# Fortson v. Morris/Dissent Douglas

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* Opinion of the Court
* Dissenting Opinions Douglas Fortas
United States Supreme Court
385 U.S. 231
Fortson v. Morris
Argued: Dec. 5, 1966. --- Decided: Dec 12, 1966
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE, Mr. Justice BRENNAN, and Mr. Justice FORTAS, concur, dissenting.
This is an appeal from a decision of a three-judge district court declaring unconstitutional and enjoining the enforcement of Article V, Section I, Paragraph IV, of the Georgia Constitution which authorizes the election of the Governor of Georgia by the General Assembly when no candidate has received a majority of the total votes cast in the general election.
We are told that in the November 8, 1966, general election for Governor, there were 955,770 votes cast as follows:
Howard H. Callaway------------- 449,894 votes or 47.07%
Lester G. Maddox--------------- 448,044 votes or 46.88%
Ellis G. Arnall---------------- 57,832 votes or 6.05%
The Georgia Election Code provides that '(n)o candidate shall be nominated for public office in any primary or elected to public office in any election unless such candidate shall have received a majority of the votes cast to fill such nomination or public office.' Ga.Code Ann. § 34-1514 (Supp.1965). That law goes on to provide that where no candidate 'receives a majority of the votes cast, a runoff primary or election shall be held, between the two candidates receiving the highest number of votes,' and the candidate who receives 'a majority of the votes cast in such runoff' shall be declared the winner. The Attorney General of Georgia rendered an opinion on October 21, 1966, that the provisions of § 34-1514 were in conflict with the provisions of the Georgia Constitution and that the latter controlled in the event no candidate for Governor received a majority in the general election.
This action for a declaratory judgment was brought by citizens of Georgia residing in counties throughout the State who voted in the November 8, 1966, general election for Governor. They ask for the benefit of a runoff election between the two candidates who received the highest number of votes as provided in § 34-1514 or a special election pursuant to the Georgia Election Code. The District Court held the provision of the Georgia Constitution which placed the election of the Governor in the General Assembly unconstitutional and void. 262 F.Supp. 93. It issued a stay for a period of 10 days so as to enable the appellant to seek an additional stay here and retained jurisdiction for such other and further proceedings as might be deemed applicable and just. The case is here by appeal which we noted, and we expedited the hearing because of the urgency of the issue presented. 385 U.S. 955, 87 S.Ct. 387.
The Court misstates the question we must decide. It is not whether Georgia may select a Governor through a legislative election. It is whether the legislature may make the final choice when the election has been entrusted to the people and no candidate has received a majority of the votes. In other words, the legislative choice is only a part of the popular election machinery. The 1824 amendment to the 1798 Constitution of Georgia, which gave the legislature power to elect a governor, treated that stage as only one of two in the general election. The first stage, then as now, was an election open to 'the persons qualified to vote for members of the general assembly'. Ga.Const. 1798, Art. II, § 2, as amended, 1824.
It is said that the general election is over and that a new, and different, alternative procedure is now about to be used. But that is belied by the realities. The primary election selected the party candidates, the choices of the two parties are still in balance, and the legislative choice is restricted to those two candidates. The election, commencing with the primary, will indeed not be finally completed until the winner has taken the oath of office. Up to then the vacancy which occasioned the election has not been filled.
Our starting point is what we said in Gray v. Sanders, 372 U.S. 368, 379-380, 83 S.Ct. 801, 808:
'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. The concept of 'we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications.'
It is argued with earnestness that if the electoral college can be used to select a President, a legislature can be used to select a governor. It is said that there is no more a violation of the 'one person, one vote' principle in the one than in the other. But the Twelfth Amendment creates the exception in case of a President. There is no like exception in the choice of a governor.
'The only weighting of votes sanctioned by the Constitution concerns matters of representation, such as the allocation of Senators irrespective of population and the use of the electoral college in the choice of a President. * * * But once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded. * * *
'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.' Gray v. Sanders, supra, at 380-381, 83 S.Ct., at 808.
If the legislature is used to determine the outcome of a general election, the votes cast in that election would be weighted, contrary to the principle of 'one person, one vote.' All the vices we found inherent in the county unit system in Gray v. Sanders are inherent when the choice is left to the legislature. A legislator when voting for governor has only a single vote. Even if he followed the majority vote of his constituency, he would necessarily disregard the votes of those who voted for the other candidate, whether their votes almost carried the day or were way in the minority. He would not be under a mandate to follow the majority or plurality votes in his constituency, but might cast his single vote on the side of the minority in his district. Even if he voted for the candidate receiving a plurality of votes cast in his district and even if each Senator and Representative followed the same course, a candidate who received a minority of the popular vote might receive a clear majority of the votes cast in the legislature. As stated by the District Court:
'The Georgia election system in the constitutional provision now under consideration permits unequal treatment of the voters within the class of voters selected, and it thus cannot stand. Many arguments may be made, but we need go no further than to point out, as stated, that the candidate receiving the lesser number of votes may be elected by the General Assembly. This would give greater weight to the votes of those citizens who voted for this candidate and necessarily dilute the votes of those citizens who cast their ballots for the candidate receiving the greater number of votes. The will of the greater number may be ignored.' 262 F.Supp., at 95.
I have said enough to indicate why the substitution of the Georgia Legislature for a runoff vote is an unconstitutional weighting of votes, having all the vices of the county unit system that we invalidated in Gray v. Sanders.
What is approved today can, moreover, be the instrument to perpetuate a 'one party' system in like derogation of the principle of 'one person, one vote.' The pledge that every Democratic member of the Georgia Legislature took provides in part: 'I further pledge myself to support at the General Election of November 8, 1966, all candidates nominated by the Democratic Party of the State of Georgia.' That election has not been completed. We are, as I have said, in the second stage of it. The Democrats control 183 seats in a 205-member House and 46 seats in a 54-member Senate. We would be less than naive to believe that the momentum of that oath has now been dissipated and that the predominantly Democratic legislature has now become neutral.
The fact that this constitutional provision allowing the legislature to choose the Governor was adopted by the people of Georgia is 'without federal constitutional significance, if the scheme adopted fails to satisfy the basic requirements of the Equal Protection Clause, as delineated in our opinion in Reynolds v. Sims (84 S.Ct. 1362, 12 L.Ed.2d 506).' See Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 737, 84 S.Ct. 1459, 12 L.Ed.2d 632. We dealt there with an apportionment plan that had been adopted by a popular referendum. We repeat what we said: 'A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be.' Id., 736-737, 84 S.Ct. 1474.
I would affirm the judgment of the three-judge court and remand the cause for the fashioning of an appropriate decree for a runoff election in which the people's choice will be determined.

## Notes

* ↑ The Georgia Constitution, Art. V, § I, IV, provides:
* ↑ Ga.Code Ann. § 34-1515 (Supp.1965) provides:
* ↑ Georgia's state auditor is chosen by the legislature. Ga.Code Ann. § 40-1801.
* ↑ Originally Georgia left the selection of Governor to the legislature, the House selecting three candidates and the Senate choosing one of the three by majority vote Ga.Const.1789, Art. II, § 2.
* ↑ 'We think the analogies to the electoral college, to districting and redistricting, and to other phases of the problems of representation in state or federal legislatures or conventions are inapposite. The inclusion of the electoral college in the Constitution, as the result of specific historical concerns, validated the collegiate principle despite its inherent numerical inequality, but implied nothing about the use of an analogous system by a State in a statewide election. No such specific accommodation of the latter was ever undertaken, and therefore no validation of its numerical inequality ensued.' Gray v. Sanders, 372 U.S. 368, 378, 83 S.Ct. 801, 807.
* ↑ In Gray v. Sanders, supra, in speaking of this same vice in the county unit system we said:
* ↑ This figure does not take into account a runoff election held on November 22, 1966, to fill a House seat.
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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