Sculpture of Moses with Ten Commandments

On US Supreme Court Building in Washington

Click here for WESBERRY v SANDERS ORAL ARGUMENT (audio)

	How the Landmark Case Wesberry v. Sanders (376US1) Came About   By James P. Wesberry, Jr.   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 public.   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 government. 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 to 455,575. http://www.time.com/time/magazine/article/0,9171,873809,00.html     Wesberry v. Sanders   Supreme Court of the United States Argued November 18, 1963 Decided February 17, 1964 Full case name: James P. Wesberry, Jr. et al. v. Carl E. Sanders et al.     Citations: 376 U.S. 1; 84 S.Ct. 526; 11 L.Ed.2d 481     Prior history: 206 F. Supp. 276 (N.D. Ga. 1962), prob. juris. noted, 374 U.S. 802 (1963).       Holding The Constitution requires that members of the House of Representatives be selected by districts composed, as nearly as is practicable, of equal population. Court membership Chief Justice: Earl Warren Associate Justices: Hugo Black, William O. Douglas, Tom C. Clark, John Marshall Harlan II, William J. Brennan, Potter Stewart,Byron White, Arthur Joseph Goldberg Case opinions Majority by: Black Joined by: Warren, Douglas, Brennan, White, Goldberg Concurrence/dissent by: Clark Dissent by: Harlan Dissent by: Stewart Laws applied U.S. Const., art. I, § 2.    ++++                         A case involving congressional districts in the state of Georgia, brought before the Supreme Court of the United States. The Court issued a ruling onFebruary 17, 1964 that districts have to be approximately equal in population.  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.

	This case was originally brought in U.S. District Court and was denominated:  James P. Wesberry, Jr. and Candler Crim, Jr. versus S. Ernest Vandiver and Ben W. Fortson (Wesberry v Vandiver) Click here to go to US District Court June 20, 1962 opinion denying injunction.

Video: Gerrymandering Explained

Door panel at US Supreme Court

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

	Kella

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