# Wesberry v. Sanders/Concurrence-dissent Clark

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Mr. Justice CLARK, concurring in part and dissenting in part.
Unfortunately I can join neither the opinion of the Court nor the dissent of my Brother HARLAN. It is true that the opening sentence of Art. I, § 2, of the Constitution provides that Representatives are to be chosen 'by the People of the several States * * *.' However, in my view, Brother HARLAN has clearly demonstrated that both the historical background and language preclude a finding that Art. I, § 2, lays down the ipse dixit 'one person, one vote' in congressional elections.
On the other hand, I agree with the majority that congressional districting is subject to judicial scrutiny. This Court has so held ever since Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795 (1932), which is buttressed by two companion cases, Koenig v. Flynn, 285 U.S. 375, 52 S.Ct. 403, 76 L.Ed. 805 (1932), and Carro l v. Becker, 285 U.S. 380, 52 S.Ct. 402, 76 L.Ed. 807 (1932). A majority of the Court in Colegrove v. Green felt, upon the authority of Smiley, that the complaint presented a justiciable controversy not reserved exclusively to Congress. Colegrove v. Green, 328 U.S. 549, 564, and 568, n. 3, 66 S.Ct. 1198, 1208, 1209, 90 L.Ed. 1432 (1946). Again in Baker v. Carr, 369 U.S. 186, 232, 82 S.Ct. 691, 718, 7 L.Ed.2d 663 (1962), the opinion of the Court recognized that Smiley 'settled the issue in favor of justiciability of questions of congressional redistricting.' I therefore cannot agree with Brother HARLAN that the supervisory power granted to Congress under Art. I, § 4, is the exclusive remedy.
I would examine the Georgia congressional districts against the requirements of the Equal Protection Clause of the Fourteenth Amendment. As my Brother BLACK said in his dissent in Colegrove v. Green, supra, the 'equal protection clause of the Fourteenth Amendment forbids * * * discrimination. It does not permit the states to pick out certain qualified citizens or groups of citizens and deny them the right to vote at all. * * * No one would deny that the equal protection clause would also prohibit a law that would expressly give certain citizens a half-vote and others a full vote. * * * Such discriminatory legislation seems to me exactly the kind that the equal protection clause was intended to prohibit.' 328 U.S. at 569, 66 S.Ct. at 1210, 90 L.Ed. 1432.
The trial court, however, did not pass upon the merits of the case, although it does appear that it did make a finding that the Fifth District of Georgia was 'grossly out of balance' with other congressional districts of the State. Instead of proceeding on the merits, the court dismissed the case for lack of equity. I believe that the court erred in so doing. In my view we should therefore vacate this judgment and remand the case for a hearing on the merits. At that hearing the court should apply the standards laid down in Baker v. Carr, supra.
I would enter an additional caveat. The General Assembly of the Georgia Legislature has been recently reapportioned as a result of the order of the three-judge District Court in Toombs v. Fortson, 205 F.Supp. 248 (1962). In addition, the Assembly has created a Joint Congressional Redistricting Study Committee which has been working on the problem of congressional redistricting for several months. The General Assembly is currently in session. If on remand the trial court is of the opinion that there is likelihood of the General Assembly's, reapportioning the State in an appropriate manner, I believe that coercive relief should be deferred until after the General Assembly has had such an opportunity.
Mr. Justice HARLAN, dissenting.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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