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Southern Political Science Association

Recent Restrictions Upon Negro Suffrage: The Case of GeorgiaAuthor(s): Joseph L. Bernd and Lynwood M. HollandSource: The Journal of Politics, Vol. 21, No. 3 (Aug., 1959), pp. 487-513Published by: Cambridge University Press on behalf of the Southern Political Science AssociationStable URL: http://www.jstor.org/stable/2127325 .

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RECENTRESTRICTIONSUPON NEGRO

SUFFRAGE:THE CASE OF GEORGIA*

JOSEPHL. BERND AND LYNWOOD M. HOLLAND

High Point College and Emory University

D URING THE DECADE AND A HALF which has elapsed since the in-

validation of the white primary by the U. S. SupremeCourt,'

advocates of white supremacy in Georgia, as in other states in the

deep South, have employed several techniques to keep colored per-

sons away from the ballot boxes. The passage, meanwhile, of the

Civil Rights Act of 1957,2 the deliberations of the Eighty-Sixth

Congressand the activities of the Civil Rights Commissionand the

Department of Justice evince an increasingly active role by federal

authorities in implementing the guarantees of the Fourteenth and

Fifteenth Amendments.

The principal aims of this paper are to describe and analyze the

tactics of obstruction in Georgia and to suggest specific legal pro-

cedures and measures for curbing practices which deny to Negrocitizens the equal protection of the laws. An assumptionis that most

of the obstacles erected in Georgia are typical of resistance in the

deep South and that weapons of discrimination,found to be effective

in one state, are likely to be used in other states. In fulfillment of

its chief aims, the paper discusses the impediments found in several

aspects of the franchise process: registration, purging of registration

lists, voting and electoral structure. A final section of the paper is

devoted to an appraisal of the impact of discrimination upon Negrosuffrageand of the prospects for reform.

I. CHALLENGE AND PURGE

In March, 1946, the Supreme Court in Chapman v. King,3 a

per curiam decision, upheld a lower court 'ruling which voided the

white primary in Georgia. When the state administration and the

*Gratefulacknowledgmentis made for a research grant from the Social

Science Research Council, which permitted investigation in every county inGeorgia,and for the valuablecounselof ProfessorRobert S. Rankin of DukeUniversity.

'Smith v. Allwright,321 U. S. 649 (1944).271 Stat. 634 (1957).'Chatinun v. King. 154 F. (2d) 460 (1946).

[487 ]



488 THE JOURNAL OF POLITICS [Vol. 21

Democratic Executive Committee evinced a willingness to accept

the decision,4 about one hundred and thirty-five thousand Negroes

registered to vote. But an attitude of resistance soon rallied a large

number of political supportersamong white Georgians. Since Negro

registration was already a fait accompli, white supremacy forces,

led by gubernatorial candidate Eugene Talmadge, turned first to

the methods of purging the voter lists in an effort to block the

participation of colored voters. Section 34-605 of the Georgia codeprovided that any qualified voter in a county might challenge the

right to vote of any registrant whom he thought not properly

qualified. Each complaint had to specify the ground of the action,and the person challenged had to be given at least one day's

notice before his qualificationswere examined.5

To encourage the use of this device for challengingregistrants the

headquartersof Talmadge mailed hundreds of mimeographed chal-

lenge forms to supporters in the counties. Negro registrants in more

than thirty counties were challenged en masse, while few or no

white registrants were challenged in any county.6

Technically, these forms complied with the legal provision that

"a challenge shall specify the ground of the challenge," for theforms alleged that the persons challenged lacked all of the re-

quirements for voting mentioned in the State Constitution. In pointof fact hundreds of the challenged persons were unknown to those

who complained.Challengersoften lacked specific knowledge of any

voting disabilities. They merely assumed that subsequent examina-

tions would reveal a basis for disqualification.7

The most important requirements for voter qualification, pro-

vided in the Constitution of Georgia, are (1) ability to read andwrite, or (2) "good character and an understandingof the dutiesand obligations of citizenship."8 But in 1946 there were no detailed

instructions for applying these tests. In most of the counties, origi-

'Rules and Regulations of the Democratic Executive Committee of Georgia,adopted May 2, 1946, Atlanta.

5Georgia Code Annotated, 1933. See the Statesman, April 18, 25, 1946.This newspaper was edited by Eugene Talmadge.

'Moultrie Observer, July 13, 15, 1946; Millen News, July 11, 1946; Heath

et. al. v. Wright et. al., civil, #103, Middle District of Georgia, July, 1946.'Phillips et. al. v. Miller et. al., civil, #166, Middle District of Georgia,September 4, 1948.

8Article II, Section I, Paragraph 4. See Georgia Laws, 1945, 15-16. An al-ternative test was available to persons unable to read or write solely becauseof physical disability.



1959] RESTRICTIONS ON NEGRO SUFFRAGE: IN GEORGIA 489

nal registrationprocedures were handled by the tax collectors, who

did not always follow the law. Precedents were lacking for purging

the voter lists pursuant to a challenge, for the provision had been

applied infrequently in the past. Under these circumstances the

registrars enjoyed a wide discretion in formulating their own

policies.

Procedures varied considerably from county to county. In

counties where registrars assigned the burden of proof to the chal-

lengers, the failure to produce any proof resulted in dismissal of the

complaints. Registrars in some counties assumed that the tests of

literacy or understandinghad already been applied (in the originalact of registration), and they declined to apply them again in the

absence of evidence indicating a necessity for doing so. Elsewhere

the burden of proof was placed upon the challenged persons. The

failure of Negroes to appear at the hearings when summoned

resulted in numerous disqualifications. For those who did appear,

the constitutional tests were applied in a variety of improvised

procedureswhich eliminated large numbers of registrants.9

In four counties faulty application of the constitutional tests

and other defects were cited in injunctive action by a U. S. District

Court. The Court ordered a halt to discriminatorypurging and res-

toration of the names of Negro registrantsto the voting rolls. In one

county where facts and law were in dispute, a temporary injunction

restrained further proceedings, but not until seventy percent of the

Negro registrants had been purged. This action was allowed to

stand.10

Because of the peculiar county unit system, the decisions in

individual counties were crucially important. The policies of manyregistrarsseemed to follow lines of factional partisanship: In several

counties pro-Talmadge registrars purged Negroes in large numbers.

Anti-Talmadgeites, equally partisan, used their discretion to favor

the challengedpersons in a dozen counties. The successes attained by

the purges probably encouraged similar efforts two years later.

9V. 0. Key, Jr., Southern Politics in State and Nation (New York, 1949),p. 570, briefly describes the purges. For details see daily presses, particularly

Macon Telegraph, July 11-18, 1946; Macon News, July 13-18, 1946; andAtlanta Daily World, July 12-19, 1946."0SeeBrown et. al. v. Raulerson et. al., Roberts et. al. v. Griffis et. al,

Bennett et. al. v. Wren et. al., civil, #155-157, Southern District of Georgia,July, 1946; Heath et. al. v. Wright et. al., civil, #103, Middle District of

Georgia, July, 1946.



490 THE JOURNALOF POLITICS [Vol. 21

Several large-scale purges preceded the gubernatorial primary of

1948 in which Herman Talmadge was successful."

Although legal action to counter the purges in 1946 was limited

to the cases involving injunctive action, there is reason to believe

that relief might have-been secured in civil actions for damages.

The challenge procedures were defective in several particulars.

In the first place some counties failed to comply with the pro-

vision of state law that differing political groups and ideologies berepresented on the boards of registrars.12 Superior Court judges

who appointed registrars usually sought to fulfill the requirement,

but the realities of bi-factional strife made the task exceptionallydifficult. Registrars, like other local political leaders, made fre-

quent re-alignments. Some men who were anti-Talmadge when they

received their appointments had switched their allegiance to the

white supremacy champion before the 1946 purges. Moreover, the

appointment of Republicans or Negroes might have proved embar-

rassing to judges who had to stand for re-election in solidly Demo-

cratic Georgia.

A second legal defect is suggested by the policy, adhered to in

some counties, of assigning the burden of proof to the challenged

persons. The fact that the names had already been entered on the

registration lists carried with it the presumption that these persons

had been qualified under the literacy or understanding and good

character tests.'3 Would it not follow, therefore, that any challenge

imposed a burden of proof upon the challengers-not merely to

allege their disability but to produce tangible evidence indicating

that the registrants in question had been improperly qualified and

were disabled from qualifying? This is certainly a normal admini-strative rule, unless officialprocesses are to be multiplied beyond the

point of reasonableness or convenience. That boards of registrars,

lacking in representativepersonnel, chose to re-examineindividually

the challenged persons, placing upon them the burden of proof, is

evidence of defective procedures, violative of equal protection

standards.'4

"'AtlantaConstitution,September8, 1948.

`Georgia Code Annotated, 1933, 34-301, 302."8GeorgiaCode Annotated,1933,34-401 (55) provided that the registration

lists be considered"primafacie evidence of the right of the person whosename appears thereon to vote."

"The hearings were conducted under the most severe time pressures.Registrationended July 5, 1946; the tax collectors were given ten days to



1959] RESTRICTIONS ON NEGRO SUrFRAGE: IN GEORGIA 491

The answer,of course, to the argumentconcerningthe burden of

proof is that the law, by its silence, left to the registrars a full

discretion.But this vague discretion,when coupled with the manner

of its use, was the most serious defect of the purges. A vague

statutory discretion, when subjected to administrative abuses, has

frequently invited invalidation by the courts. In the early case of

Yick Wo v. Hopkins (involving use of California ordinances to bar

Chinese aliens from pursuing the laundry business), the Supreme

Court distinguished between "discretion"and "naked and arbitrary

power." The authority of the administrative supervisors was ". . .

not confided to their discretion in the legal sense of that term, butis granted to their merewill. It is purely arbitrary,and acknowledges

neither guidance nor restraint."'5 In the purges, as in the Yick Wo

case, the class of persons against whom the administratorsacted was

a racial minority, occasionally coupled with a few white persons

to make discrimination appear slightly less obvious.

The legal infirmities of the purges appear, therefore, in the

composition of the examining boards, in the abnormal procedure

in assigning the burden of proof to the challenged, in the arbitraryand non-legal power or "will" available in the board, and in the

capricious application of the prerogative toward a racial class of

persons. These legal defects signify a denial of equal protection, but

the substance of the tests, as applied, evinces discrimination even

more clearly. Homemade tests, lacking any objective standards,

were not a valid application of the constitutional provision which

required evidence of "good character and an understandingof the

duties and obligations of citizenship. . ..

Federal decisions after 1946 show that the courts are determinedto reject vague criteria and to require objective standards. A sub-

jective test, said a judge in a 1954 case, might disenfranchise the

most learned of men.'6 The clearest statement is probably that in

the Alabamacase, Davis v. Schnell, in which the registrationdevices

in the Boswell Amendment were voided:

prepare the lists for use. Since the primary election was to be held July 17,the registrarshad a legal minimumof one day to purgethe lists. See Georgia

Laws, 1944 (special session), 2-8. In actual practicethe tax collectors trans-mitted the lists to the registrarsfor purging soon after July 5, or before theexpirationof the ten day period.

"Yick Wo v. Hopkins, 118 U. S. 356, 366 (1886)."8UnitedStates District Judge Bootle in his charge to the jury, as reported

in the ColumbusLedger, September21, 1955. See Thornton et. al. v. Martinet. al., 1 Race RelationsLaw Reporter, 213 (1956).




The words "understand and explain" do not provide a reasonablestandard. A simple test may be given one applicant; a long, tedious,

complex one to another; one applicant may be examined on one articleof the Constitution; another may be called upon to "understand andexplain" every article and provision of the entire instrument.

To state it plainly, the sole test is: Has the applicant by oralexamination or otherwise understood and explained the Constitution tothe satisfaction of the particular board? To state it more plainly, theboard has the right to reject one applicant and accept another, dependingsolely upon whether it likes or dislikes the understanding and explanationoffered. . . . The board has the power to establish two classes, those towhom they consent and those to whom they do not . . . . Such arbi-trary power amounts to a denial of equal protection of the law within

the meaning of the Fourteenth Amendment. . . .17

That the power exercised by the boards in the Georgia purgesinhered from the silence of the law, while the powers in the Yick Woand Alabama cases were specifically authorized, seems not to be of

essential importance, for

Though the law itself be fair on its face and impartial in appearance,yet, if it is applied and administered by public authority with an evileye and an unequal hand, so as practically to make unjust and illegaldiscriminations between persons in similar circumstances,

material totheir rights, the denial of equal justice is still within the prohibition ofthe Constitution.18

Between 1948 and 1954 white supremacy forces dominated

Georgia without resort to the purge weapon. In 1954 the techniquereappearedas a by-productof the competition between local factionsin Randolph County (in Southwest Georgia). One faction hadoffered quiet encouragement to Negro registration prior to 1954.When a rival faction challenged most of the colored registrants in

the county and when about five hundred names were removed fromthe registration rolls by the registrars, some of the colored votersinitiated a suit for damages.

Evidence showed that the registrars had not complied with the

Georgia law. The act of 1949 required (1) a test of reading and

writing, or (2) a test, requiring registrants to answer ten of thirtyfactual questions.'9 In the Randolph County hearings Negroes had

"Davis v. Schnell, 81 F. Supp. 872, 878 (1949). See also Reddix v. Lucky,

252 F. (2d), 930 (1958). An able analysis of the Alabama registration processbefore and after the invalidation of the Boswell Amendment is Donald S.Strong, Registration of Voters in Alabama (Tuscaloosa, 1956).

"Yick Wo v. Hopkins, op. cit., pp. 373-374 (1886).:9Georgia Laws, 1949, 1211-1221.




been asked to "explain" constitutional provisions. The United StatesDistrict Judge directed a verdict against the defendants, and ajury assessed the amount of the monetary damages. Ruling that thecase involved a class action, the judge ordered the names of morethan one hundred persons, illegally purged, to be restored to theists.20

Although the decision had applied a serious check to the purge

device, especially through its damage and class action features, itsstate-wide influence was short-lived. In 1956 the names of Negroeswere removed from registration rolls in Pierce County under

conditions of local factionalism, similar to those which had existedin Randolph County. But in Pierce County the registrars were

careful to follow the letter of the Georgia law. Several hundrednames were stricken from the voting rolls, but the registrars left a

few names of Negroes, including school teachers and others of

superioreducation, on the list. A few whites were summonedalongwith the mass of Negro registrants, and several whites were dis-

enfranchised, thus affording color to the claim of an impartial pro-

cedure, divorced from connotations of racial discrimination. Al-though the purge was based on challenges and although the chal-lenged persons were required to request a hearing, or to facedisqualificationwithout a hearing, the court saw no infirmities inthese procedures.21

The result in the Pierce County case suggests that Negrovoters can be successfully purged (1) as long as officials follow theletter of the Georgia law and (2) as long as the level of Negroeducational attainments remainslow. Despite rapid economic strides

and improved educational opportunities, the inferior position ofNegroes will likely prevent relief from these conditions in ruralareas for the foreseeable future. Negroes of superior education andability are leaving these areas, and those who remain find it difficultto challenge their traditional racial status.

The challenge-purgedevice, on the other hand, may have alreadyserved its purpose in Georgia.The scheme was an essential stop-gapmeasure in securing the all-important county pluralities in 1946.

Since that time, its importancehas been merely local. White suprem-"Thornton et al. v. Martin et. al., I Race Relations Law Reporter, 213

(1956)."Harris v. Echols, 146 F. Supp. 607 (1956).




acy has been dominant ideologically, and political power has been

stabilized in the hands of its advocates.

But successful operation of the plan in Georgia may have en-

couraged its use elsewhere. Louisiana, for instance, attempted the

largest single purge, involving about three thousand voters in

Ouachita County. Here the purge was illegal on its face because

Louisiana's statutory procedures were not followed.22 Whether

accomplished without litigation, or ultimately invalidated by a

federal court, the challenge-purgehas usually achieved its immediate

goal, the disenfranchisement of colored votors in an impending

election. It is employed when challengers are assured of the co-operation of the registrars, and its success rapidly becomes a fait

accompli because of the "law's delay."

II. REGISTRATION PROCEDURES

The paramount aim of white supremacy leaders in 1946 and

1947 was the restoration of a purely white primary. They thought

that the opinion of Judge Samuel Sibley in Chapman v. Kingpointed the way. The white primary in Georgiahad been voided on

the state action principle that numerous statutes made the primary

22In Reddix v. Lucky, 148 F. Supp. 108 (1957), the United States DistrictJudge Dawkins upheld a motion for summary judgment, dismissing the

complaint. The failure of the plaintiff to make an effort to re-register was"bad faith . . . sheer stubborn vindictiveness." The Circuit Court in a two toone vote thought otherwise, see 252 F. (2d) 930 (1958). Judge Tuttle saw a

clear intent to discriminate because the registrar had summoned Negroes to

appear in such large numbers that it was humanly impossible to hear all

of the cases in the brief time allotted for the hearings. The Court also notedthe failure of the District Court to examine the questions of fact which wereraised in the complaint, and it found apparent admission by defendant registrarthat the provision for publication of notice of the challenge and hearing andthe time interval specified in the law of Louisiana had not been properlyfollowed.

The decision of the district judge is important for the dicta. While thejudge dismissed the suit on technical grounds, he observed that discriminationwas evident in the timing of the challenges, which were filed just prior to anelection when books were closed for re-registration. He suggested that the lawought to forbid challenges during a thirty day period immediately prior to

an election. He also speculated that the challengers lacked specific knowledgeas to any voting disabilities of many of the thousands of Negroes challenged,and he suggested that challengers ought to be made liable for civil damages,if they summoned voters without adequate evidence. As previously noted, pp.488-491, these infirmities were also evident in the Georgia procedures.




color away from the "white folks' ballot boxes."29 But just beforethe GeorgiaGeneralAssembly convened in 1949, a U.S. court voided

the Boswell Amendment of Alabama. The test, requiring applicants

for registration to "understand and explain," was hopelessly vague,

said the court, with no directions for its application or for evaluatingthe answers. As applied, the law rejected a heavy proportion of

Negroes and no whites. If experts, even judges, disagreed as to the

meaning of constitutional provisions, could lay registrars,unguided,

be expected to decide?30

With the Alabama decision as a negative guide, the Georgia

lawgivers enacted a law which required re-registrationof all voters.Two tests were provided, as previously noted, reading and writing,

or ability to answer ten of thirty questions of an objective nature.31

But the 1949 law did not produce a white primary. Many voterswere afraid to submit to examination under its terms. Others re-

sented the necessity of standing a test before being permitted toretain a right or privilege which they had previously enjoyed. The

expense was a drain upon the marginal economy of many small

counties. Under heavy pressure from citizens and local officials, theTalmadge administration secured from the General Assembly in

1950 an amendment to the law.32 Voters registered under the old

provisionswould remaineligible to cast ballots.

Although the 1949 act offered explicit and detailed provisions

for registrationprocedure,the counties continued to display the most

varied of extra-legal or illegal practices. The State Supreme Courtruled that the law was valid and non-discriminatory on its face,33

but a 1955 survey by the Bureau of Public Administration of the

University of Georgia revealed that scarcely a single county wasconducting its registration in full accord with the statute. Racial

discrimination was not a principal reason for this record of non-

enforcement,although there was some discriminationand the paddedlists of white voters were an invitation to fraud which was some-times accepted. Lack of funds for efficientpersonnel and operation,

ignorance of the law, and a tradition for laxity also hampered

29A phrase popular with the late Eugene Talmadge during his successful

1946 primary campaign. See Americus Times-Recorder, July 11, 1946..0Davis v. Schnell, 81 F. Supp. 872 (1949). See also Strong, op. cit., pp.

21-25. Cf., Key, op cit, pp. 632-635."Georgia Laws, 1949, 1204-1227.82Georgiz Laws, 1950, 126-131.`3Franklin v. Harper, 55 S.E. (2d) 221 (1949); 205 Ga. 779 (1949).



498 THE JOURNAL O0 POLITICS [Vol. 21

adopted by the legislature. The median number of school years

completed by non-whites twenty-five years of age and over is about

four years in the State. For white citizens in the same age group the

figure is almost eight years.38

As finally passed, the Registration Act of 1958 re-enacts the

requirement for reading and writing and provides a new test for

persons unable to read and write. Illiterates must answer twenty

of thirty questions, some of sufficient difficultyto tax the learning of

any well-educatedperson. The new test asks for the qualificationsof

a representative to the General Assembly, for a description of the

amendment provisions of the United States Constitution, how thewrit of habeas corpus may be suspended, and for other information

of similar difficulty.39 No set of answers for these questions is

provided in the law. Although the statute creates a State Registra-

tion and Election Information Board, which might be expected to

furnish a set of answers, the Board had not done so almost a year

after the statute became effective. In the absence of specific answers,

the test contains some vague features.40

The act provides for a registration card and for information

concerning identification, residence, age, citizenship and criminal

record, if any, of applicants for registration. Furthermore, "...

the registrarsmay requireadditional informationand provide for its

inclusion on the card."'41Any effort to apply this vague discretion

could cause trouble for the act. In Davis v. Allen, a Virginia court

held that registrarshad no authority to apply questions in addition

to those prescribedin the Constitution.42 A federal court would be

unlikely, in a case involving racial discrimination, to display a

broader tolerance, even though the discretion is authorized bystatute. Another section of the act grants a "blank check" dis-

cretion of a similar nature:

"8UnitedStates Census of Population, 1950, United States Government Print-

ing Office, Washington, 1952, P-B11.

"Georgia Laws, 1958, I, 277- 282.

"'Georgia Laws, 1958, I, 279. What, for instance, is a republican form of

government? Webster's definition, relied on by some registrars, is "a state

. . . in which the supreme power is vested in representatives elected by popu-

lar vote." This definition seems to fit the British Parliament, but a student

of government would not be likely to maintain that Great Britain is a

republic."1GeorgiaLaws, 1958, I, 274.

"'Davis v. Allen, 160 S.E. 85; 157 Va. 54 (1931).



1959] RESTRICTIONS ON NEGRO SUVFRAGE: IN GEORGIA 499

The Board of Registrars shall have the right and shall be chargedwith the duty of examining from time to time the qualifications of each

elector whose name is entered upon the list of qualified voters, andshall not be limited or estopped by any action taken at any prior time.43

Because of the vagueness of these two sections, the constitutionality

of the act may depend upon the policy of enforcement. Any dis-

criminatory application of the vague discretionary powers granted

in the Georgia law seem clearly proscribed, if the Virginia and

Alabama precedents are followed.44

Most of the publicity regarding the act has centered upon the

difficult test for illiterates. This test ought to accomplish its evidentaim, the disqualification of persons who cannot read and write.

Many will be discouraged from applying; a few will take the test

and fail. But these generalizations were true of the more simple test

in the 1949 act, whenever enforced.45 Potentially the most valuable

section of the new law is the provision for a state board to hold

seminars and to furnish registration and election information to

county officials.46 Yet the board has been relatively inactive so far,

and the same variety of non-legal procedures has been evident in

the counties.47Other restrictive schemes have been under discussion in Georgia.

One is an oath to uphold Georgia principles, including states rights

and segregation. In South Carolina, as noted above, an oath of

similar content was invalidated in Brown v. Baskin. Another plan,

likely to receive stronger consideration, is to expand the list of

crimes, held to be grounds for suffrage disqualification.48

III. NON-APPLICATION OF LITERACY TESTS TO WHITE CITIZENS

The claim of Professor V. 0. Key seems somewhat exhorbitant:

"No matter from what direction one looks at it, the Southern

literacy test is a fraud and nothing more." While it has been true,

as Key says, that the test ". . . is rarely administered to whites"

and that it has been applied "chiefly to Negroes and not always to

"GeorgiaLaws, 1958 I, 286."Davis v. Allen and Davis v. Schnell,op. cit.

"See Shadgett, op. cit., pp. 11-14."GeorgiaLaws, 1958, I, 293-294.7AtlantaJournaland Atlanta Constitution,April 27, 1958.

"See Bruce Galpin, Atlanta Constitution,September29-October3, 1958.



500 THE JOURNAL 0 POLITICS [Vol. 21

them,"49 some Georgia counties, especially those containing cities,

administer the law with impartiality and considerable competence.

In many rural counties, as previously noted, conditions have been

and are deplorable, and in practically all counties technical vio-

lations have occurred. In some counties discrimination has been

overt and in many more it is always a distinct possibility, if the

need for it arises. But "fraud"involves the actual, not the potential,

and as Professor Key subsequently recognizes, may be distinguished

from incompetence.

The principal intent of the literacy test is racial discrimination.

There is hardly room for doubt on this score, although the Southcontains its share of students who advocate a literacy standard on a

thoroughly rational basis. Key is right in saying, ". . . if any test

of understanding were applied at all to any substantial number of

citizens of status, the registrars would be hanged to the nearest

lamp post and no grand jury could be found that would return a

true bill."50 The statement assumes a truth of major importance.

The most pervasive type of discrimination in registration involves

the failure to apply the test to white persons. The failure to test the

banker, the plantation owner, the membersof the "old families," is

just as definitely a denial of equal protection to Negroes as is the

most sordid device to keep the latter away from the ballot box. A

right illegally awarded is no less discriminatory than is a right

illegally denied. Although there would appear to be no legal reason

to prohibit an attack on this kind of discrimination, there are

difficult obstacles of a practical nature. In Georgia the challenge

provisions of the registration law are readily available, but com-

munity reaction to the use of these clauses by, or on behalf of,Negroes would be hostile to say the least.

It would be difficult, moreover, to establish a cause of action

in any court. Petitioners could not allege that the registrants

complained of were lacking in any qualifications until they had

actually been tested for registration. If the latter persons were

tested and found to be improperly registered,then petitioners would

have to show how the processes injured them. This would be ex-

ceptionally troublesomein view of the indirect nature of the injury.They would need to show that they had been treated in a different

fashion by the registration officials. But a petitioner could not

49Key, op. cit., pp. 576-577.

50Ibid.,p. 577.



1959] RESTRICTIONS ON NEGRO SUfl.RAGE: IN GEORGIA 501

complain of an injury under a law of which he had availed himself.

Even if these obstacles were removed, how could a court find a

basis for assessing damages?51An alternate solution might be afforded, if the Congress author-

ized intervention by the Department of Justice. The legislation,

identifying the nature of the complaint, would simplify the prob-

lem of federal lawyers in the courts and would serve as a warning

to the state officers. Recalcitrant registrars,who failed to heed the

warning, would be enjoined. If compliance resulted from this kind

of legal persuasion, the hazards of criminal prosecution could be

avoided.IV. THE VOTING PROCESSES

The most widespreadand spectacularevidence of discriminatory

practices at election time occured in 1946 and 1948, shortly after

invalidation of the white primary. Election manipulation accom-

panies partisan control of the election machinery. One scheme, em-

ployed during the fight for political control of the state, was the

"slowdown."In Savannahand Augusta,Negroes were challengedand

questioned as they appeared at the polls. The aim was to delay thevoting. In Savannah procedural arguments among the poll holders

and inadequate voting facilities for Negroes further delayed ballot-

ing. In each of these cities the plan barred several thousand colored

voters from casting ballots before the polls closed. In Savannah the

tactic decisively influenced the local outcome in the gubernatorial

primary of 1946.52

More subtle than the "slowdown"and more widely employed is

the system of assistance by poll holders. For many years it has beencustomary in Georgia for election officials to assist illiterate or

physically disabled persons in marking their ballots. Abuse of this

practice has accompanied vote-buying or other efforts at control. If

the poll holder marks the ballot, or sees it marked, he is assured

that the vote is "right." The same technique has served to control

the votes of Negroes, sometimes in the interest of white supremacy

candidates.53

"1The concurring opinion of Justice Brandeis, Ashwander v. T. V. A., 297U.S. 288, 346 (1936), analyzes some of the legal rules which would inhibit acomplaint of this kind.

"2SavannahMorning News, July 18, 1946; Augusta Herald, September 8,1948.

"3The scheme of abusing assistance to voters has been employed regularlyto control votes in Philadelphia. Pennsylvaniz Law Review, CVI (December1957). 279-291.




The most widely prevalent technique for preventing Negroesfrom voting, or for controlling their ballots if they do go to thepolls, has been intimidation in one form or another. Intimidationis, obviously, a broad term and may encompass a variety of prac-tices from verbal threats to outright violence. Cross-burningsbythe Ku Klux Klan, the posting of written threats in the Negrocommunity, picketing of the polls against Negroes and discrimina-tory employment and business practices have been in evidence.54

The decline in the use of violence and other spectacular formsof intimidation after 1948 and the disappearanceof the "slowdown"

scheme have been encouraging signs in Georgia, but it should benoted that these trends, like the decline in the use of the challenge-purge, have been achieved through the stabilization of white rule.Among Negroes, increasingapathy has been evident after the initialenthusiasm of 1946 subsided. If Negro use of the franchise shouldonce more appear to menace white dominance, reaction, includingresort to extreme measures, might re-appear. It is also unquestion-ably true that many whites have become habituated to colored vot-

ing in the primaries. Others find positive advantages in the Negrosuffrage. Despite the dominance of the white supremacy forces onthe statewide level, Negroes, in alliance with white factions, holdlocal power in the city counties and in some rural counties wherealliances with county officials, usually including the sheriff, havebeen achieved. Under these conditions the opposition of white su-premacy forces has been increasingly strenuous, but there is littleevidence of systematic intimidation, possibly because important of-ficials are hostile to such methods.

The failure of the Department of Justice to prosecute in casesof ballot manipulation and intimidation may evoke the righteousindignation of persons solicitous for the rule of law, but in 1946 the

"In the trial of Thornton et. al. v. Martin et. al., op. cit., Attorney DanDuke quoted numerous statements by state officials to show how these ex-hortations created an atmosphere of opinion hostile to Negro voting and tend-ing to intimidate. Columbus Ledger, September 16-20, 1955. For evidence ofhomicide, apparently linked with voting, see Atlanta Daily World, July 20,1946, and New York Times, September 11, 1948. For evidence of Ku Klux

Klan activity and other organized intimidation., see Macon News, July 17,1946; Atlanta Daily World, July 18, 1946; New York Times, August 13, 1946.The high tide of Klan activity came in 1948. See New York Times, March 11,1948; Macon Telegraph,September 4, 9, 1948; SpartaIsmaelite, September 9,1948; Valdosta Times, September 8, 1948.



19591 REsTRICTIONS ON NEGRO SUFFRAGE: IN GEORGIA 503

federal lawyers labored under inadequate statutes and immense

practical problems. In prosecuting the perpetratorsof violence, for

instance, the government could not proceed against individuals but

was requiredto prove "conspiracy."55 Two examples illustrate the

twin problemsposed by vague statutes, narrowly interpretedby the

courts, and by uncooperative witnesses in hostile communities. In

each of these cases the Civil Rights Section of the Justice Depart-

ment agreed to seek a conviction only when it was evident that the

state would not, or could not, act.

Following the widely publicizedWalton County lynching of four

Negroes in 1946, the Department of Justice and the FBI exertedthe most strenuous efforts to procure an indictment but without

success.56 In the Screws case,57 decided the previous year, a sheriff

had beaten a Negro prisoner so severely that he later died of the

injuries inflicted. When the Justice Department obtained a convic-

tion, the SupremeCourt ordereda new trail on the ground that the

trial judge had erred in his charge to the jury. There must be proof

that the crime was accomplished by the "willful," or "purposeful,"

discriminationof an official who aimed to deprive the victim of a

civil right. On re-trial, the defense claimed personal malice, as the

sole motive, and the sheriff was acquitted.

Another troublesomeproblem of interpretation was involved in

the latter case. Several justices in this case thought that an offi-

cial who exceeds or violates a state law, while purporting to act

under its authority, does not commit the act "under color of

law" within the meaning of the statute. A more recent trend

has been in harmonywith Justice Douglas' opinion for the majority

in the Screws case:

r"United States Code Annotated, 1952, 18-241 (formerly section 51). An

excellent analysis of the statutory weapons available to the Civil Rights Sec-tion during this period and the problems involved in their use is Robert K.

Carr, Federal Protection of Civil Rights (Ithaca, 1947), pp. 56-150. Cf., The

President's Committee on Civil Rights, To Secure These Rights (Washington,1947), pp. 139-178, featuring the recommendations of the Committee.

"Cullen Gosnell and Lynwood M. Holland, State and Local Governmentin the United States (New York, 1951), p. 129.

"Screws v. United States, 325 U.S. 91, 100 (1945). Cf., Snowden v. Hughes,

321 U.S. 1 (1944), in which the requirement of "willfulness" is used success-fully to bar conviction of an Oklahoma election official who refused to certify

the nomination of a candidate who received the most votes in a primary.



1959] REsTRICTIONSON NEGROSUFFRAGE:IN GEORGIA 505

It is evident that this language suffers from the same malady

which a federal court found in the Boswell Amendment of Alabama.

If judges disagree as to the meaning of constitutional provisions,

said that court, how could registrarspass upon the efforts of an ap-

plicant to "explain" a section of the Constitution?61 In view of

the vagueness of the rule, requiring"willfulness,"how many juries

distinguishthe rights "madespecific?" The rule fails to offer a clear

"warning"as to what offenses may be punished, because it spreads

a pall of doubt as to what constitutes a denial of equal protection.

The legal dilemma, involving the question of "willfulness,"was

not the only infirmity of the anti-discrimination statutes prior to1957. The civil rights statutes passed after the Civil War suffered

from a numberof disabilities. Some imposed overly severe penalties

which discouraged juries from convicting; others were excessively

broad or vague. Federal courts narrowed some provisions, invali-

dated others. Some were repealed by Congress. Ultimately, only

three provisions, important for enforcement, remained: (1) A sec-

tion punishing conspiracy to injure, oppress, threaten, or intimidate

any citizen in the exercise of a right or privilege secured by the

Constitution or laws of the United States. (2) The section, already

alluded to, prohibiting willful action under color of law to deprive

any inhabitant of rights, privileges, or immunities secured or pro-

tected by the Constitution and laws of the United States. (3) A

section prohibiting peonage.62

The Civil Rights Act of 1957 seeks a new approachto the prob-

lem of equal protection. 'The Act aims to secure compliance, not

punishment. The use of the injunction is its principal feature, sug-

gesting that criminalprosecutionswill occuronly when officials proveobdurate. Thus a major aspect of the plan is its educational pur-

pose. The Civil Rights Commissioncreated by the Act furthers this

educational purpose and also functions as a research agency for

studying the problems of enforcement.

The Act also broadensthe scope of protection, banningindividual

intimidation, as well as conspiracies, in federal elections. Dis-

trict courts are to have jurisdiction over election cases without re-

personal malice, Crews sought to avoid the onus of "willful" intent to deprivethe victim of his civil rights. The court said an officer could consistentlyhold both motives, and the conviction of Crews was upheld.

"1Davisv. Schnell, op. cit., p. 878."2See Carr, op. cit., pp. 56-190.




gard to state administrative remedies, provided or pursued. The

Department of Justice need not now wait until the evil becomes

actual, but may seek an injunction when interference threatens.63

The act eliminates the requirementthat federal jurors must be com-

petent under state law. Though less tangible, other advantages

are'offered by the law. The mere fact of its passage, despite the

filibuster threat, was an important psychological victory. The Com-

mission, though impermanent, and the provision for adding an

Assistant Attorney General evidently indicate the determination of

the federal administration to reinvigorate civil rights enforcement.

Support by a majority of both national parties in both houses ofCongress is perhaps even more encouraging.

The need for corrective legislation may appear, as weaknesses in

the new act are disclosed. One evident area of inadequacy is seen

in the absence of protection against individuals who bar access to

the ballot in state elections. This gap may be bridged if the "state

action" concept should be construed to include an obligation on the

states to guarantee free access to ballot boxes.64 Department

of Justice attorneys also see a need for broadened subpoena powers

in civil rights investigations. The 1957 act grants the subpoenapow-

er to the Commission but not to the Department of Justice.

The new trend in civil rights enforcement certainly denotes a

broader interpretation of the constitutional protection offered by

the Fourteenth and Fifteenth Amendments. While "states rights"

advocates view with alarm the abandonment of the traditional re-

straints upon federal activity in this area, many others applaudwhat

they regard as a return to the spirit and the intent of the drafters

8371 Stat. 634 (1957). Cf., Thomas R. Winquist,"Civil Rights,"MichiganLaw Review, LVI (February, 1958), 619-630; Harvard Law Review, LXXI

(January, 1958), 573-575."4Winquist,op. cit., pp. 619, 628. On the other hand, a Federal judge

construes the Act as granting unconstitutionalinjunctive powers over indi-viduals in state elections. The first case brought by the Department ofJustice under the 1957 Act charged discriminatoryregistration practices inTerrell County, Georgia. Negroes, including several who hold college degrees,were denied the right to registerfor voting. Holding that Congress exceededits constitutional powers in authorizing the Attorney General to seek an

injunctionaimed at the action of a privateindividual in a state election, the

U. S. District Judge invalidated a major section of the Act. Although thecase was clearly one involving "state action"by officials acting "under colorof law," Judge Davis ruled that the parts of the Act were inseparable,and hedeclined to consider the "state action" question alone. The Department of



1959] RESTRICTIONS ON NEGRO SUrFRAGE: IN GEORGIA 507

of these amendments.65 They envision an era in which statutes,

court decisions and ultimately state practices may reflect in reality

the slogans and doctrines of nineteenth-century democracy.

V. COUNTY UNIT SYSTEM

The county unit system, a statutory institution with a unique

application to Georgia primaries, is frequently mentioned as ad-

versely affecting the political power of voters in populous counties

by augmenting the ballot influence of voters in sparsely populated

counties.66 Fulton County (Atlanta), for instance, has six unit

votes for its one hundred and thirty thousand registered voters,while ChattahoocheeCounty with two unit votes has three hundred

and nine persons registered.67 Criticism of the system has usually

centered upon the statistical inequities, but the inequities of the

unit system extend beyond the mere enhancement of some votes

and the devaluation of others. The inequalities extend to the very

heart of the political process.

Justicehas appealedto the U. S. SupremeCourt. U. S. v. Raines, civil, #442,Middle District of Georgia, April 16, 1959; see also Law Week, XXVII(April21, 1959) 2530-2531.

`Cf., "Private Education with Public Funds?"JOURNALOF POLICS, XX

(November,1958), 635. Congressionalinterpretationof the FourteenthAmend-ment's intent is seen in the passageof the Civil Rights Acts of the eighteen-seventies which prohibited private discriminationwhen upheld by statepolicy. See citations at page 647.

"In Mississippia county unit plan exists for countingvotes in the generalelection. The system has been of small importancebecausethe primaryis thedecisive contest in Mississippi. In Maryland primariesare determinedon acounty unit basis somewhatsimilar, but less severelydiscriminatory,than that

of Georgia. In Maryland,however, the ultimate decisionbetween the two na-tional parties is determinedby popularvote in the generalelection. VirginiaWood Hughes,"The County Unit Vote in Maryland,Mississippiand GeorgiaElections,"The GeorgiaReview, V (Fall, 1951), 354-361.

"7Thesystem counts the whole vote of a county for the candidate whoreceivesa pluralityof the popularvote within the county. Gubernatorialandsenatorialcontests are determinedby majority of unit votes; other statewideraces requirea plurality of unit votes. If no candidatewins a majority ofunit votes in gubernatorialand senatorialraces, a run-off is held. Except inone congressionaldistrict,the unit system determinesthe nominationin con-gressionalprimaries.

The 410 unit votes of the state are distributedas follows with each countyhavingtwo unit votes for eachmemberof the State House of Representatives:The eight most populous counties each have six unit votes; the thirty nextmost populous countieseach have four unit votes; the remainingone hundredand twenty-one counties each have two unit votes. Georgia Code of 1933,34-3213.




Although the county unit system developed independently of the

techniques designed to thwart Negro suffrage,68 that system today

is by far the most effective device for preserving white supremacy

since the fall of the white primary. In fact it is the unit system

which implements the challenge-purge, registration discrimination,

intimidation, violence, economic pressures and ballot manipulation

and gives them vitality in terms of political power, unless, as is

rarely the case, Negroes in rural counties are effectively organized.

The unit plan secures its paramount influence through a rigid

compartmentalization of the electorate. When white rule is safe in

a county, officials may display a scrupulous regard for the integrityof the ballot; when that rule is in jeopardy, the devices mentioned

above offer a choice of weapons. Crudities like the legislative actin Alabama which gerrymandered Macon County for anti-Negro

purposes, are unnecessary in Georgia. The county unit system al-

ready exists as a statewide system of separate political units, many

of which have been converted into gerrymandersvia the techniquesof control. Since the county plurality, however small, is translatedinto winner-take-all unit votes, the system increases tremendously

the influence of men who hold the balance of power in a county.

Votes cast for the losers are, in effect, reversed and counted for thewinner.

A case study of the 1946 gubernatorialprimary election disclosesthe related control features of the county unit system in their most

spectacular setting. Eugene Talmadge, the winner on the basis of

68Ironically, this disfigurement of the Georgia primary structure was de-vised to curb earlier abuses. In the last century when two parties vied for

political control in Georgia, the unit rule was the basis for apportioning dele-gates to the state convention. After the rise of the direct primary, the unitplan was dropped in favor of a popular vote basis for nominations. ButThomas E. Watson, the former Populist leader, mistrusted the popular voteof city counties because he had been the victim of gross frauds in the votingof Augusta Negroes in the 'nineties. Watson led the fight to restore ruralascendency by reviving the unit rule. See Lynwood Holland, The Direct Pri-mary in Georgia (Urbana, 1949), pp. 44-46, 67-68, and C. Vann Woodward,Tom Watson (New York, 1938), pp. 392-393. Cf., Albert B. Saye, "Georgia'sCounty Unit System of Elections," JOURNALOFPOLITICS,XII (January, 1950),93-106.

In 1917, the system, which had existed only in the rules of the StateDemocratic Party, was enacted in statutory form. The act, including the run-off provision (see footnote 67), was prompted as a reform in order to preventdefeat, via manipulation of the party convention, of the plurality winner inthe primary. Letter of Charles J. Bloch, May 7, 1956. See Macon Telegraph,August 21-September 3, 1916.



1959] RESTRICTIONSON NEGROSU1FRAGE:IN GEORGIA 509

unit votes, trailed his chief opponent, James V. Carmichael, by six-

teen thousand popular votes in the State.69 Carmichael received

the bulk of Negro support (about ninety-five percent of their bal-

lots),70 but his candidacy suffered from a split in anti-Talmadge

factional ranks. The motives behind the candidacy of E. D. Rivers,

the other anti-Talmadge candidate, need not be impugned,.but the

Atlanta Constitution charged that some financial interests supported

him heavily in order to benefit Talmadge.71 A. L. Henson, a biogra-

pher of the latter, has described with perception and candor how

essential split opposition has been to a minority champion like

Talmadge. In Georgia, says Henson, or in any state with a countyunit system, the function of the third candidate is to "siphon off"

enough votes in each county to permit a candidate with a perman-

ent following to win the all-important pluralities.72

But more than the split was requiredto protect white suprema-

cy in 1946. Talmadge survived the danger of a run-off against a

single foe by thirty-seven unit votes. The challenge-purgewon him

at least eight unit votes; the "slow-down"won six unit votes; other

methods of barring Negroes from the ballots won at least ten unitvotes. The support of local bosses and courthouse crowds secured

some additional thirty unit votes.73

The demise of the moderate forces after 1946 testifies eloquently

to the ubiquitous influence of the unit rule. Since 1954, the he-

gemony of racial extremists has gone unchallenged in the political

sphere, and there have been no important candidacies capable of

articulating the political aspirations of Negroes or of whites of

moderate persuasion. The absence of dissent in the state Demo-

cratic Party is in marked contrast to the vigorous bi-factionalismwhich existed a decade ago.74 Under the enlightened Arnall ad-

"9Georgia Official and Statistical Register, 1945-1950, Department ofArchives and History, Atlanta, 1951, pp. 490-493.

70The estimate is based upon examination of precinct election returns inevery county.

7"Atlanta Constitution, July 7, 1946.72A. L. Henson, Red Galluses (Boston, 1945), pp. 237-238.7"SeeJoseph Bernd, "A Study of Primary Elections in Georgia, 1946-1954,"

unpublished doctoral dissertation, Duke University, (1957) pp. 93-115.

7"Cf., Key, op. cit., pp. 106-129; see especially "Rural Hegemony and theCounty Unit System," pp. 117-124; Cullen Gosnel1, "Gerrymander System inGeorgia," Social Forces, XI (May, 1933), pp. 570-573; Lynwood M. Holland,"The County Unit System in Georgia," Emory University Quarterly, II (De-cember, 1946), 197-205; Orville A. Park, Georgia Political System (Atlanta,



510 THE JOURNAL 0? POLITICS [Vol. 21

ministration, Georgia made rapid strides and was numbered in

racial affairs, among the improving southern states, along with

North Carolina,Texas and Florida. But the reaffirmationof tradi-

tional mores, decisively abetted at the ballot box by the unit rule,

altered the balance of power, and the more recent trend has more

in accord with the predominant racial views found in Alabama,

South Carolina, Mississippi and Louisiana.

Not the least of the advantages of the unit rule, to those who

profit by it, is that the most obvious effect of its discrimination

is upon a geographical and not a racial basis, thus diminishing its

vulnerability to legal attack. Although the Supreme Court hasnever accepted jurisdiction in a case involving the plan, a per curiam

opinion, relying upon Colegrove v. Green, stated ". . . Federal

Courts consistently refuse to exercise their equity powers in cases

posing political issues arising from a state's geographicaldistribution

of electoral strength among its political subdivisions."75

In a vigorous dissent, Justice Douglas (joined by Justice Black)

observed:

I suppose that if a State reduced the vote of Negroes, Catholics, orJews so that each got only one-tenth of a vote, we would strike the lawdown. . . Yet there is evidence in this case showing that Georgia'sCounty Unit System of consolidating votes in primary elections makesan equally invidious discrimination....

Population figures show that there is a heavy Negro population inthe large cities. There is testimony in the record that only in thoseareas have Negroes been able to vote in important numbers. Yet the

County Unit System heavily disenfranchises that urban Negro popula-tion. The County Unit System has indeed been called the "last loophole"around our decisions holding that there must be no discrimination be-

cause of race in primary as well as in general elections.76

Supporters of the unit rule, on the other hand, point to the

opinion of Justice Frankfurter in Colegrovev. Green: "Courts ought

not to enter this political thicket. The remedy for unfairness in

districting is to secure State legislatures that will apportion prop-

erly, or to invoke the ample powers of Congress."77

1938); Albert B. Saye, "'The County Unit Vote," The Georgia Review, IV

(Spring, 1950), 16-24; Tarleton Collier, "Georgia, Paradise of Oligarchy," inRobert S. Allen (ed.), Our Sovereign State (New York, 1949).""South v. Peters, 339 U.S. 276 (1950)."Ibid.,pp. 277-278."Colegrove v. Green, 328 U. S. 549, 556. Quoted with approval in Harts-

field v. Bell, civil, #6385, Northern District of Georgia (1958).



19591 RESTRICTIONS ON NEGRO SU1oFRAGE:IN GEORGIA 511

The unit plan, say its advocates, breaks up political machines

at the county line and protects the state against the radical ele-

ments which flourish in cities. They point to the frauds committed

in Augusta before the turn of the century.78

These arguments are based on rather insubstantial assumptions.

The Georgia legislature is about as likely to change the unit system

as it is to endorse integration. The argument against city machines

ignores the fact that the two most recent city machines in Georgia

(in Augusta and Savannah), now defunct, supported the unit sys-

tem and used its sundry advantages for purposes prejudicial to

Negro voting rights. Regarding the alleged radicalism in Atlanta,even if city dwellers were worse citizens than their country cousins,a doubtful hypothesis, the unit system is hardly the answer to their

influence. The truth is that the real purpose of the rule is, and al-

ways has been, to discriminate, and the structure is admirablysuited to achieve it.79

But how may the scheme be abolished? The latest suit, chal-

lenging its validity, was filed by Mayor William B. Hartsfield of

Atlanta in 1958. After an adverse ruling in the district court, the

Mayor asked for leave to file a petition for a writ of mandamus to

convene a three judge court to hear his complaint. By a single vote

the U. S. Supreme Court denied the motion. Justices Black, Bren-nan, Douglas and Chief Justice Warren dissented.80

In his dissenting opinion in the South case, Justice Douglas sug-

gested that the unit rule violates the Seventeenth Amendment,pro-

viding for popular election of United States Senators. The Seven-

teenth Amendment right extends, he said, "to the primary where

"8SeeStatesman,October23, 30, 1952.79Seeplaintiff'sbrief in Wood v. Gosnell,adverselydecidedin Floyd Coun-

ty SuperiorCourt (1950). Otherattacks on the unit rule have been Turmanv. Duckworth,68 F. Supp. 744, and Cook v. Fortson,68 F. Supp. 624 (1946);Cox v. Peters, 342 U.S. 936. See also 67 S.E. (2d) 579, 585 and 208 Ga.498, 506.

80Hartsfieldv. Bell, op. cit. While continuing to championthe unit rule,SenatorHermanTalmadge, joined by SenatorRichardRussell,recentlycalledfor revisionto increasethe influenceof the more populouscounties.Talmadgenoted the shift of population away from rural counties and toward city

counties,and he

speculatedthat the retirementof Harold Burton and theelevation of Potter Stewart to the U. S. Supreme Court might mean amajority of justices hostile to the continued existence of the unit plan.Former Governor Ellis Arnall spoke out for abolition of the county unitsystem. MaconNews, April2 and 9, 1959.




remain relatively impotent on the statewide level. Any threat to

this status quo would probably precipitate reaction in the form of

legal, and perhaps extra-legal, devices aimed at continued denial of

Negro ballot power. The federal power in this sphere, obviously, is

merely negative. A United States court cannot administer the

processes of the franchise; it may only correct; and the corrective

power is arduous, time-consumingand imperfect. In the courts wit-

nesses are often recalcitrant and juries are especially reluctant to

convict whites accused of crimes aimed at persons of color. Most

rural Negroes are politically passive and susceptible to control by

local white leaders.The county unit system remains the paramount weapon in the

denial of equal protection. To a minority of the U. S. Supreme

Court the racial effect of the system is obvious, but the Court's

majority has declined on procedural grounds to weigh the sub-

stantative question. The county unit rule poses "political issues,"

said the majority, arising from the State's "geographicaldistribution

of electoral strength among its political subdivisions." A long-

recognized rule of equity distinguishes "political rights," constitu-

tionally protected, from "political questions," or "issues," but the

doctrine was enunciated in a case involving racial discrimination

which was direct, rather than indirect.82 The federal judiciary has

struck down several plans which accomplished indirect racial dis-

crimination in "state action" primaries.83 The Supreme Court has

said that therightXto Nbtt w udes the right to have the vote count-

ed,84 counted without dilution or discount.85 This Court has said

that the Fifteenth Amendment "nullifies sophisticated as well as

simple-mindedmodes of discrimination. It hits onerous proceduralrequirementswhich effectively handicap exercise of the franchise by

the colored race although the abstract right to vote may remain

unrestrictedas to race."86 But how "sophisticated"must discrimi-

nation be to avoid this ban? Does the Constitution allow racial

discrimination and dilution of votes by means of a State's "geo-

graphical distribution of electoral strength?"

82Justice Holmes in Nixon v. Herndon, 273 U.S. 536, 540 (1927).

83As used here, "direct" racial discrimination includes the "white primary.""Indirect" discrimination means schemes like the grandfather clause, registra-tion techniques, the "private club," and the party oath. The distinction maybe more formal than real.

84United States v. Classic, op. cit."5United States v. Saylor, 322 U. S. 385 (1944).86Lane v. Wilson, 307 U.S. 268, 275 (1939).

the case of georgia

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