Toombs v. Fortson

241 F. Supp. 65, 1965 U.S. Dist. LEXIS 6316
CourtDistrict Court, N.D. Georgia
DecidedApril 1, 1965
DocketCiv. A. 7883
StatusPublished
Cited by49 cases

This text of 241 F. Supp. 65 (Toombs v. Fortson) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Toombs v. Fortson, 241 F. Supp. 65, 1965 U.S. Dist. LEXIS 6316 (N.D. Ga. 1965).

Opinion

PER CURIAM:

This opinion and order will conclude the second chapter in this case arising out of Georgia legislative malapportionment. For the first chapter see Toombs v. Fortson, N.D.Ga., 1962, 205 F.Supp. 248, where we held that either the House of Representatives or the Senate must be apportioned on the basis of population. We retained jurisdiction pending action by the Georgia Assembly to that end, and also pending decisions of the Supreme Court of the United States in cases involving the contention that both houses of a state legislature must be apportioned according to population. The General Assembly of Georgia met thereafter and reapportioned the Senate on the basis of population. Ga. Laws, 1962, Extra session, pp. 7, 14. The theoretical minimum of population necessary to control a majority of the seats in the Senate was raised from 21.4 percent to 48.2 percent. The disparity from the standpoint of population as between districts and thus between residents of the districts was reduced from a ratio of 42.5 to 1 to a ratio of 1.81 to 1. The eight largest counties, with 41.26 percent of the state population, now have twenty-one senators, or 40.7 percent of the total. The twenty-two largest counties, with 57.11 percent of the population have 29.5468 senators, or 54.72 percent. The average district should contain 73,021 people based on the population of Georgia. Four out of fifty-four districts are below this average by more than 15 percent while two exceed it by more than 15 percent. Three districts depart from the average by more than 18 percent.

Other litigation in Georgia involving the political process, collateral to this suit time-wise, involved the county unit system of elections for governor and United States senators. See Sanders v. Gray, N.D.Ga., 1952, 203 F.Supp. 158, modified and affirmed, 1953, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, where the county unit system of elections was voided with the result that the present governor and one of the United States senators from Georgia have since been elected on the basis of popular vote. The Georgia political process as it related to the election of members of the national House of Representatives also came under attack *67 during this period. See Wesberry v. Vandiver, N.D.Ga., 1962, 206 F.Supp. 276, denying the relief sought, reversed on appeal sub. nom. Wesberry v. Sanders, 1964, 376 U.S. 1, 84 S.Ct. 526,11 L.Ed.2d 481. This case resulted in the redistricting of the ten Georgia congressional districts wherein the maximum population disparity as between them from the average now runs from a low of 16.4 percent below the average to 15.5 percent above the average. The General Assembly of Georgia accomplished this result. Ga. Laws, 1964, p. 478.

Shortly thereafter the Supreme Court rendered its decisions in Reynolds v. Sims, 1964, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; WMCA, Inc. v. Lorrenzo, 1964, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Committee for Fair Representation v. Tawes, 1964, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 1964, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; Roman v. Sinock, 1964, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620; and Lucas v. Colorado General Assembly, 1964, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632, extending the one man-one vote principle established for the election process in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, supra, and followed in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 506, 11 L.Ed.2d 481, supra, to state.legislative representation and apportionment. These decisions, on motion of plaintiffs, activated this phase of the instant litigation for the purpose of requiring reapportionment of the Georgia House of Representatives on the basis of population. The motion of plaintiffs in this regard was granted by an order dated June 30, 1964, and amended on November 3, 1964. The order voided the apportionment section of the Georgia Constitution, Art. Ill, § III, par. 1 (Code Section 2-1501), as conflicting with the Fourteenth Amendment. Georgia Code § 47-101, as amended, giving effect to this section of the Constitution was declared prospectively null and void after the general election to be held in November, 1964. The order also provided:

“The motion of the plaintiffs for further injunctive relief prior to the conduct of the party primaries or conventions and the General Election of November 3, 1964, is hereby denied at this time, provided, however, that, notwithstanding anything in Article III, Section IV, Paragraph I (Code Section 2-1601) of the Constitution of Georgia of 1945 to the contrary, the service of the members of the House of Representatives of the General Assembly of the State of Georgia to be elected at the General Election in November, 1964, shall be limited to a term of one year’s duration and provided further that the plaintiffs shall have the right to reapply to this Court for further relief should the General Assembly, which convenes in January, 1965, fail to enact, during the regular 1965 45-day session, as provided in the Georgia Constitution, such legislation as may be necessary for the General Assembly to be reapportioned in accordance with Constitutional requirements and as may be necessary to permit the holding of elections to the newly constituted General Assembly during the calendar year 1965, which elections are to be held at such time as may be necessary to permit the members of such newly, constituted General Assembly to take office no later than the second Monday in January, 1966. To the extent that state statutory and constitutional provisions might otherwise conflict with such legislative reapportionment, they are hereby declared to be void and of no effect.”

The General Assembly has acted pursuant to this order with the result of setting the number of seats at 205 (H.B. 281). These seats are apportioned among House districts created in H.B. 367. Special elections to fill the vacancies created by H.B. 367 are set up under H.B. 580. All of this legislation has now become law on the approval of the Governor.

*68 THE ISSUES

On March 10, 1965, defendant Ben W. Fortson, acting in his official capacity, moved for approval of the plan of reapportionment. Plaintiffs have responded that the plan fails to comport with the teaching of the Supreme Court in Reynolds v. Sims, supra, and related cases, and have asked the court, in substance, to reject the plan and to adopt a plan of its own in lieu thereof.

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Bluebook (online)
241 F. Supp. 65, 1965 U.S. Dist. LEXIS 6316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toombs-v-fortson-gand-1965.