South v Peters Motion to Advance and Expediate Hearing and Disposition

    IN THE

(Urntri nf tf|? £>tatra
October Term, A. D. 1949

No___________

BENARD SOUTH and HAROLD C. FLEMING
Plaintiffs-A ppellants,

JAMES PETERS as Chairman o f the GEORGIA STATE 
DEMOCRATIC EXECUTIVE COMMITTEE: MRS. IRIS 
BLITCH, as Acting Secretary o f the GEORGIA STATE 
DEMOCRATIC E X E C U T I V E  COMMITTEE: THE 
GEORGIA STATE DEMOCRATIC EXECUTIVE COM­
MITTEE: THE GEORGIA STATE DEMOCRATIC 
PARTY: and BEN W. FORTSON, JR., Secretary o f State 
o f Georgia. ££S

Defendants-A ppellumks.

Appeal From the District Court of the United States 
For The Northern District of Georgia 

Atlanta Division.

APPELLANTS’ MOTION TO ADVANCE AND  
EXPEDITE THE HEARING AND DISPOSITION 

OF THIS CAUSE, 
and

BRIEF IN SUPPORT THEREOF

HAMILTON DOUGLAS, JR., 
Rhodes Haverty Building,
Atlanta, Georgia
MORRIS B. ABRAM,
Connally Building,
Atlanta, Georgia
Attorneys for Plaintiffs-Appellants



NOTICE AND PROOF OF SERVICE

Please take notice that on 21st day o f March, 1950, or as 
soon thereafter as the convenience o f the Court will permit, 
we shall present to the United States Supreme Court in 
Washington, D. C., in the above-entitled cause, a Motion to 
Advance and Expedite the Cause and a Brief in Support 
Thereof, a copy o f which is served upon you herewith. At 
which time you may appear or be represented by counsel if 
you so see fit.

Hamilton Douglas, Jr.
Morris B. A bram

Attorneys for Plaintiff-Appellants

Received true and exact copies o f the Motion to Advance 
and Expedite the Cause and a Brief in Support Thereof

and o f this Notice and Proof o f Service this_______ day of
March, 1950.

Eugene Cook B. D. Murphy
Attorney-General, State of 
Georgia

Atlanta, Georgia

C. Baxter Jones M. F. Goldstein
Macon, Georgia Atlanta, Georgia

M. H. Blackshear, Jr . 
Asst. Attorney-General, 
State of Georgia

i



AFFIDAVIT OF SERVICE

....................................................................... . being duly sworn,
deposes and says that he is one of the Attorneys for Appel­
lants in the above entitled cause, that he gave notice of the 
Motion to Advance and Expedite the Cause by sending on 
March 18, 1950, a telegraphic notice of said Motion to 
each attorney o f record and by depositing on March 18, 
1950, in a United States Mail Box in the City o f Atlanta a 
copy o f said Motion addressed to each o f the attorneys of 
record.

Subscribed and sworn to before me by......... ........................

__________ ________________, who is to me personally known,

this......................day of March, 1950.

Notary Public



IN THE

£>uprpmp (Court of tfyr llnttpb £>tatpa
October Term, A. D. 1949

No.

BENARD SOUTH and HAROLD C. FLEMING
Plaintiffs-A ppellants,

JAMES PETERS as Chairman of the GEORGIA STATE 
DEMOCRATIC EXECUTIVE COMMITTEE: MRS. IRIS 
BLITCH, as Acting Secretary o f the GEORGIA STATE 
DEMOCRATIC E X E C U T I V E  COMMITTEE: THE 
GEORGIA STATE DEMOCRATIC EXECUTIVE COM­
MITTEE: THE GEORGIA STATE DEMOCRATIC 
PARTY: and BEN W. FORTSON, JR., Secretary o f State 
o f Georgia.

Appeal From the District Court of the United States 
For The Northern District of Georgia 

Atlanta Division.

APPELLANTS’ MOTION TO ADVANCE AND  
EXPEDITE THE HEARING AND DISPOSITION 

OF THIS CAUSE.



2

BASIS OF MOTION

This motion is made in accordance with Rule 20, para­
graph 3, o f the Rules o f this Court.

PURPOSE OF THIS MOTION

On June 28th, 1950, near the date when this Court 
customarily adjourns for the Summer recess, the Democratic 
Party o f Georgia is planning to hold a primary for statewide 
offices. Candidates successful in that primary will, if the 
unvarying practice o f more than 75 years holds true, serve 
as Governor o f the State, United States Senator from the 
State, and in many other offices including the highest judi­
cial posts.

The primary will be conducted by the County Unit System 
o f consolidating votes. This means that after the ballots of 
all voters are cast and counted, the results o f the primary 
election will be determined by the defendants giving effect 
to the law under constitutional attack. (Georgia nominations 
by County Units Act o f August 14,1917, Georgia Laws 1917, 
pp. 183-189.) Under this law the defendants will determine 
the outcome o f the primary by diluting the votes which 
plaintiffs intend to cast. By this arbitrary method the 
defendants will count the votes in Chattahoochee County, 
Georgia, as being worth perhaps 122 times as much as the 
votes o f plaintiffs. In 45 Counties o f Georgia voters will 
be accorded twenty or more times the voting influence of 
plaintiffs. On a state average, voters outside Fulton County 
will be given 11.5 times more franchise than the plaintiffs.

No basis in experience, practicality or necessity supports 
the gross discrimination against plaintiffs which is vividly 
portrayed in the dissenting opinion below: “ The vote o f a 
citizen living on one side o f Moreland Avenue in Atlanta,



3

DeKalb County, equals five o f his neighbors directly across 
the street in Atlanta, Fulton County.”

The system discriminates to a less degree against the 
voters o f every single county in the state save those who 
live in the smallest county of all.

This discrimination complained o f is not in reference to 
representation, but in the fact that having been permitted to 
vote for an officer on the same basis as all other citizens, 
and after the votes are counted, the defendants will deliber­
ately and arbitrarily discount the value o f plaintiffs’ votes. 
Citizens o f no other State in the Union are victimized by a 
County Unit System. This case presents a matter sui generis, 
generis.

TIMING OF THE SUIT

The bill below was for a declaration and injunction 
declaring the discrimination against plaintiffs to be uncon­
stitutional and preventing the defendants from employing 
the County Unit System in consolidating returns, determin­
ing victorious candidates, and in certifying them as such. 
No injunction was sought against holding a primary election 
nor attempting to overturn the results o f one already held.

The bill was filed January 25th, 1950, at the first indi­
cations that a primary would be called, but actually six 
weeks before the call. (Under Georgia law no primary need 
actually have been held.) When the bill was filed, statute 
required that if a primary were held it must occur on 
September 13th, 1950. But after the filing o f this suit, the 
Administration recommended and the Legislature enacted a 
revision o f the law permitting the Party Executive Committee 
to choose an earlier date. That Committee met on March 
11, 1950, and pushed the primary forward almost three 
months, so it will now be held on June 28th, 1950.



4

Unless the Court grants a motion to advance, these 
plaintiffs cannot possibly have a final adjudication o f their 
constitutional rights to have their votes properly valued in 
the pending primary. A prior attempt to void the county 
unit law was dismissed by this Court on account o f mootness 
( Turman v. Duckworth, 329 U. S. 675). Plaintiffs are 
pursuing now the course recommended in the District Court 
decision in the Turman case in the sense that they brought 
their bill before the primary. Indeed, they have not awaited 
the call o f the primary as specifically recommended in the 
Turman vs. Duckworth, 68 F. Supp. 744, 747, but ran the 
risk o f prematurity by instituting suit even before the 
primary was called.

As primaries have always been held in Georgia in the 
summer or fall, it is improbable that any relief against the 
deprivation o f plaintiffs’ rights can ever be afforded in this 
Court without an advancement o f the case.

To be effective, relief in this case will be needed before 
June 28th, 1950 (unless the defendant Committee again 
advances the primary date). But no relief is required 
until the actual day o f the primary election. For the only 
relief sought is to prevent the consolidation o f votes and 
the declaration and certification o f the results o f the election 
on the county unit basis.

THIS MOTION

This motion is for such order o f this Court as will 
advance and expedite the hearing and decision o f this cause 
in light o f the emergency which the case presents. Specifi­
cally appellants move:

(1 ) That this case be docketed in order that it may have 
a hearing at the present term of this Court.



5

(2 ) That the time permitted by the Rules o f this Court 
for accomplishing the following steps be constricted 
so as to afford a decision from this Court which 
can be known and enforced before the Democratic 
Primary in Georgia scheduled to be held June 28th, 
1950:

(a ) The time permitted under paragraph 3 o f Rule 
12 for filing o f a statement in opposition to 
appellants’ Statement o f Jurisdiction.

(b ) Time permitted by paragraph 3 o f Rule 7 for 
filing o f a brief in opposition to any motion to 
dismiss the appeal.

(c ) Time permitted under paragraph 1, Rule 27, 
for filing appellants’ brief.

(d ) Time permitted under paragraph 4 o f Rule 27 
for filing appellees’ brief.

(3 ) That the case here pending should be advanced for 
argument ahead o f the order in which it might 
normally be assigned for hearing and decision in 
this Court.

(4 ) That the printing o f the Record in this case be expe­
dited to prepare it for an advanced hearing, or in 
lieu thereof that the appeal be heard on the type­
written record certified to this Court by the Clerk 
o f the District Court.

CONSTITUTIONAL QUESTIONS PRESENTED

This case presents to the Court three constitutional ques­
tions:

(1 ) Whether, considering the provisions o f the “ Equal 
Protection Clause”  o f the 14th Amendment, it is 
allowable for a State arbitrarily to dilute the ballots



6

o f fully qualified voters so that some persons voting 
for the same candidates as plaintiffs are accorded 
122 times the voting power o f the plaintiffs, and all 
other voters, on a statewide average, are accorded 
11.5 times the voting influence o f plaintiffs in elect­
ing that candidate. Whether this discrimination is 
justified by an historic antagonism against urban 
centers and a fear o f Negro, progressive and labor 
votes in those centers; and whether geography o f 
residence is a permissible basis for dilution o f one’s 
ballot.

(2 ) Whether the abridgment o f a voter’s right to choose 
a United States Senator by gross dilution o f his 
ballot is a violation o f a Privilege and Immunity 
o f a Citizen o f the United States within the meaning 
o f the 14th Amendment.

(3 ) Whether the choice by County Units o f a United 
States Senator in the Georgia Democratic Primary 
is a violation o f the 17th Amendment to the Con- 
sitution o f the United States, guaranteeing to plain­
tiffs the right to choose Senators by a vote o f the 
people.

COURSE OF PROCEEDINGS BELOW

The complaint seeking injunctive and declaratory relief 
was filed on January 25, 1950. The case was originally 
assigned for hearing on February 17th, 1950, before a 
three-judge court. The hearing was postponed at the request 
o f Counsel for the Appellees and the trial was held on 
February 24, 1950. At the conclusion o f the hearing, 
Counsel for plaintiffs submitted a brief. Counsel for defend­
ants requested two weeks for filing their brief. The Court 
allowed but one week. On March 15th, the decision o f the 
Court was announced. The majority denied all relief sought,



7

but one judge, dissenting, held that plaintiffs were entitled 
to injunctive and declaratory relief on all the constitutional 
grounds urged. Two days after the entry o f the final order 
in this cause, plaintiffs filed their appeal.

WHEREFORE, appellants pray that this their motion to 
advance be inquired into by the Court and the relief herein 
specifically sought be granted.

Respectfully submitted,

Hamilton Douglas, Jr.
Morris B. A bram

Attorneys for Plaintiffs-Appellants



8

BRIEF IN SUPPORT OF THE MOTION TO ADVANCE  

INTRODUCTION

The nature o f the case and the questions presented are 
set out in the motion herein. A fuller presentation o f the 
same is to be found in plaintiffs’ Statement o f Jurisdiction.

ARGUMENT

I.
What this Case is Not

This is not a Colegrove v. Green (328 U. S. 549) situa­
tion. There is no necessity for this Court to remap the State 
politically; no question of interference with Congress’ power 
to control the manner o f holding elections; no claim of 
wrong against a state as a polity; no remedy sought against 
unequal representation o f a county in the legislature. Plain­
tiffs in this case complain that they are not being allowed an 
equal vote with every other voter who is to be governed by 
the successful candidate. In the Colegrove case, each voter 
had an equal voice in determining the candidate who was 
to represent him.

This is not a case like MacDougall v. Green (335 U. S. 
281). The relief sought here will not interrupt a pending 
election so as to invalidate absentee and soldier vote ballots. 
The injunction prayed would in no way interfere with any 
stage o f the voting and in fact would become operative only 
at the stage where the defendants proceeded to dilute the 
effectiveness o f the whole ballots which the plaintiffs are per­
mitted to cast and which are required by law to be counted. 
Relief sought would disfranchise none but would enfranchise 
all equally.

Furthermore, the degree o f discrimination in the Mac­
Dougall case (which is thought to be o f some decisiveness 
in the holding) does not remotely approach the situation



9

against'which these plaintiffs seek relief. On the facts o f 
the MacDougall case, this Court held: . . the State is en­
titled to deem this power not disproportionate.”  (Emphasis 
supplied.) As related to Cook County, the facts in the 
MacDougall case showed that 61%  o f the political initiative 
could come from the subdivision with 52%  o f the popula­
tion. But these plaintiffs show this Court that (NOT AS A 
MATTER OF POLITICAL INITIATIVE) but in the actual 
choice o f state officers in the only effective election, they are 
practically disfranchised as compared to citizens in other 
counties.

There may be some reasonable basis for the requirement 
in the MacDougall case that political initiative spring from 
a source wide enough to prevent the splintering o f the elec­
torate. But the County Unit System does not purport to 
deal with that problem. The raison d’etre o f the County Unit 
System is the same as its effect: To discriminate against 
plaintiffs and other urban voters.

In the dissenting opinion filed below in this case, Judge 
Andrews notes another difference with the MacDougall case: 
“ . . . proportionately no more city folks vote [in Georgia 
Democratic primaries] than do country people. This dis­
poses o f the notion, tacitly approved in MacDougall v. Green, 
that difficulty in getting to the polls should be recognized 
here as a makeweight in justifying a rank discrimination 
based on place o f residence.”

This is not like Turman v. Duckworth (329 U. S. 625). 
This case is not now moot. The primary is scheduled for 
June 28, 1950. Nor does the pending case ask the Court to 
upset an election already held.

Plaintiffs are not attaacking the right o f Georgia to 
establish the qualifications requisite for electors within the 
State. Plaintiffs are, however, insisting that once Georgia



10

has established the criteria for qualifications o f an elector, 
all who qualify must be treated equally. Plaintiffs are not 
attacking the Presidential Electoral College, nor the equal 
vote in the United States Senate. The Federal Government 
is in no way enjoined or commanded by the 14th Amend­
ment. Plaintiffs are not attempting to use judicial power to 
correct malproportions in legislative representation. This 
Court is not being asked to juggle boundary lines and accom­
modate and adjust them to the influx o f the new born and 
the efflux o f the dead and the emigrant. Plaintiffs are merely 
asserting that one vote is not 122 votes and are requesting 
the Court to judicially declare that fact and grant injunctive 
relief upon it.

n.
What this Case is

There is but one County Unit System in the United 
States. The Tennessee Legislature attempted to foist the 
system on that state but the attempt was struck down by the 
Supreme Court o f Tennessee in a unanimous decision apply­
ing some o f the Constitutional principles urged here. (See 
Gates v. Long, 172 Tenn. 471, 113 SW (2 ) 388.) The 
Georgia County Unit System is purely and simply a delib­
erate method for disfranchising certain classes o f citizens 
whose influence is thought to be pernicious.

The degree o f discrimination is unparalleled and is indi­
cated by some o f the ratios already presented. Under the 
holding o f the majority o f the Court below the ratio of 
discrimination would be permissible state practice no matter 
how far it might be carried. Yet, can a Court of Equity 
which is zealous o f the right o f the franchise and the equality 
of its protection permit the virtual cancelling out o f the 
ballot by indirection?



11

in.
Judge Andrews who dissented below thoroughly weighed 

the balance o f convenience which historically has determined 
the issuance o f equitable relief. His conclusion was that the 
injunction would be practical, effective and easy o f enforce­
ment. He well summarized the consequences o f the issuance 
o f the decree:

“ I am unable to find any unpalatable practical con­
sequences to the granting o f an injunction in this case. 
There will be no necessity for this Court to supervise 
any election, an eventually upon which GILES v. HAR­
RIS turned. The gross discrimination wrought by the 
offending statute occurs after the votes have been cast 
and counted by a method employed by the State Demo­
cratic Executive Committee and its chairman and secre­
tary. The effective application o f the discrimination to 
the plaintiffs occurs when the nominees are placed on 
the general election ballot by the Secretary o f State. 
All o f these instruments o f discrimination are defend­
ants here and an injunction forbidding their actions 
under the offending statute will effectively end the 
discrimination. The relief granted in RICE v. EL­
MORE, supra, required o f the Court vastly greater 
supervision o f the electoral process than is asked or 
required in this case.

“ Granting o f injunctive relief will not bring about 
any o f the practical consequences feared by the Court 
in COLEGROVE v. GREEN, supra. No disruption of 
a pending election will ensue. The only change which 
will be effected is the method o f consolidating the vote 
at the top level o f the Georgia Democratic Party. The 
votes will be cast and counted in precinct, ward and 
county without change or interruption. The Georgia 
General Assembly need take no action to provide an



12

alternative method o f determining nominees, for under 
Georgia law the responsibility will revert to the party. 
Defendants in argument and brief have relied heavily 
upon two other suits which involved attacks upon the 
Georgia County Unit System, TURMAN v. DUCK­
WORTH, 68 F. Supp. 744, and COOK v. FORTSON, 
68 F. Supp. 624, both decided in 1946 by this Court. 
The Supreme Court o f the United States dismissed 
appeals on the grounds o f mootness, citing UNITED 
STATES v. ANCHOR COAL COMPANY, 279 U. S. 
812. TURMAN v. DUCKWORTH, 329 U. S. 675.

“ These cases have no application to the case at bar. 
The District Court in each case based its decision on 
COLEGROVE v. GREEN, supra. As discussed above, 
that case is authority only for the discretionary power 
o f equity to deny relief under the circumstances o f that 
case. In the earlier county unit cases, the plaintiffs 
sought to overturn a completed primary election after 
they had participated in the primary without objection, 
on the grounds that candidates for whom they had 
voted received a plurality o f votes cast in their respec­
tive contest but were not declared nominees o f the 
party. The candidates themselves did not complain and 
one o f them even went so far as to intervent to ask that 
the suit be dismissed.

“ The consequences o f injunctive relief in those two 
cases presented practical problems in the exercise of 
the Court’s discretionary powers not perceivable in the 
instant case, and view in this light the District Court 
decisions in them are not precedent for deniel o f relief 
here.”



13

IV.
Other Relief

There is no practical hope that the vicious discrimination 
against appellants can ever be remedied otherwise than 
through the intervention o f this Court. The Georgia Legis­
lature is composed so as to reflect precisely the discrimina­
tion o f the county unit system.

This vast disproportion o f legislative power in rural 
counties (for which plaintiffs seek no relief) insures that 
the County Unit System will endure. Indeed, the last Gen­
eral Assembly by the required 2 /3  vote proposed, and there 
is being submitted to the people in the General Election of 
November, 1950, a constitutional amendment to extend the 
County Unit System into future General Elections.

As legislative relief is hopeless, so is constitutional relief 
through amendment. All constitutional initiative lies with 
the legislature— with 1 /3  o f either house able to stifle any 
proposal.

So even if the people strongly will the end of the County 
Unit System, they are powerless to accomplish it.

V.
Implications of the County Unit System

Since Smith v. Allwright, 321 U. S. 629, many Southern 
legislatures have been groping for a means o f keeping the 
Negro disfranchised. These attempts have been recorded in 
a steady stream o f decisions. In Alabama the Boswell 
Amendment was the method o f attempted circumvention. 
The effort was ill-fated. Davis v. Schnell, 81 F. Supp. 872. 
South Carolina made two tries. Both failed. Elmore v. Rice, 
72 F. Supp. 516, aff. 165 Fed. (2 ) 387, cert. den. 338 U. S. 
875; Brown v. Baskin, 78 F. Supp. 933.

Georgia had hopes. These were dashed in Chapman v.



14

King, 62 F. Supp. 639, aff. 154 F. (2 ) 460. But Georgia 
still has in the County Unit System a most effective and, so 
far, the most constitutionally promising method o f Negro 
disfranchisement. It was argued below, and indeed the fact 
is judicially known and cannot be disputed, that in Georgia 
the Negro in the small rural county is, through intimidation, 
threats, economic reprisal and occasional lynchings, pre­
vented from voting in any numbers. (In Wrightsville, John­
son County, Georgia, four hundred Negroes were registered 
to vote in a local primary in 1948. The night before the 
primary a Ku Klux Klan parade was held and a cross burned 
on the Court House lawn. Not one Negro voted the following 
day.) In the cities the Negroes do vote. But these votes, like 
white city votes, are sterilized by the County Unit System. 
The County Unit System thus “ heavily disfranchises the 
Negro population. Almost half o f Georgia’s Negroes live 
in the most populous counties. Here the Negro vote has 
been large. But the County Unit System cancels the Negro 
vote in these counties— the only counties where the Negroes 
have been able to vote in important numbers. In small 
counties, where any single vote is at a premium, Negroes 
generally have been denied the franchise.”  New South pub­
lished by the Southern Regional Council, Atlanta, Ga., Vol. 
4, Nos. 5&6, 1949.

The same point was referred to in the hearing below by 
expert witness, Doctor Linwood Holland, Associate Professor 
o f Political Science o f Emory University, Atlanta, Ga., and 
author o f The Direct Primary in Georgia, published by the 
University o f Illinois Press:

“ . . . your Negro vote is predominately in your 
urban areas, it means he would be prevented.”

If the Georgia County Unit System is permissible state 
practice, it will come to replace the white primary as the



15

instrument o f Negro disfranchisement throughout those areas 
o f the South which are still determined to find a means of 
preventing the black man from voting.

The Chattanooga (Tenn.) Times lead editorial o f March 
16, 1950, in commenting on the decision below in this 
case, summed up these implications o f the County Unit 
System:

“ But the U. S. Supreme Court is likely to consider it 
from another viewpoint. The county unit system of 
Georgia is the last loophole remaining whereby the U. S. 
Supreme Court decision that there must be no dis­
crimination because o f race in Southern primaries is 
defeated.

“ In the Georgia rural counties, Negroes theoretically 
have the right to vote, but they are intimidated and in 
many cases they dare not exercise their right.

“ The danger is that if  this loophole remains, the 
same technique may be copied in other states to invali­
date the U. S. Supreme Court decision. . . .

“ At any rate, a U. S. Supreme Court ruling on the 
county unit system is o f importance to the whole South, 
for the county unit system discriminates not only against 
city voters in Georgia, but it is the system by which 
the Supreme Court ruling on the right o f all citizens to 
vote is dodged.”

VL
Precedents for Granting the Motion to Advance

This is a case, o f public gravity and importance. In other 
cases this Court has granted and disposed o f cases on motions 
to advance as provided in the Rules o f the Supreme Court.

In MacDougall v. Green, supra, the Motion to Advance 
was served on Counsel opposite on October 12th, 1948, the



16

cause was argued on October 18th and the decision rendered 
three days later.

In Wood v. Broom, 287 U. S. 1, an appeal was filed in 
this court on October 2. Briefs were submitted on October 
11 and oral argument was heard on October 13. The Court 
announced its decision on October 18.

In McPherson v. Blacker, 146 U. S. 1, a motion to 
advance the cause was filed on the second day o f Term, 
October 11, and was granted at once. The cause was heard 
on that day and the decision rendered on October 17.

Plaintiffs respectively submit to the Court that there are 
the most compelling reasons for granting this Motion to 
Advance, and they earnestly pray that their motion be 
favorably considered.

PRAYER OF THE MOTION

For the reasons indicated above, appellants respectfully 
move this Court for such order o f this Court as will advance 
and expedite the hearing and disposition o f this cause at 
the earliest time convenient to this Court.

Respectfully submitted,

Hamilton Douglas, Jr.
M orris B. A bram

Attorneys for Plaintiffs-Appellants