. 313;
Bailey v. Housing Authority of City
of Bainbridge, 214 Ga. 790;
Grayson-Robinson Stores, Inc.
v. Oneida, Ltd., 209 Ga. 613; 9 Mercer L.Rev. 194, 195; 11
Am.Juris., page 832, section 151. The importance here of the
aforesaid proposed constitutional Amendment is simply for the light
it sheds upon the intention of the General Assembly in enacting the
Reapportionment statute."
The question of Georgia law raised by the decisions cited by the
court as to whether a statute declared unconstitutional under
Georgia law may be revived by a subsequent constitutional amendment
was not raised below and has not been urged here. Of course, this
question of Georgia law is not for us; our decision concerns only
the federal constitutional question presented and argued.
[
Footnote 2]
These 33 senatorial districts embrace 152 of the State's 159
counties. Of the 33 districts, only two consist of single counties;
the remaining 31 districts are comprised of from two to eight
counties each.
[
Footnote 3]
Appellees take as their example Senatorial District 34, in which
there are 82,195 of Fulton County's total of 556,326 voters. They
say, as a matter of mathematics, that even if every voter in
District 34 voted for the same candidate from that district, less
than 18% of the voters in the other six districts within the county
(
i.e., approximately 85,000 of the remaining 474,131
voters in the county) could outvote the unanimous choice of
District 34 voters. First of all, there is no demonstration that
this is likely in light of the political composition of District 34
vis-a-vis that of the rest of the county. (In fact, the
1962 elections in both Fulton and DeKalb Counties -- wherein all
appellees reside -- were conducted on a district-wide basis, rather
than a county-wide basis.
See note 1 supra.) But apart from this, appellees'
mathematics and misleading, for not only will the 18%, or 85,000,
of the remaining Fulton County voters vote for a senatorial
candidate resident in District 34, but also the remaining 389,131
voters will presumably participate in his election. Assuming these
additional voters split their votes almost evenly between two
candidates running from District 34 -- the most "favorable"
assumption for appellees in that it will produce the smallest
possible percentage of voters who can outvote the unanimous choice
of the voters in District 34 -- there will be approximately 280,000
votes against the choice of the voters in the 34th District, or
about 59% of the remaining out-of-district vote. This is a far cry
from the 18% figure calculated by appellees. And, even if, on some
odd chance, only 85,000 voters outside of District 34 participate
in the selection of a senator from that district, and all vote
against the unanimous choice of District 34 voters, the 18% figure
is still misleading. For, in this eventuality, the relevant voting
constituency consists of something under 170,000 voters, and close
to 100% -- not 18% -- of the out-of-district vote has to be cast
against the choice of the in-district vote in order to outvote the
latter. Our decision should not be read, however, as resting upon
the misleading aspects of appellees' calculations.
MR. JUSTICE HARLAN, concurring.
Under the compulsion of last Term's reapportionment decisions, I
join the opinion and judgment of the Court, but with one
reservation. There is language in today's opinion, unnecessary to
the Court's resolution of this case, that might be taken to mean
that the constitutionality of
Page 379 U. S. 440
state legislative apportionments must, in the last analysis,
always be judged in terms of simple arithmetic.
As this Court embarks on the difficult business of putting flesh
on the bones of
Reynolds v. Sims, 377 U.
S. 533, and its companion decisions of last June, I
desire expressly to reserve for a case which squarely presents the
issue, the question of whether the principles announced in those
decisions require such a sterile approach to the concept of equal
protection in the political field.
MR. JUSTICE DOUGLAS, dissenting.
Georgia -- whose political hierarchy was long constructed on the
county unit
* basis -- has
made an important change. The Georgia Constitution was amended to
read:
"The Senate shall consist of 54 members. The General Assembly
shall have authority to create, rearrange and change
senatorial
districts and to provide
for the election of Senators from
each senatorial district, or from several districts embraced
within one county, in such manner as the General Assembly may deem
advisable."
(Italics added.) Art. III, § II, part. I.
The "senatorial district" is thus made the unit in the election
of senators. But the Senatorial Reapportionment Act provides in
relevant part:
"Each Senator must be a resident of his own senatorial district
and shall be elected by the voters of his own district, except that
the Senators from those senatorial districts consisting of less
than one county shall be elected by all the voters of the county in
which such senatorial district is located."
Thus "senatorial districts" are put into two classifications:
first, those comprising one or more counties; second,
Page 379 U. S. 441
those consisting of less than one county. The "equal protection"
problem under the Fourteenth Amendment arises by reason of the fact
that all electors of the districts in the first group choose their
own senators, while the electors of the districts in the second
group must share the choice of their senators with all the other
electors in their county. I agree with the District Court:
". . . voters in some senatorial districts cannot be treated
differently from voters in other senatorial districts. The statute
here is nothing more than a classification of voters in senatorial
districts on the basis of homesite, to the end that some are
allowed to select their representatives, while others are not."
228 F.
Supp. 259, 263.
There are seven senatorial districts within Fulton County:
District 34 containing 82,195 voters.
District 35 containing 82,888 voters.
District 36 containing 79,023 voters.
District 37 containing 78,540 voters.
District 38 containing 78,953 voters.
District 39 containing 79,713 voters.
District 40 containing 74,834 voters.
There are three senatorial districts in De Kalb County:
District 41 containing 75,117 voters.
District 42 containing 95,032 voters.
District 43 containing 86,633 voters.
As appellees point out, even if a candidate for one of those
districts obtained all of the votes in that district, he could
still be defeated by the foreign vote, while he would, of course,
be elected if he were running in a district in the first group. I
have no idea how this weighted voting might produce prejudice
race-wise, religion-wise, politics-wise. But to allow some
candidates to be chosen by the electors in their districts and
others to be defeated by the voters of foreign districts is, in my
view, an "invidious
Page 379 U. S. 442
discrimination" -- the test of unequal protection under the
Fourteenth Amendment.
Baker v. Carr, 369 U.
S. 186,
369 U.S.
244. I had assumed we had settled this question in
Gray
v. Sanders, 372 U. S. 368,
372 U. S. 379,
where we said:
"Once the geographical unit for which a representative is to be
chosen is designated, all who participate in the election are to
have an equal vote -- whatever their race, whatever their sex,
whatever their occupation, whatever their income, and wherever
their home may be in that geographical unit. This is required by
the Equal Protection Clause of the Fourteenth Amendment."
*
South v. Peters, 339 U. S. 276.