Southern Political Science Association

Recent Restrictions Upon Negro Suffrage: The Case of Georgia

Author(s): Joseph L. Bernd and Lynwood M. Holland
Source: The Journal of Politics, Vol. 21, No. 3 (Aug., 1959), pp. 487-513
Published by: Cambridge University Press on behalf of the Southern Political Science Association
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 RECENT RESTRICTIONSUPON NEGRO
SUFFRAGE:THE CASE OF GEORGIA*
JOSEPHL. BERND AND LYNWOOD M. HOLLAND
High Point College and Emory University

D URING THE DECADEAND A HALF which has elapsed since the in-
validation of the white primary by the U. S. Supreme Court,'
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
Congress and the activities of the Civil Rights Commission and 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 Negro
citizens the equal protection of the laws. An assumption is 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 Negro
suffrage and 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 'rulingwhich voided the
white primary in Georgia. When the state administration and the
*Grateful acknowledgmentis made for a research grant from the Social
Science Research Council, which permitted investigation in every county in
Georgia,and for the valuable counsel of ProfessorRobert S. Rankin of Duke
University.
'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 supporters among 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 code
provided 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 qualifications were examined.5
To encouragethe use of this device for challenging registrants the
headquarters of Talmadge mailed hundreds of mimeographedchal-
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 the
forms alleged that the persons challenged lacked all of the re-
quirements for voting mentioned in the State Constitution. In point
of 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 and
write, or (2) "good character and an understanding of the duties
and 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 because
of physical disability.
1959] RESTRICTIONS ON NEGRO SUFFRAGE: IN GEORGIA 489

nal registration procedures 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 understanding had already been applied (in the original
act 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
procedures which 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 discriminatory purging and res-
toration of the names of Negro registrants to 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 many
registrarsseemed 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 challenged persons 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; and
Atlanta Daily World, July 12-19, 1946.
"0See Brown 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 be
represented 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 exceptionally
difficult. 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 official processes are to be multiplied beyond the
point of reasonableness or convenience. That boards of registrars,
lacking in representative personnel, chose to re-examine individually
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 "prima facie evidence of the right of the person whose
name appears thereon to vote."
"The hearings were conducted under the most severe time pressures.
Registration ended 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 argument concerning the 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, but
is granted to their mere will. 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 arbitrary
and 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 understanding of the
duties and obligations of citizenship. . ..
Federal decisions after 1946 show that the courts are determined
to 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 Alabama case, Davis v. Schnell, in which the registration devices
in the Boswell Amendment were voided:
preparethe lists for use. Since the primary election was to be held July 17,
the registrarshad a legal minimumof one day to purge the lists. See Georgia
Laws, 1944 (special session), 2-8. In actual practice the tax collectors trans-
mitted the lists to the registrarsfor purging soon after July 5, or before the
expiration of 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. Martin
et. al., 1 Race Relations Law Reporter,213 (1956).
492 THE JOURNALOF POLITICS [Vol. 21

The words "understand and explain" do not provide a reasonable

standard. A simple test may be given one applicant; a long, tedious,
complex one to another; one applicant may be examined on one article
of the Constitution; another may be called upon to "understand and
explain" every article and provision of the entire instrument.
To state it plainly, the sole test is: Has the applicant by oral
examination or otherwise understood and explained the Constitution to
the satisfaction of the particular board? To state it more plainly, the
board has the right to reject one applicant and accept another, depending
solely upon whether it likes or dislikes the understanding and explanation
offered. . . . The board has the power to establish two classes, those to
whom 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 purges

inhered from the silence of the law, while the powers in the Yick Wo
and 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 evil
eye and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to
their rights, the denial of equal justice is still within the prohibition of
the Constitution.18

Between 1948 and 1954 white supremacy forces dominated

Georgia without resort to the purge weapon. In 1954 the technique
reappearedas a by-product of the competition between local factions
in Randolph County (in Southwest Georgia). One faction had
offered 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 from
the registration rolls by the registrars, some of the colored voters
initiated 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 thirty
factual 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 process
before 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.
1959] RESTRICTIONS ON NEGRO SUFFRAGE: IN GEORGIA 493

been asked to "explain" constitutional provisions. The United States

District Judge directed a verdict against the defendants, and a
jury assessed the amount of the monetary damages. Ruling that the
case involved a class action, the judge ordered the names of more
than one hundred persons, illegally purged, to be restored to the
ists.20
Although the decision had applied a serious check to the purge
device, especially through its damage and class action features, its
state-wide influence was short-lived. In 1956 the names of Negroes
were removed from registration rolls in Pierce County under
conditions of local factionalism, similar to those which had existed
in Randolph County. But in Pierce County the registrars were
careful to follow the letter of the Georgia law. Several hundred
names were stricken from the voting rolls, but the registrars left a
few names of Negroes, including school teachers and others of
superior education, on the list. A few whites were summoned along
with 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 face
disqualification without a hearing, the court saw no infirmities in
these procedures.21
The result in the Pierce County case suggests that Negro
voters can be successfully purged (1) as long as officials follow the
letter of the Georgia law and (2) as long as the level of Negro
educational attainments remains low. Despite rapid economic strides
and improved educational opportunities, the inferior position of
Negroes will likely prevent relief from these conditions in rural
areas for the foreseeable future. Negroes of superior education and
ability are leaving these areas, and those who remain find it difficult
to challenge their traditional racial status.
The challenge-purgedevice, on the other hand, may have already
served its purpose in Georgia. The scheme was an essential stop-gap
measure in securing the all-important county pluralities in 1946.
Since that time, its importance has 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).
494 THE JOURNAL OF POLITICS [Vol. 21

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. King
pointed the way. The white primary in Georgia had 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 District
Judge 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 to
one 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 noted
the failure of the District Court to examine the questions of fact which were
raised in the complaint, and it found apparent admission by defendant registrar
that the provision for publication of notice of the challenge and hearing and
the time interval specified in the law of Louisiana had not been properly
followed.
The decision of the district judge is important for the dicta. While the
judge dismissed the suit on technical grounds, he observed that discrimination
was evident in the timing of the challenges, which were filed just prior to an
election when books were closed for re-registration. He suggested that the law
ought to forbid challenges during a thirty day period immediately prior to
an election. He also speculated that the challengers lacked specific knowledge
as 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.
19591 RESTRICTIONS
ON NEGROSUFFRAGE:
IN GEORGIA 495

an integral part of the election machinery of the State.23 The

white primary bill, passed by the General Assembly in 1947, re-
pealed all statutes linking the party primary with the State, as
indicated by the rather elaborate title of the bill:
An act to revise the election laws and to repeal all laws or parts of
laws providing the method and manner of holding primary elections
by any political party . . . by striking all sections in which any
referenceis made to primary elections and rewriting the same leaving
out such referencesto primaryelections,so as to completelydivorce the
State of Georgiafrom having anything to do in any manner,shape, or
form, with the holding of primary elections....24
The bill was vetoed by Acting GovernorM. E. Thompson, whom
the State Supreme Court had upheld in the case of the disputed
succession which followed the death of Eugene Talmadge. Thomp-
son said the bill was an invitation to fraud, and he questioned its
legality.25 When Herman Talmadge became Governorin November,
1948, complete disenfranchisement of Negroes in the primary no
longer seemed possible. In South Carolina the effort to divorce the
primary from all legal connection with the State was doomed by the
federal court in Elmore v. Rice.26 The "private club" nomination
was still tantamount to election when the name of the Democratic
nominee was placed on the general election ballot by the action of
the State. Still unwilling to obey the mandate of the court, South
Carolina Democrats began to require of each voter in the primary
a party oath, pledging support for segregation and states rights
and opposing a Federal F.E.P.C. law. The plan was so patently a
sham that many counties in the Piedmont section of the State
disregarded it. The district court invalidated the oath in Brown v.
Baskin.27
With the white primary evidently dead, attention turned again
to the use of the literacy test28 as a vehicle for keeping persons of
2"Chapman v. King, op. cit. Cf., Smith v. Allwright, 321 U.S. 649 (1944)
and United States v. Classic, 313 U.S. 299 (1941).
"4Reported in Key, op. cit., p. 636.
25Atlanta Constitution, March 21, 1947.
26Elmore v. Rice, 72 F. Supp. 516 (1947).
27Brown v. Baskin, 78 F. Supp. 933 (1948). For details of the South
Carolina doings, see Key, op. cit., pp. 627-633.
28Georgia, like most Southern States, enacted a comprehensive set of regis-
tration requirements, including literacy, near the turn of the century. See Key.
op. cit., pp. 533-554. Cf., Dewey W. Grantham, Jr., Hoke Smith and the
Politics of the New South (Baton Rouge, 1958), pp. 158-162.
496 THE JOURNAL OF POLITICS [Vol. 21

color away from the "white folks' ballot boxes."29 But just before
the Georgia General Assembly 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 evaluating
the 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 voters
were afraid to submit to examination under its terms. Others re-
sented the necessity of standing a test before being permitted to
retain 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, the
Talmadge administration secured from the General Assembly in
1950 an amendment to the law.32 Voters registered under the old
provisions would remain eligible 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 Court
ruled that the law was valid and non-discriminatoryon its face,33
but a 1955 survey by the Bureau of Public Administration of the
University of Georgia revealed that scarcely a single county was
conducting 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 padded
lists of white voters were an invitation to fraud which was some-
times accepted. Lack of funds for efficient personnel 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).
1959] RESTRICTIONS ON NEGRO SUFFRAGE: IN GEORGIA 497

enforcement of the law. Officialsapplied the law haphazardly or not

at all in registering voters. Some invented their own procedures,
and the habitual practices continued while statutes were ignored.
White registration totals, distended by duplications and the linger-
ing names of those who had died or moved away, exceeded the adult
white population in more than thirty counties.34
Despite the dominance of white supremacists, accompanied by
the collapse of the anti-Talmadge faction in 1954, sentiment slowly
developed for changing the registration laws again. In 1957 the
General Assembly authorized an Election Laws Study Committee to
consider revision.35 There were several reasons for this action. The
survey by the Bureau of Public Administration indicated a need
for some kind of corrective, chiefly of an administrative nature.
Concern over the Negro was probably a more effective stimulus.
A bill, aimed primarily at racial discrimination in suffrage process-
es, was pending in the Congress, and the passage of some kind of
civil rights act seemed likely despite the threat of a filibuster by
some Southern Senators.
The NAACP had inaugurated a drive for voter registration, and
the number of persons of color eligible for the' franchise was rising
throughout the South.36 Few citizens had sought to register on the
basis of the objective questions test in the 1949 law, but the tech-
nique offered interesting possibilities for barring Negroes from
voting in legally sound procedures. Objective tests, fairly admin-
istered, appeared safe from condemnation by federal judges. The
rational basis for the white man's rule is the argument that the
intellectually and morally deficient are unfit to enjoy 'the "privilege"
of the franchise.37 The Georgia law already applied a mental test
and disenfranchised persons convicted of crimes involving "moral
turpitude."Why not strengthen those devices? Cursory inspection of
census data furnishes meaningful clues to the policy ultimately
34Olive H. Shadgett, Voter Registrationin Georgia (Athens, 1955), passim.
Cf., Key, op. cit., pp. 555-577; MargaretPrice, The Negro Voter in the South
(Atlanta, 1957), pp. 1, 5, 8, 19-20.
3"Georgia Laws, 1957, I, 257-260.
"By 1958 Negro registration in the eleven Southern States had risen to
1,266,488. In 1947 registration stood at 595,000. In Georgia the Negro registra-
tion in 1958 was 158,051. Southern Regional Council, The Negro Voter in the
South (1958), p. 3.
"7An objective presentation of this thesis as it pertains to school segrega-
tion, but with implications for the franchise, is Thomas R. Waring, "The
Southern Case Against Desegregation," Harper's CCXII (January, 1956), 39-45.
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 difficulty to tax the learning of
any well-educated person. The new test asks for the qualifications of
a representative to the General Assembly, for a description of the
amendment provisions of the United States Constitution, how the
writ 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 require additional information and 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 registrars had no authority to apply questions in addition
to those prescribed in 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 by
statute. Another section of the act grants a "blank check" dis-
cretion of a similar nature:
"8United States 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 charged
with the duty of examining from time to time the qualifications of each
elector whose name is entered upon the list of qualified voters, and
shall 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 evident
aim, 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.47
Other 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.
"Georgia Laws, 1958, I, 293-294.
7AtlantaJournal and 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 South
contains 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 members of 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 troublesome in 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?51
An 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 widespread and spectacular evidence 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 Savannah and Augusta, Negroes were challenged and
questioned as they appeared at the polls. The aim was to delay the
voting. 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 been
customary 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., 297
U.S. 288, 346 (1936), analyzes some of the legal rules which would inhibit a
complaint of this kind.
"2SavannahMorning News, July 18, 1946; Augusta Herald, September8,
1948.
"3The scheme of abusing assistance to voters has been employed regularly
to control votes in Philadelphia. Pennsylvaniz Law Review, CVI (December
1957). 279-291.
502 THE JOURNAL OF POLITICS [Vol. 21

The most widely prevalent technique for preventing Negroes

from voting, or for controlling their ballots if they do go to the
polls, has been intimidation in one form or another. Intimidation
is, obviously, a broad term and may encompass a variety of prac-
tices from verbal threats to outright violence. Cross-burnings by
the Ku Klux Klan, the posting of written threats in the Negro
community, 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 forms
of intimidation after 1948 and the disappearanceof the "slowdown"
scheme have been encouraging signs in Georgia, but it should be
noted that these trends, like the decline in the use of the challenge-
purge, have been achieved through the stabilization of white rule.
Among Negroes, increasing apathy has been evident after the initial
enthusiasm of 1946 subsided. If Negro use of the franchise should
once more appear to menace white dominance, reaction, including
resort 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 Negro
suffrage. Despite the dominance of the white supremacy forces on
the statewide level, Negroes, in alliance with white factions, hold
local power in the city counties and in some rural counties where
alliances with county officials, usually including the sheriff, have
been achieved. Under these conditions the opposition of white su-
premacy forces has been increasingly strenuous, but there is little
evidence of systematic intimidation, possibly because important of-
ficials are hostile to such methods.
The failure of the Department of Justice to prosecute in cases
of ballot manipulation and intimidation may evoke the righteous
indignation 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 Dan
Duke 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 of
homicide, 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; Sparta Ismaelite, 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 perpetrators of violence, for
instance, the government could not proceed against individuals but
was required to prove "conspiracy."55 Two examples illustrate the
twin problems posed by vague statutes, narrowly interpreted by 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 publicized Walton County lynching of four
Negroes in 1946, the Department of Justice and the FBI exerted
the 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 Supreme Court ordered a 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,"
discrimination of 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 troublesome problem 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 harmony with 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 Government
in 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.
504 THE JOURNAL OF POLITICS [Vol. 21

It is clear that under "color"of law means under "pretense"of law.

Thus acts of officers in the ambit of their personalpursuits are plainly
excluded.Acts of officers who undertaketo perform their official duties
are includedwhether they hew to the line of authority or overstep it.58

But the requirement of "willfulness" has continued to cause

%trudie. Yiow is t'te proven? -No court-has ever offered a definitive
answer. No attorney has produced a thoroughly sound solution.
Efforts to solve the dilemma have usually involved the resort to
citation of words or actions purporting to indicate a motive to
deprive one of a civil right. But the most clever violations are like-
ly to be perpetrated by persons who conceal their motive behind a
rigorous application of the forms of state law. Another method of
attempting to demonstrate "willfulness" is the resort to num-
bers. In some cases only Negroes have been challenged and purged;
in some cases only Negroes have been denied registration. But, as
has been shown, the most effective efforts to prevent Negro voting
may be coupled with the disenfranchisement of a few whites, thus
skillfully disguising the racial factor in the action. The evidence
in totality shows that anti-discrimination cases may not be won
unless they involve excessively vague or illegal state statutes, or
actions by state officers in violation of state law, linked with the
singling out of the Negro class and often accompanied by an ad-
mission of a purpose to discriminate.59
The rule that deprivations of a federal right must be "willful,"
or "purposeful," was expected to "relieve the statute of the ob-
jection that it punishes without warning an offense of which the
accused was unaware." How was this vagueness to be obviated,
said Justice Douglas? It must be shown that there is a purpose to
deprive the victim of a right "made specific either by the express
terms of the Constitution or laws of the United States or by deci-
sions interpreting them."60
"8Screwsv. United States, op. cit., p. 111.
"9Except in cases of "conspiracy" not involving state officers. In a case
arising in Illinois and not posing any racial feature, a United States Circuit
Court of Appeals ruled that in prosecution for conspiracy under 18 USCA
241 the government "did not have the burden of proving that defendants had
specific intent to injure . . . citizens," when the casting of fraudulent ballots
was involved. United States v. Nathan, 238 F. (2d) 401 (1957).
'0Screws v. United States, op. cit., pp. 102, 104. In Crews v. United States.
160 F. (2d) 746 (1947), a circuit court tried to clear the air. A Florida officer
had inflicted a prolonged beating on a Negro prisoner who drowned after he
jumped into a river to escape. Claiming to have been motivated solely by
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 registrars pass 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
distinguish the rights "made specific?" 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 to
1957. The civil rights statutes passed after the Civil War suffered
from a number of 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 approach to 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 criminal prosecutions will occur only when officialsprove
obdurate. Thus a major aspect of the plan is its educational pur-
pose. The Civil Rights Commission created by the Act furthers this
educational purpose and also functions as a research agency for
studying the problems of enforcement.
The Act also broadens the scope of protection, banning individual
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 deprive
the victim of his civil rights. The court said an officer could consistently
hold both motives, and the conviction of Crews was upheld.
"1Davis v. Schnell, op. cit., p. 878.
"2See Carr, op. cit., pp. 56-190.
506 THE JOURNAL OF POLITICS [Vol. 21

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 requirement that 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 of
Congress 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 subpoena pow-
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 applaud what
they regard as a return to the spirit and the intent of the drafters
8371 Stat. 634 (1957). Cf., Thomas R. Winquist, "Civil Rights," Michigan
Law 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 of
Justice under the 1957 Act charged discriminatoryregistration practices in
Terrell County, Georgia.Negroes, including several who hold college degrees,
were denied the right to register for voting. Holding that Congressexceeded
its constitutional powers in authorizing the Attorney General to seek an
injunction aimed at the action of a private individual in a state election, the
U. S. District Judge invalidated a major section of the Act. Although the
case was clearly one involving "state action" by officials acting "under color
of law," Judge Davis ruled that the parts of the Act were inseparable,and he
declined 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 Chattahoochee County 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.

Justice has appealedto the U. S. SupremeCourt. U. S. v. Raines, civil, #442,

Middle District of Georgia, April 16, 1959; see also Law Week, XXVII
(April 21, 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 passage of the Civil Rights Acts of the eighteen-
seventies which prohibited private discrimination when upheld by state
policy. See citations at page 647.
"In Mississippia county unit plan exists for counting votes in the general
election. The system has been of small importancebecause the primary is the
decisive contest in Mississippi. In Maryland primaries are determined on a
county unit basis somewhat similar,but less severely discriminatory,than that
of Georgia. In Maryland,however, the ultimate decision between the two na-
tional parties is determinedby popular vote in the general election. Virginia
Wood Hughes, "The County Unit Vote in Maryland, Mississippiand Georgia
Elections,"The Georgia Review, V (Fall, 1951), 354-361.
"7Thesystem counts the whole vote of a county for the candidate who
receives a plurality of the popular vote within the county. Gubernatorialand
senatorial contests are determinedby majority of unit votes; other statewide
races require a plurality of unit votes. If no candidate wins a majority of
unit votes in gubernatorialand senatorial races, a run-off is held. Except in
one congressionaldistrict, the unit system determinesthe nomination in con-
gressionalprimaries.
The 410 unit votes of the state are distributedas follows with each county
having two unit votes for each memberof the State House of Representatives:
The eight most populous counties each have six unit votes; the thirty next
most populous counties each have four unit votes; the remainingone hundred
and twenty-one counties each have two unit votes. Georgia Code of 1933,
34-3213.
508 THE JOURNALOF POLITICS [Vol. 21
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
compartmentalizationof the electorate. When white rule is safe in
a county, officials may display a scrupulous regard for the integrity
of the ballot; when that rule is in jeopardy, the devices mentioned
above offer a choice of weapons. Crudities like the legislative act
in 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 techniques
of control. Since the county plurality, however small, is translated
into 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 the
winner.
A case study of the 1946 gubernatorialprimary election discloses
the 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 unit
plan was dropped in favor of a popular vote basis for nominations. But
Thomas E. Watson, the former Populist leader, mistrusted the popular vote
of city counties because he had been the victim of gross frauds in the voting
of Augusta Negroes in the 'nineties. Watson led the fight to restore rural
ascendency 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's
County Unit System of Elections," JOURNAL OF POLITICS, XII (January, 1950),
93-106.
In 1917, the system, which had existed only in the rules of the State
Democratic Party, was enacted in statutory form. The act, including the run-
off provision (see footnote 67), was prompted as a reform in order to prevent
defeat, via manipulation of the party convention, of the plurality winner in
the primary. Letter of Charles J. Bloch, May 7, 1956. See Macon Telegraph,
August 21-September 3, 1916.
1959] ON NEGROSU1FRAGE:IN GEORGIA
RESTRICTIONS 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 county
unit 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 required to 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 unit
votes. 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-factionalism
which existed a decade ago.74 Under the enlightened Arnall ad-
"9Georgia Official and Statistical Register, 1945-1950, Department of
Archives and History, Atlanta, 1951, pp. 490-493.
70The estimate is based upon examination of precinct election returns in
every county.
7"Atlanta Constitution, July 7, 1946.
72A. L. Henson, Red Galluses (Boston, 1945), pp. 237-238.
7"See Joseph 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 the
County Unit System," pp. 117-124; Cullen Gosnel1, "Gerrymander System in
Georgia," 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 has
never 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 geographical distribution
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, or
Jews so that each got only one-tenth of a vote, we would strike the law
down. . . Yet there is evidence in this case showing that Georgia's
County Unit System of consolidating votes in primary elections makes
an equally invidious discrimination....
Population figures show that there is a heavy Negro population in
the large cities. There is testimony in the record that only in those
areas 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 Frankfurterin Colegrove v. 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," in
Robert 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 approvalin 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 admirably
suited 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). Other attacks on the unit rule have been Turman
v. 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 champion the unit rule,
Senator Herman Talmadge,joined by Senator Richard Russell, recently called
for revision to increasethe influenceof the more populous counties. Talmadge
noted the shift of population away from rural counties and toward city
counties, and he speculated that the retirement of Harold Burton and the
elevation of Potter Stewart to the U. S. Supreme Court might mean a
majority of justices hostile to the continued existence of the unit plan.
Former Governor Ellis Arnall spoke out for abolition of the county unit
system. Macon News, April 2 and 9, 1959.
512 THE JOURNAL OF POLITICS [Vol. 21

that election is an integral part of the procedure" of choice.81 En-

couraged by the belief that the federal judiciary is gaining an in-
creasing understandingof the racial impact of the unit plan, its foes
may seek its invalidation through a stronger reliance upon the
Seventeenth Amendment, as well as the equal protection provision
of the Fourteenth Amendment. Meanwhile, congressional clarifica-
tion of the equity jurisdiction of the federal courts could require
the unconvinced members of the Court to hear the case on its
merits.
SUMMARY

Conclusions regarding the suffrage obstacles and recommended

reforms, herein discussed, may be summarized briefly. Negroes,
especially those of low educational status, have been denied regis-
tration or have been purged on the basis of literacy requirements,
but recent precedents established by courts and new statutory tools,
made available in 1957, mean that state officers may suffer federal
correction unless they hew to the line of laws affording objective
testing standards. The Civil Rights Act of 1957, if upheld, offers an
opportunity for an educational approach to the problems of equal
protection. The Civil Rights Commission and the Department of
Justice may attempt to secure compliance by means of investigations
and injunctions, a combination of firmness and persuasion, reserving
criminal prosecutions as a last resort. This compliance principle may
be extended to bar preferred treatment of white persons, as well
as to prevent discrimination or intimidation of Negroes. The edu-
cational remedies are exceptionally valuable in informing state of-
ficials as to what constitutes a denial of a constitutional right and
in giving an ample warning. The statute thus achieves, in a superi-
or procedure, the aims of the vague and self-defeating criterion of
"purposefulness,"which has severely handicapped federal action in
the past.
Despite these advances, however, and despite the decline in the
use of obstructionist tactics after the peak years, 1946-1948, other
aspects of the equal protection problem in Georgia are far from en-
couraging. The philosophy of white supremacy remains politically
dominant and state policy is devoted to its preservation. Although
Negro voters share political influence in a number of localities, they
8"Southv. Peters, op. cit., p. 279. Douglas applied the same reasoningin
pointing to Article I. Paragraph2 of the Constitution,providing that mem-
bers of the House of Representativesshall be "chosen"by the people.
1959] RESTRICTIONS ON NEGRO SUFFRAGE: IN GEORGIA 513

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-consuming and 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 the rightXto 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-minded modes of discrimination. It hits onerous procedural
requirementswhich effectively handicap exercise of the franchise by
the colored race although the abstract right to vote may remain
unrestricted as 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 may
be 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).