Fortson v. Dorsey/Dissent Douglas

by William O. Douglas

United States Supreme Court

379 U.S. 433

Fortson  v.  Dorsey

 Argued: Dec. 10, 1964. --- Decided: Jan 18, 1965

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, 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 electros 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 electros in their districts and others to be defeated by the voters of foreign districts is in my view an 'invidious discrimination'-the test of unequal protection under the Fourteenth Amendment. Baker v. Carr, 369 U.S. 186, 244, 82 S.Ct. 691, 724, 7 L.Ed.2d 663. I had assumed we had settled this question in Gray v. Sanders, 372 U.S. 368, 379, 83 S.Ct. 801, 808, 9 L.Ed.2d 821, 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.'

Notes