Facts of the Case:
James P. Wesberry, Jr. filed a suit against the Governor of Georgia, Carl E. Sanders, protesting the state's apportionment
scheme. The Fifth Congressional District, of which Wesberry was a member, had a population two to three times larger than
some of the other districts in the state. Wesberry claimed this system diluted his right to vote compared to other Georgia
Did Georgia's congressional districts violate the Fourteenth Amendment or deprive citizens of the full benefit of their
right to vote?
The Court held that Georgia's apportionment scheme grossly discriminated against voters in the Fifth Congressional District.
Because a single congressman had to represent two to three times as many people as were represented by congressmen in other
districts, the Georgia statute contracted the value of some votes and expanded the value of others. The Court recognized that
"no right is more precious" than that of having a voice in elections and held that "[t]o say that a vote is
worth more in one district than in another would not only run counter to our fundamental ideas of democratic government, it
would cast aside the principle of a House of Representatives elected 'by the People. . .'"
RECENT CITATIONS & MENTIONS
"[JUSTICE] Black's opinion in Wesberry v. Sanders reestablished him as a champion for individual worth, as he parsed
the writings of James Madison on the Bill of Rights and proclaimed, "No right is more precious in a free country than
that of having a voice in the election of those who make the laws...Other rights, even the most basic, are illusory if the
right to vote is undermined."
The opinion by Justice Ruth Bader Ginsburg cites with approval Black's words from Wesberry v. Sanders, "While it
may not be possible to draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitutions
plain objective of making equal representation for equal numbers of people the fundamental goal...That is the high standard
of justice and common sense which the Founders set for us." --- The Observer, April 26, 2016
House districts and of rural overrepresentation in the chamber came to an end in the mid- to late 1960s.
These abrupt changes were the direct result of a historic decision by the Supreme Court in 1964. In Wesberry v. Sanders,
the Court held that the population differences among Georgia's congressional districts were so great as to violate the Constitution.
In reaching its landmark decision, the Supreme Court noted that Article I, Section 2 of the United States Constitution declares that representatives shall be chosen "by the People of the several States" and shall be "apportioned
among the several States...according to their respective Numbers...." These words, the Court held, mean that "as nearly as
practicable one man's vote in a congressional election is to be worth as much as another's."
Wesberry and the Court's later "one person, one vote" decisions had an extraordinary impact
on the makeup of the House, on the content of public policy, and on electoral politics in general. The nation's cities and
suburbs now speak with a much larger voice in Congress than ever before. However, it is quite possible to draw any district
lines in accord with the "one person, one vote" rule and, at the same time, to gerrymander them.
In its 1964 ruling inWesberry v. Sanders —a
suit pursued by a group of Fulton Countyvoters against Georgia officials, including GovernorCarl Sanders—the U.S. Supreme Court built on its previous ruling inGray v. Sanders(1963) to hold that all federal congressional districts within each state
had to be made up of a roughly equal number of voters. In so ruling, the Court radically altered how state legislatures would
thereafter draw congressional districts, which beforeWesberryoften
reflected long-established groupings of counties that ignored intervening urbanization and other major shifts in population.
Within four months ofWesberry,
the Court ruled in its most famous reapportionment case,Reynolds v. Sims(1964), out of Alabama, that the U.S. Constitution required the equal valuation of
votes in virtually all elections for officials from legislatively drawn districts, including representatives who served in
either chamber of any state legislature. As a result, the Court scuttled the legislative electoral systems of most states,
including often-used "little federalism" systems that structured districts for one house of the state legislature according
to geography, rather than population, in keeping with the model of the Constitution's treatment of the U.S. Senate.
The reapportionment decisions of Chief Justice Earl Warren's court, beginning
dramatically reshaped the nature of representative government in Georgia and in the nation. No less important, the principle
of electoral equality that underlies these decisions has continued to generate important rulings in more recent times—most
prominently the Supreme Court's controversial decision inBush v. Gore, which brought an end to the high-profile legal
challenges triggered by the presidential election of 2000.
As of February 2015 there were about 21,900 references to Wesberry
v. Sanders on the Internet.
In 1964...the U.S. Supreme Court, in Wesberry v. Sanders, ruled that congressional districts must be as equal in population
as possible. This decision was the first instance in which the Court had applied the principle of "one person, one vote"on
a nationwide basis. Making this ruling by a 6 to 3 vote, the Court overturned the 1962 ruling by the Atlanta federal court
which had upheld Georgia's congressional redistricting law. The majority based its decision on the portion of the U.S. Constitution
(Article 1, Section 2) which requires representatives to be apportioned among the states by population and chosen
by the people of those states. According to the majority, "We do not believe that the Framers of the Constitution
intended to permit...vote-diluting discrimination to be accomplished through the device of districts containing widely varied
numbers of inhabitants. To say that a vote is worth more in one district than in another would not only run counter to our
fundamental ideas of government, it would cast aside the principle of a House 'elected by the people', a principle tenaciously
fought for and established at the Constitutional Convention." In dissenting, Justice Harlan (who had also dissented
in Baker v. Carr) stated that the U.S. Constitution did not mandate population to be the sole criterion of congressional districting,
while Justice Stewart claimed that the Constitution did not require that districts be nearly as equal as possible in population.
Several states undertook that year to make their congressional districts, if not equal in size, at least somewhat closer
to equal than in previous years. Georgia legislators approved a new plan for the state's 10 congressional districts that gave
increased representation to the Atlanta region and under which the greatest variation from the average district size of 394,312
was 16 percent.2
----- Excerpted from "Drawing the Map: Redistricting in the South," Southern Legislative Conference of The Council
of State Governments, August, 2000.
Once I opened my own CPA practice in Atlanta I joined and became very active in the Atlanta Junior
Chamber of Commerce (Atlanta Jaycees). This soon led to service in the Georgia
and the United States Jaycees. Eventually I became State Governmental Affairs Chairman of the Georgia Jaycees and after that
served for two years as National Governmental Affairs Chairman of the United States Jaycees. The
Jaycees is an organization that believes in leadership development through community service. One of my major objectives was
to encourage the young men in the Jaycees to take a real interest in the workings of government.
The Jaycees had a number of programs already in place and I added several more including a newsletter
and an annual governmental affairs conference both at the state and national levels. I was anxious to also encourage young
man to seek and serve in public office and strive to make government better.
One day while attending a National Jaycee Board of Directors meeting in Tulsa, Oklahoma I was talking
with a member of the board from Buffalo New York who had been president of the Jaycee chapter there. He told me about an activity
that the Buffalo Jaycees had carried out in which their local chapter board of directors actually went to court as plaintiff
seeking some sort of local government betterment and they won the case. This was quite a new idea to me which would never
have occurred except through that particular conversation. I thought it was a great idea that could be carried out by other
Jaycee organizations. Over the next few weeks I began thinking about how the Jaycees could be used to strengthen government
as activists in litigation, but of course this was a rather unusual and little travelled area. It took a while to come up
with a possibility.
Around that time the United States Supreme Court decided the landmark case in state legislative apportionment, Baker v. Carr. As soon as I read
about it light bulb went off in my head undoubtedly triggered but my years of service as a Page in the US House of Representatives.
I immediately became convinced that if the Supreme Court had decided to get into the controversy over legislative malapportionment,
it would be absolutely bound to also consider the companion and even more important area of Congressional malapportionment.
At that time the Atlanta metropolitan area consisting
of three counties made up the second largest Congressional District in the United States comprised of over 800,000 citizens.
The smallest Congressional District in Georgia included only about 270,000 citizens. Each elected one congressman. The average district at that time was composed of about 400,000 citizens. Clearly Atlanta deserved two Congressional
seats instead of one.
This disproportion of representation was the most glaring in the US except for one other Congressional
District located in Dallas, Texas. As a result the citizens of Atlanta were deprived of one of the two congressional representatives
that they merited based upon the Constitution of the United States which provided that congressional districts should be apportioned
based on the national census carried out every 10 years. This constitutional requirement had been ignored by the United States
Supreme Court over many years. In all previous cases brought before the lower courts and appealed to the Supreme Court it
had declined consideration based upon the criteria of separation of powers, not wishing to enter a controversy with the Congress
that naturally preferred the status quo.
My plan was for the board of directors of the Atlanta Junior Chamber of Commerce to act as plaintiff
in a class-action suit to be filed first before the District Court that would eventually reach the Supreme Court requesting
that Atlanta be granted the two congressmen it deserved.In other words that
the congressional districts of Georgia be fairly apportioned as the court had ordered in the case of legislative districts
in Tennessee in the case of Baker Carr.
Because I had moved on to national Jaycee service, after several years’
board membership I had dropped off the Board of Directors of the Atlanta Jaycees. I needed a lawyer and a board member so
I talked to Frank Cash who was a young personable lawyer also very active in the Jaycees and a member of the board. Frank
thought it was a good idea and advised me that we could bring a class action lawsuit with the Atlanta Jaycee board as plaintiffs
along with any other individual members of the Atlanta Jaycees that also might want to be included as plaintiffs.
At this point I had never considered that my name would be involved with the case. Had our plan been
carried out of the plaintiff would have been the Atlanta Jaycee Board of Directors plus any individual members of the Atlanta
Jaycees who also wanted to join in and be co-plaintiffs in the litigation. It never occurred to me that any alternative might
be forthcoming because I was sure the Atlanta Jaycee Board would be enthusiastic about this great opportunity to serve the
citizens of Atlanta. Meanwhile Frank had recruited another young lawyer with a brilliant law school record to work with him
in developing the case. He was Emmett Bondurant now a very distinguished Atlanta lawyer, and
he became the brains of the litigation team while Frank was the activist counsel who made all the arrangements. From that
point on my role was limited to simply being a bystander who had the idea of bringing the litigation. Once Emmett and Frank
had prepared the basic case Frank took it before the Board of Directors of the Atlanta Jaycees to be approved by it. We were
so certain of approval of such a great opportunity to improve the Congressional representation of our city that I did not
even attend the board meeting that evening.
Early the next morning Frank telephoned me in my office to give me the astoundingly bad news that
the board had rejected the idea of being plaintiffs in the lawsuit. This was totally unexpected by all of us and we were simply
dumbfounded or at least I was. I talked to Frank again later that day after thinking about our situation asked his opinion
on how we might find some alternative course of action. I asked if he thought I could personally appeal before the board to
reconsider. He was certain that I could not change their minds as the opposition was simply overwhelming. We had been so naively
confident of the attractiveness of our cause that we had done no preliminary individual discussions with board members.
Frank said we simply had no possible chance of board approval because several young lawyers with
prominent law firms had ardently opposed getting the Jaycees in a law suit. My feeling was and still is that those stuffed
shirt lawyers were jealous that Frank was a young unknown sole practitioner of the law, not an Atlanta blue blood like themselves.
It was a lesson I will never forget. Frank said we could still go forward with an individual as plaintiff. But he said we
needed at least two for it to be a class action suit. He suggested that I be the principal plaintiff and he came up with another
person, Candler Crim, who had previously expressed great interest in the case.
I had not known Candler previously and I do not believe he was a member of the Jaycees. At any rate
we were extremely anxious to move forward and the lawyers had everything ready to go so Candler and I authorized them to bring
the suit on our behalf. I was the principal plaintiff and Candler was the second. As a result my name went down in history.
Strangely enough the principal plaintiff's name is published widely while the other plaintiffs end up being anonymous to the
As expected we lost the case before the three-judge District Court, Tribunal. As is the
practice in constitutional litigation, we were able to immediately appeal it directly to the United States Supreme Court.
But then two problems arose.It would cost about $3,000 for the printing of the
legal papers and other costs and neither Frank nor Emmett was qualified to practice before the nation’s Supreme Court.
A lawyer must be 35 years of age to be eligible. In fact all four of us, the two plaintiffs
and the two lawyers were well under 30 years of age. Frank solved both problems by talking to De Jongh Franklin, a past President
of the Atlanta Jaycees and an attorney who was licensed to appear before the Supreme Court.De Jongh not only agreed to represent us before the court along with Frank and Emmett but found some wealthy civic
spirited Atlantans who covered our costs. De Jongh, later an early supporter of Jimmy Carter for President, went to the White
House with him as liaison with the business community.
Actually Emmett Bondurant delivered the principal arguments before the Court and he deserves
the most credit for our ultimate victory.Had it not been for the enthusiastic
and indefatigable work of Frank Cash we could have never have even gotten to the first stage of the litigation. And it was
only with De Jongh Franklin’s invaluable help that we got to the Supreme Court. As is, I suppose, the case in most
historic cases, the plaintiffs played a very minor role.
I had been absolutely positive from the very beginning that we would prevail and when
the case finally came before the United States Supreme Court we did. The rest is history. If you “Google” the case you will come up with
over 20,000 citations as it has been referenced in hundreds of subsequent cases at all levels, including cases in other countries.
The truth is we really had our eyes fixed upon getting two Congressional seats for Atlanta
instead of one and we did not really think a lot about the landmark ramifications of our case until after it was decided and
became the model for all subsequent similar cases as well as many others involving voter rights.
I was sorely disappointed that it became impossible to have the Atlanta Jaycee Board get the credit
as plaintiff and thus set an example for others Jaycee chapters to follow. The second edition of the Jaycee-based book Young Men Can Change the World used
the case as an example. To some degree I was able through my own later service as US Junior Chamber of Commerce National Treasurer
and National Vice President while at the same time serving as Georgia State Senator to encourage Jaycees to be activists in
Friday, Feb. 28, 1964
Redrawing the Lines
THE SUPREME COURT
Rarely has a Supreme Court decision caused such swift, tumultuous reaction. Late
one night last week, the gavel pounded and pounded again in the Georgia state house of representatives. Dozens of lawmakers
were shouting: "Mistuh Speakuh! Mistuh Speakuh!" The clock was fast approaching midnight on Feb. 21, the hour and day of statutory
adjournment of the Georgia legislature. But adjournment was out of the question. At stake was the necessity of readjusting
Georgia's outrageously malapportioned U.S. congressional districts.
Now it was 11:50 p.m. — and the Speaker ordered that the clock be stopped,
a tried-and-true parliamentary move. Opponents of redistricting were in a frenzy. Macon's Representative Denmark Groover had
a hasty thought: if there is no clock, it can't be stopped.
He raced up to the gallery, swung over the balcony, and holding onto the parapet
with an arm and a leg, reached over, pulled the official clock from its place on the wall and sent it crashing to the floor.
There, others cracked and smashed it. But proponents were rushing the bill to completion, and by 12:11 a.m., it had passed.
"Mistuh Speakuh!" cried Chattooga County's James Floyd in desperation, "I think the tactics used here are unconstitutional,
Communist, and everything else — and I don't like it worth a damn!" But he was on the losing side.
Unfair on the Face. The wild Georgia scene was the direct result of a milestone
Supreme Court decision handed down only four days before. The court was dealing with a Georgia case, Wesberry v. Sanders.
The plaintiffs were residents of Georgia's Fifth District — which includes Atlanta and, until the legislative action
that came later in the week, had a population of 823,680.
That was more than 108% above the 394,312-person average of Georgia's ten districts.
The plaintiffs' case rested on the plain and simple fact that their votes for Congressmen did not count on a par with those
of Georgians in other districts.
Similar — or worse — disparities exist in congressional districts throughout
the U.S. Republican John B. Bennett represents 177,431 people from the Upper Peninsula Twelfth District of Michigan, which
he calls the nation's "smallest" and, less accurately, "the most important." Republican Bruce Alger represents 951,527 people
in and around Dallas; his Fifth Congressional District of Texas is the nation's most populous. Yet both Bennett and Alger
have one vote apiece in the House of Representatives. Such variations mean that voters in overpopulated districts are underrepresented
in the House, and vice versa. This, on the face of it, seems unfair.
The Principle. The Supreme Court's decision on the Georgia case not only agreed
that it is unfair, but that it is unconstitutional as well. Justice Hugo Black, writing for the six-member majority, composed
of Chief Justice Warren, Justices Douglas, Brennan, Goldberg and White, said: "We hold that, construed in its historical context,
the command of Article I, Section 2, that Representatives be chosen 'by the people of the several states,' means that as nearly
as is practicable one man's vote in a congressional election is to be worth as much as another's." Black found that it was
the intent of the Founding Fathers that all congressional districts within a state be more or less equal in population. "To
say that a vote is worth more in one district than in another would not only run counter to our fundamental ideas of democratic
government; it would cast aside the principle of a House of Representatives elected 'by the people,' a principle tenaciously
fought for and established at the Constitutional Convention."
In a blistering, 29-page dissent, Justice John Marshall Harlan (with Justices Clark
and Stewart writing separate dissents) argued that Black was dead wrong. "I had not expected to witness the day," he wrote,
"when the Supreme Court of the United States would render a decision which casts grave doubt on the constitutionality of the
composition of the House of Representatives." He pointed out that Article I, Section 4 of the Constitution says: "The times,
places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature
thereof; but the Congress may at any time by law make or alter such regulations." Moreover, Article I, Section 5 says: "Each
House shall be the judge of the elections, returns and qualifications of its own members." Harlan recalled that in 1872 Congress
passed a law requiring that Representatives be elected from districts of nearly equal populations. But that law was dropped,
almost unnoticed, in 1929 —and the man mostly responsible for its disappearance was Democratic Representative Sam Rayburn,
who came from one of the most sparsely populated congressional districts in the U.S., the Texas Fourth. Wrote Harlan: "It
cannot be contended, therefore, that the court's decision today fills a gap left by the Congress. On the contrary, the court
substitutes its own judgment for that of Congress." That much was certainly true. But obviously neither the Congress nor the
many state legislatures had fulfilled their constitutional duties, and their inaction led to the glaring inequities in representation
that the court now is trying to correct.
The Effects. Despite the bitter differences between the majority and minority opinions,
the decision curiously enough caused little immediate reaction —at least as far as the legalities were concerned. What
did arouse vast conjecture across the U.S. was the possible political effect.
It has become part of American political mythology that Republicans are strongest
in rural, underpopulated areas, while Democrats hold sway in urban, overpopulated places. According to that notion, Democrats
would stand to gain by an equalizing of congressional districts. But several studies indicate that the opposite is probably
true. In the 1962 elections, Republican candidates for the House won 48% of the national vote, but took only 40% of the seats.
If they had gained as high a percentage of the seats as they did of the vote, there would now be 209 Republican Congressmen
instead of 176.
Furthermore, any redistricting along the lines indicated by the Supreme Court would
almost certainly give more Representatives to Southern urban areas, where Republicans are strong, and take Representatives
away from rural areas, where reactionary, racist Democrats often rule. Thus Bruce Alger's Dallas district might be divided
into two or three, any or all of which could go Republican. Dallas is only one example of a heavily populated area where Republican
strength is high. Nationwide, out of 66 Congressional districts with populations of more than 500,000, the Republican party
currently holds 34 seats.
Greater representation would go to suburbia, where Republicans dominate.
For example, Connecticut's five congressional districts range in population from
318,942 to 689,555. Democrats control all but the Fourth, Fairfield County. Fairfield would be strengthened for the Republicans
if it were to lose some of the Democratic manufacturing towns along the district's northeast boundary. And the Second District,
most vulnerable to realignment, has sent Republicans to Congress in six of the past ten elections, so there is a good chance
that the G.O.P. would benefit from a change there.
Advantage Lost. Last week's Supreme Court decision did not set forth a specific
percentage figure for fair representation, but 15% above or below the state's district norm is generally considered the benchmark
figure. Altogether there are 33 states in which districts fall outside that standard. Even before the court rendered its decision,
suits similar to the one in Georgia were pending in Texas and Maryland. Close on the heels of the decision, Maryland's Governor
J. Millard Tawes asked for a postponement of the state's May 19 house primaries in the hope that a special legislative committee
would be able to redraw some notably inequitable district lines.
Georgia's Governor Carl Sanders, on the other hand, did not bother to wait, called
on his legislature to act, almost within the hour—and the midnight riot ensued.
Before the clock was stopped, stomped on and smashed, Georgia's Fifth District,
a three-county area embracing Atlanta, was the second most populous in the nation. The Ninth, on the other extreme, comprised
272,154 people. State legislators from the rural districts naturally preferred to keep things that way since it gave their
sparsely populated areas a tremendous voting advantage over Atlanta. As a result of the redistricting, the Atlanta area was
divided into two districts, each with its own Congressman. The rest of the state map was redrawn so as to provide districts
of near-equal size. The upshot of Georgia's lightning reapportionment: the ten districts now range in population from 329,738
and of rural overrepresentation in the chamber came to an end in the mid- to late 1960s. These abrupt changes were the direct
result of a historic decision by the Supreme Court in 1964. InWesberry v. Sanders, the Court held that the population differences among Georgia's congressional districts
were so great as to violate the Constitution.
In reaching its landmark
decision, the Supreme Court noted that Article I, Section 2 of theUnited
States Constitutiondeclares that representatives shall be chosen "by the People of the several States" and shall be "apportioned among
the several States...according to their respective Numbers...." These words, the Court held, mean that "as nearly as practicable
one man's vote in a congressional election is to be worth as much as another's."
the Court's later "one person, one vote" decisions had an extraordinary impact on the makeup of the House, on the content
of public policy, and on electoral politics in general. The nation's cities and suburbs now speak with a much larger voice
in Congress than ever before. However, it is quite possible to draw any district lines in accord with the "one person, one
vote" rule and, at the same time, togerrymanderthem.
This case was originally brought in U.S. District Court and was denominated:
James P. Wesberry, Jr. and Candler
versus S. Ernest Vandiver and Ben W. Fortson
Whenever you find you
are on the side of the majority, it is time to pause and reflect
--- Mark Twain
We have never observed
a great civilization with a population as old as the United States will have in the twenty-first century; we have never observed
a great civilization that is as secular as we are apparently going to become; and we have had only half a century of experience
with advanced welfare states...Charles Murray
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