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Constitutional Law -- Legislative Election of a Governor Richard J NORTH CAROLINA LAW REVIEW Volume 46 | Number 1 Article 14 12-1-1967 Constitutional Law -- Legislative Election of a Governor Richard J. Bryan Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Richard J. Bryan, Constitutional Law -- Legislative Election of a Governor, 46 N.C. L. Rev. 128 (1967). Available at: http://scholarship.law.unc.edu/nclr/vol46/iss1/14 This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. NORTH CAROLINA LAW REVIEW [Vol. 46 cern to many political and industrial factions, is that regulations at the local level should tend to deter "big brother," be it the state or federal government, from imposing its own influence and solutions on the local scene. WLLIAM H. THOMPSON Constitutional Law-Legislative Election of a Governor When the "one man, one vote" principle first arose in a case concerning the county unit system in Georgia,' the question asked was how far it would be extended. The answer came quickly in two historic decisions. The Court ordered that congressional dis- tricts be approximately equal in population,' and that both houses of state legislatures be apportioned on the basis of population.' Yet these decisions raised more questions concerning what limita- tions the Court would put on the "one man, one vote" maxim. These questions were partially answered in Fortson v. Morris,4 where the Court, with a vigorous dissent, did put a limitation on the applicability of the "one man, one vote" concept,5 refusing to use it to prevent the legislative election of a governor in which the winning candidate might have been (and, in fact, eventually was) the loser at the polls. The case arose out of the 1966 race for Governor of Georgia. Democrat segregationist Lester Maddox contested with conserva- 'Gray v. Sanders, 372 U.S. 368, 381 (1963) : "The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing-one person, one vote." 'Wesberry v. Sanders, 376 U.S. 1 (1964). 'Reynolds v. Sims, 377 U.S. 533 (1964). '385 U.S. 231 (1966). 'Since Fortson v. Morris the Supreme Court has limited further the application of "one man, one vote." In Sailors v. Bd. of Educ., 387 U.S. 105 (1967), aff'g 254 F. Supp. 17 (W.D. Mich. 1966), the Court held that "one man, one vote" was not applicable to the selection of a county school board because the choice was not by an elective process, no election being required because the offices were nonlegislative. In Dusch v. Davis, 387 U.S. 112 (1967), rev'g 361 F.2d 495 (4th Cir. 1966), the Court refused to apply "one man, one vote" to the at-large election of a city council, where there was a requirement that the members reside in certain boroughs. The Court, however, did not reach the merits of applying "one man, one vote" to local governments in these cases, or in Moody v. Flowers and Supeivisors of Suffolk County v. Bianchi, 387 U.S. 97 (1967), dismissed on jurisdic- tional grounds. 19671 ELECTION OF A GOVERNOR tive Republican Howard "Bo" Callaway. Mainly as a protest move, a write-in campaign was launched for Ellis Arnall, a former gover- nor, and a man of more liberal persuasions. The votes received by Arnall were enough to prevent either Callaway or Maddox from obtaining a majority.' This result invoked a section of the Georgia Constitution' which provides that if no candidate receives a ma- jority the General Assembly shall choose among the two candidates receiving the highest number of votes, regardless of which one had a plurality. The right of the Georgia legislature to make this choice was challenged in federal district court. In Morris v. Fortson8 the legis- lature was enjoined from selecting the governor, the court relying heavily on Gray v. Sanders' and reasoning as follows: This [allowing the legislature to choose a candidate who did not receive a plurality] would give greater weight to the votes of those citizens who voted for this candidate and necessarily dilute the votes of those citizens who cast their ballots for the candidate receiving the greater number of votes. The will of the greater number may be ignored. In addition each legislator would stand as a unit in selecting the Governor, and his vote would neces- sarily eliminate the will of his constituents who voted for the other candidate. 10 The Court in Fortson v. Morris reversed, by a 5-4 decision, the district court's holding, saying tersely: "There is no provision of the United States Constitution or any of its amendments which either expressly or impliedly dictates the method a State must use to select ' Howard H. Callaway-449,894 or 47.07%; Lester G. Maddox--448,044 or 46.88%; Ellis G. Arnall-57,832 or 6.05%. GA. CONST. art. V, § 1, para. 4: The members of each branch of the General Assembly shall convene in the Representative Hall, and the President of the Senate and Speaker of the House of Representatives shall open and publish the returns in the presence and under the direction of the General Assembly; and the person having the majority of the whole number of votes, shall be de- clared duly elected Governor of this State; but, if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately elect a Governor viva voce; and in all cases of elec- tion of a Governor by the General Assembly, a majority of the mem- hers present shall be necessary for a choice. 8262 F. Supp. 93 (N.D. Ga. 1966). 8372 U.S. 368 (1963). 10262 F. Supp. 93, 95 (N.D. Ga. 1966). NORTH CAROLINA LAW REVIEW [Vol, 4 its governor."'" The dissent, composed of the "liberal" faction of the Court,'2 rested their rationale upon two major points: (1) A malapportioned legislature, such as the Georgia legislature, 18 should not be permitted to choose a governor; (2) In any case, a legislative choice of governor, after the popular will has made a choice, 14 is in violation of the equal protection clause of the fourteenth amendment, 11385 U.S. at 234. 12The Chief Justice, and Justices Brennan, Douglas, and Fortas. But Justice Black, normally a "liberal," joined with the "conservatives"-Justices Clark, Harlan, Stewart, and White-and wrote the majority opinion. " See Toombs v. Fortson, 205 F. Supp. 248 (N.D. Ga. 1962). 1 In a separate dissenting opinion, Justice Fortas, joined by the Chief Justice and Justice Douglas (but not Justice Brennan), went even further, casting doubt on whether a legislature could elect its governor in any cir- cumstance: Moreover, the Court today announces in an offhand manner, as a side effect of today's decision, without adequate argument or consideration, that a State may today, as some States did long ago, provide that its Governor shall be selected by its legislature in total disregard of the voters. I do not believe that the issue is so easy. 385 U.S. at 246-47. Justice Fortas does not say precisely on what basis such a system would be unconstitutional, whether due process, equal protection, or guarantee of a republican form of government (long recognized by the Court as being a political matter). In Sweezy v. New Hampshire, 354 U.S. 234, 255 (1957), Chief Justice Warren stated: "Moreover, this Court has held that the con- cept of separation of powers embodied in the United States Constitution is not mandatory in state governments. ." (see also Dreyer v. Illinois, 187 U.S. 71, 83-84 (1902)). If, therefore, it would be permissible for a state not to have an independent and separate executive, it is difficult to see how the manner in which a state chooses a governor becomes a constitutional issue, unless it violates some explicit constitutional mandate (e.g. not per- mitting Negroes to vote for governor). Furthermore, even though all states now elect their governor by popular vote (at least initially), Fortas's dictum is more than an academic nicety. How would such a viewpoint affect the generally successful and progressive city manager forms of urban govern- ment (in which the city's top executive is not chosen by the people), if, for instance, New York City, which has a larger budget than New York State, chose to adopt such a system? Would not whatever rights Justice Fortas thinks would be denied the people of New York State, if not permitted to choose their governor, be equally denied to the eight million residents of New York City if not permitted to choose their de facto mayor? Justice Fortas also develops a rather clumsy analogy by discussing a hypothetical situation where the governor selects the legislature, which he assumes, no one would deny is unconstitutional. But consider the language in Willis v. Blue, 263 F. Supp. 965, 969 (N.D. Ga. 1967), citing the prin- ciple case: "There is no federal requirement intended to compel a state to elect any of its officers or agents through the popular vote of the people. So long as the method does not constitute an inreasonable delegation of power, it is sufficient." Few would deny that permitting a governor to select a legislature would be an "unreasonable delegation," i.e.
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