1. Smith, Christopher E., Courts and Public Policy (Chicago, 1993).Google Scholar

2. See the absence of references to studies of reapportionment in Kammen, Michael, ed., The Past Before Us: Contemporary Historical Writing in the United States (Ithaca, N.Y., 1980)Google Scholar, and Boles, John B. and Nolen, Evelyn Thomas, eds., Interpreting Southern History (Baton Rouge, 1987)Google Scholar. Studies by respected historians whose subject matter make a discussion of reapportionment relevant (but which ignore the subject) include Matusow, Allen J., The Unraveling America: A History of Liberalism in the 1960s (New York, 1984)Google Scholar, and Bartley, Numan V., The New South, 1945–1980 (Baton Rouge, 1995)Google Scholar, and only perfunctory references are to be found in Grantham, Dewey W., The South in Modern America: A Region at Odds (New York, 1994), 308Google Scholar, and Patterson, James T., Grand Expectations: The United States, 1945–1974 (New York, 1996), 565Google Scholar. Historians have deferred to legal scholars and political scientists, such as McKay, Robert B., Reapportionment (New York, 1965)Google Scholar; Baker, Gordon, The Reapportionment Revolution (New York, 1966)Google Scholar; Dixon, Robert G. Jr., Democratic Representation: Reapportionment in Law and Politics (New York, 1968)Google Scholar; Cortner, Robert C., The Reapportionment Cases (Knoxville, 1970)Google Scholar; Polsby, Nelson W., ed., Reapportionment in the 1970s (Berkeley and Los Angeles, 1971)Google Scholar; O'Rourke, Timothy D., The Impact of Reapportionment (New Brunswick, 1978)Google Scholar, and Baker, Gordon E., “Whatever Happened to the Reapportionment Revolution in the United States?” in Grofman, Bernard and Lijphart, Arend, eds., Electoral Laws and Their Political Consequences (New York, 1986), 257–276.Google Scholar

3. See, for example, the essays in Davidson, Chandler, ed., Minority Vote Dilution (Washington, D.C., 1984)Google Scholar, and Davidson, Chandler and Grofman, Bernard, eds., Quiet Revolution the South: The Impact of the Voting Rights Act, 1965–1990 (Princeton, 1994)Google Scholar, and the books by Lawson, Steven F., In Pursuit of Power: Southern Blacks and Electoral Politics, 1965–1982 (New York, 1985)Google Scholar; Parker, Frank R., Black Votes Count: Political Empowerment in Mississippi after 1965 (Chapel Hill, 1990)CrossRefGoogle Scholar; and Kousser, J. Morgan, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction (Chapel Hill, 1999)Google Scholar. Much historical research on this issue appears in law reviews: Derfner, Armand, “Racial Discrimination and the Right to Vote,” Vanderbilt Law Review 26 (1973): 523–584Google Scholar; McCrary, Peyton, “Discriminatory Intent: The Continuing Relevance of ‘Purpose’ Evidence in Vote-Dilution Lawsuits,” Howard Law Journal 28 (1985): 463–493Google Scholar; idem, “Yes, But What Have They Done to Black People Lately? The Role Historical Evidence in the Virginia School Board Case,” Chicago-Kent Law Review 70, no. 3 (1994): 1275–305; McCrary, and Hebert, J. Gerald, “Keeping the Courts Honest: The Role of Historians as Expert Witnesses in Southern Voting Rights Cases,” Southern University Law Review 16 (1989): 101–128Google Scholar; Kousser, J. Morgan, “How to Determine Intent: Lessons from L.A.,” Journal of Law and Politics 7 (1991): 591–732.Google Scholar

4. Dixon, Democratic Representation, 456. Dixon argued (460–64) that simple-minded focus on mathematical equality by the Court could make matters worse to the degree that multimember districts were used to dilute minority voting strength, and he defined the term gerrymandering to include the use of at-large elections (or multimember districts).

5. Jewell, Malcolm E. and Patterson, Samuel C., The Legislative Process in the United States (New York, 1966), 66–67, 23–24Google Scholar. See also Jewell, Malcolm E., “State Legislatures in Southern Politics,” in Leiserson, Avery, ed., The American South in the 1960's (New York, 1964), 177–196Google Scholar, and Jewell, , Legislative Representation in the Contemporary South (Durham, 1967), 128–130.Google Scholar

6. The redistricting experience discussed here was part of the evidence considered in two recent voting rights lawsuits. See Peyton McCrary, “Declaration,” 25 March 1991, Ex. F to U.S. Memorandum in Opposition to Summary Judgement, State of Georgia v. U.S., C.A. No. 90–2065 (D.D.C.), a challenge to the at-large election of certain trial court judges in Georgia; Steven F. Lawson, “Declaration,” 25 September 1995, Brooks v. Miller, C.A. No. 1:90-CV-1001 (N.D. Ga.), a challenge to the use of a runoff requirement in state and local elections in Georgia. In addition, Kousser, J. Morgan discussed some of the same issues in his “Declaration,” 30 09 1994Google Scholar, in State of Georgia v. U.S., C.A. No. 90–2065 (D.D.C.), a revised version of which appears in Kousser, Colorblind Injustice, 197–242, 484–87. Much of the initial research for all three expert witness reports was conducted by staff members of the Voting Section, Civil Rights Division, U.S. Department of Justice, under the direction of Peyton McCrary. That research included a comprehensive examination of relevant manuscript and archival materials at the University of Georgia libraries, Emory University libraries, the Georgia Department of Archives and History, and the Lyndon B. Johnson Library, Austin, Texas. Had information pertinent to this case study been unearthed in these materials, it would have been reported in the following pages.

7. Gray v. Sanders, 203 F. Supp. 158 (N.D. Ga. 1962), aff'd 372 U.S. 368 (1963); Toombs v. Fortson, 205 F. Supp. 248 (N.D. Ga., 1962). A third suit challenging the apportionment of congressional districts, Wesberry v. Vandiver, 206 F.Supp. 276 (N.D. Ga. 1962), was initially dismissed; almost two years later the Supreme Court found in the plaintiffs' favor: Wesberry v. Sanders, 376 U.S. 1 (1964).

8. Laughlin McDonald, Michael B. Binford, and Ken Johnson, “Georgia,” in Davidson and Grofman, eds., Quiet Revolution in the South, 74–75, 411, briefly describes the process. The controversy over at-large elections in the senate redistricting plan is ignored in the recent authorized biography by Cook, James F., Carl Sanders: Spokesman of the New South (Macon, Ga., 1993)Google Scholar, and in standard accounts of Georgia politics in this period: Bernd, Joseph L., “Georgia: Static and Dynamic,” in Havard, William C., ed., The Changing Politics of the South (Baton Rouge, 1972), 294–365Google Scholar; Pyles, Charles, “S. Ernest Vandiver and the Politics of Change,” in Henderson, Harold P. and Roberts, Gary L., eds., Georgia Governors in an Age of Change: From Ellis Arnall to George Busbee (Athens, Ga., 1988), 143–156Google Scholar; and James F. Cook, “Carl Sanders and the Politics of the Future,” in ibid., 169–84.

9. Finch v. Gray, No. A 96441 (Fulton Co. Superior Court), 30 October 1962; Dorsey v. Fortson, 228 F. Supp. 259 (N.D. Ga., 1964), rev'd, 379 U.S. 433 (1965). The use of at-large elections in the 1962 senate redistricting plan was also challenged at one point in Toombs v. Fortson, C.A. No. 7883 (N.D. Ga.), Opinion, 19 October 1962: see Moore, Ginya C., “The Preservation of County Lines in Reapportioning the Georgia State Legislature” (M.A. thesis, Emory University, 1967), 56.Google Scholar

10. Few other states followed Georgia's example, however, in using a county unit system that used legislative malapportionment to distort the way votes were counted in the election of the governor and other state officers. Dixon, Democratic Representation, 85–88. Three other states, Maryland, Mississippi, and Tennessee, had used variations on the county unit system in the past. The Tennessee system was struck down by the state supreme court in Gates v. Long, 172 Tenn. 471, 113 S.W.2d 388 (1938). Rigdon, Louis T., Georgia's County Unit System (Decatur, Ga., 1961), 64–75Google Scholar. See Bondurant, Emmet J., “A Stream Polluted at Its Source: The Georgia County Unit System,” Journal of Public Law 12, no. 1 (1963), 86–121.Google Scholar

11. Colegrove v. Green, 328 U.S. 549, 556 (1946). On the same theory, the Court refused at that time to hear two challenges to Georgia's county unit system, Cook v. Fortson, 329 U.S. 675 (1946), and Turman v. Duckworth, 329 U.S. 675 (1946). Over the years it rejected three more such challenges: South v. Peters, 339 U.S. 276 (1950); Cox v. Peters, 342 U.S. 936 (1951); Hartsfield v. Sloan, 357 U.S. 916 (1957).

12. Gomillion v. Lightfoot, 364 U.S. 339 (1960). On the background of the case, see Cortner, The Apportionment Cases, 71–72, 84–88; Taper, Bernard, Gomillion versus Lightfoot (New York, 1962)Google Scholar; and Norrell, Robert J., Reaping the Whirlwind: The Civil Rights Movement in Tuskegee (New York, 1985), 79–80, 91–92, 101.Google Scholar

13. Gomillion v. Lightfoot, 364 U.S. 339, 346–47 (1960). “The inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights. That was not Colegrove v. Green.” Justice Whitaker concurred in the result, but would have found the de-annexation a violation of the equal-protection clause; Justice Douglas announced that he would have overruled Colegrove. 364 U.S. 339, 348–49.

14. Cortner, The Apportionment Cases, 88, 96.

15. Baker v. Carr, 369 U.S. 186 (1962).

16. Arthur L. Goldberg, quoted in Cortner, The Apportionment Cases, 158–59.

17. Reynolds v. Sims, 377 U.S. 533 (1964). See Dixon, Democratic Representation, 261–67, 288–89.

18. Gray v. Sanders, 372 U.S. 368 (1963). Also important was the plaintiffs' victory in the Georgia congressional redistricting case, Wesberry v. Sanders, 376 U.S. 1 (1964). On the two cases and their influence over the evolution of the case law, see Dixon, Democratic Representation, 172–95.

19. Sanders v. Gray, 203 F. Supp. 158 (N.D. Ga., 1962).

20. Legislative malapportionment was challenged in Toombs v. Fortson, 205 F. Supp. 248 (N.D. Ga., 1962), and congressional districting in Wesberry v. Vandiver, 206 F. Supp. 276 (N.D. Ga., 1962).

21. Bondurant, “A Stream Polluted at Its Source,” 89–90.

22. Bernd, “Georgia,” 297; Bondurant, “A Stream Polluted at Its Source,” 89–91. The federal courts ordinarily treat total population, rather than voting-age population or number of registered voters, as the basis for measuring compliance with the one-person, one-vote standard. National League of State Legislatures, Reapportionment Law: The 1990s (Washington, D.C., 1989), 12–13, 18, 21, 39.Google Scholar

23. This view is expressed in the Talmadge personal newspaper, published in Hapeville, Georgia, : “Who's Who Among Those Opposing Unit Amendment,” The Statesman, 26 10 1950, 1, 4Google Scholar. For similar views, see “Talmadge Announces for Governor, Guarantees Protections of County Unit System and White Primary,” in ibid., 11 April 1946, 1, 2; “Unit System Protects Whole State from Organized Blacks, Hand Says,” in ibid., 26 October 1950, 1, 2; and “Talmadge Lauds Unit Plan to Atlanta's Rotary Club,” in ibid., 29 May 1952, 1, 2. Quotations from some of these racially motivated defenses of the county unit system were reproduced in briefs filed by attorneys challenging the constitutionality of the county unit system in South v. Peters, 339 U.S. 276 (1950). Bondurant, “A Stream Polluted at Its Source,” 97n. Justices William O. Douglas and Hugo Black dissented from the decision not to hear this case, calling the county unit system “the last loophole around our decisions holding that there must be no discrimination because of race in primary as well as general elections.” 339 U.S. 276, 277–78 (1950). For a sound analysis of the connection between the county unit system and race, see Bernd, “Georgia,” 299, 315–23.

24. “Talmadge Doubts State Unit Plan Would Be Upheld by Supreme Court,” Macon Telegraph, 2 April 1962, 1.

25. Ibid.

26. “Sanders Calls for Special Session of Legislature,” Macon Telegraph, 8. Cook, Carl Sanders, 77–78, claims that Sanders was “unique” in advocating this position. As noted in the text above, Sanders's position was essentially the same as that previously announced by Talmadge, Griffin, and Attorney General Cook. It appears that the only legislators taking the position that the state should go so far as to jettison the county unit system because it could not successfully be defended in court were the members of the DeKalb County delegation, Senator Hugh McWhorter and Representatives James Mackay, Guy Rutland, and Pierre Howard. Pou, Charles and Shannon, Margaret, “Vandiver Orders Session to Study Unit, Apportioning,” Atlanta Journal, 5 04 1962, 1.Google Scholar

27. “County Unit System Defended by Sanders,” Macon News, 10 June 1960, 7. “Sanders added that the system is ‘Georgia's greatest protection for keeping representative government, maintaining conservative government and keeping liberals and radicals from taking over.’”

28. Cf. Key, V. O. Jr., Southern Politics in State and Nation (New York, 1949), 636, 648Google Scholar; Matthews, Donald R. and Prothro, James W., Negroes and the New Southern Politics (New York, 1966), 224–229Google Scholar; Watters, Pat and Cleghorn, Reese, Climbing Jacob's Ladder: The Arrival of Negroes in Southern Politics (New York, 1967), 79–81.Google Scholar

29. As Vandiver's biographer explains, the effort to resuscitate the county unit system was racially motivated: “This would be his last-ditch effort to fulfill his campaign promise to preserve the system which had helped sustain rural, and, thus, segregationist sentiments.” Pyles, “Vandiver,” 150.

30. “Federal Court Decision Strikes Down Georgia's Century-Old County Unit System,” Macon Telegraph, 29 April 1962, 1, 2.

31. Britton, Gene, “Vandiver Sees Chaos Unless State Adjusts Unit Votes, Apportionment,” Macon Telegraph, 17 04 1962, 1Google Scholar; “Legislature Receives 18 Proposals on Apportionment and Unit Votes,” in ibid., 18 April 1962, 1, and Gene Britton, “Vandiver Ends Senate Meet After New Unit Act Is Voted, in ibid., 28 April 1962, 1. Bondurant, “A Stream Polluted at Its Source,” 89–93, compares the original county unit apportionment with the revised plan.

32. Sanders v. Gray, 203 F.Supp. 158 (N.D. Ga. 1962).

33. A year later the Supreme Court ruled out that possibility. Gray v. Sanders, 372 U.S. 368, 371 (1963).

34. Toombs v. Fortson, 205 F. Supp. 248, 256–57 (N.D. Ga. 1962).

35. 205 F. Supp. 248, 250–51, 257 (N.D. Ga. 1962).

36. 205 F. Supp. 248, 258–59 (N.D. Ga. 1962). The court issued a specific order to this effect in September. Toombs v. Fortson, C.A. No. 7883 (N.D. Ga.), Opinion, 5 September 1962, cited in Moore, “The Preservation of County Lines,” 47–48. See, in addition, “Reapportion by Jan. 1 or Court Will Do the Job,” Atlanta Constitution, 6 September 1962, 1, 10; “Court Order May Bring Rural-Urban Battle and Special Election Here,” Macon Telegraph, 6 September 1962, 1.

37. Bass, Jack, Unlikely Heroes (New York, 1981), 20Google Scholar, 23–38, 110–11, 136–37, 270–71; Barrow, Deborah J. and Walker, Thomas G., A Court Divided: The Fifth Circuit Court of Appeals and the Politics of Judicial Reform (New Haven, 1988), 7, 12–14, 18, 141CrossRefGoogle Scholar; Martin, Charles H., The Angelo Herndon Case and Southern Justice (Baton Rouge, 1976), 142, 160–64, 211–12, 214–15Google Scholar.

38. “May Resign Demo Post, Gray Asserts,” Macon Telegraph, 29 April 1962, 1.

39. “Georgia Democrats Face Uncertainty After Ruling,” Macon Telegraph, 30 April 1962, 1.

40. “Reapportionment Ordered in 1 House Before ‘63 Session,” Americus Times-Recorder, 26 May 1962, 1, 6.

41. Hanes, O. P., “Popular Vote Basis Is Set for Primary,” Americus Times-Recorder, 4 05 1962, 1, 8Google Scholar; Shannon, Margaret, “Popular-Vote Plan Favored by Gray,” Atlanta Journal, 18 06 1962, 1, 8Google Scholar; “Primary Popular Vote Near Fact,” Americus Times-Recorder, 20 June 1962, 1, 6; “Won't Ask County Unit Stay, Governor Replies to Griffin,” Atlanta Constitution, 21 June 1962, 1, 14.

42. Murphy, Reg, “Vandiver Kills Griffin's Plan to Put Governor's Race on Plurality Basis,” Atlanta Constitution, 1 05 1962, 1, 8Google Scholar; Moore, C. E., “Sanders Asks Win by Majority,” Atlanta Journal, 8 05 1962, 2Google Scholar; “Primary Popular Vote Near Fact,” Americus Times-Recorder 20 June 1962, 1, 6; “Won't Ask County Unit Stay, Governor Replies to Griffin,” Atlanta Constitution, 21 June 1962, 1, 14; Pou, Charles, “Democrats Bury Unit, Embrace Popular Vote,” Atlanta Journal, 27 06 1962, 1, 11Google Scholar. On the leadership role played by Harris in the white citizens' council movement, see McMillen, Neil R., The Citizens' Council: Organized Resistance to the Second Reconstruction, 1954–1964 (1971), 82–83.Google Scholar

43. Bernd, “Georgia,” 332–36.

44. Cook, Carl Sanders, 42, 45–46, 49–51, 55–56, 59.

45. Black, Earl, Southern Governors and Civil Rights: Racial Segregation as a Campaign Issue in the Second Reconstruction (Cambridge, Mass., 1976), 13–14, 66–68.CrossRefGoogle Scholar

46. Bartley, Numan V., The Rise of Massive Resistance: Race and Politics in the South During the 1950's (Baton Rouge, 1969), 185, 219–20, 222, 278, 287Google Scholar; Bartley, The New South, 162, 249–50; Pyles, “Vandiver,” 146, 148; Cook, Carl Sanders, 53–56.

47. Sanders's biographer, James F. Cook, notes that “his political views were close enough to the mainstream of the General Assembly that the rank and file trusted his judgment and believed he would uphold southern traditions and the southern way of life.” As a result of growing up in the deep South, Cook adds, “Sanders naturally was imbued with the racial customs and values of his region. Augusta was a typical southern town, where white supremacy was taken for granted and the races were rigidly segregated.” Sanders attended all-white schools, lived in an all-white neighborhood, saw blacks only as menial workers, and had no black friends. “Yet unlike many of his contemporaries, he never developed a strong aversion to blacks,” although he “was comfortable with segregation.” Sanders now recalls “that he never harbored racial prejudice.” Cook, Carl Sanders, 56, 92.

48. Carl E. Sanders, Deposition, 28 September 1994, in State of Georgia v. Reno, C.A. No. 90–2065 (D.D.C.), 12. Ordinarily a deposition does not become part of the record in a case; in this instance, the parties agreed that this would become part of the record as a trial deposition. Attached to the deposition are various segregationist statutes and resolutions, including the antibarratry provision, Act N. 910, Georgia Laws, 1960, 1135–37, supported by Sanders during the Vandiver administration.

49. Cook, Carl Sanders, 67–72.

50. Sanders, Deposition, 28 September 1994, in State of Georgia v. Reno, C.A. No. 90–2065 (D.D.C.), 12–13, 22, 25.

51. Not surprisingly, Andrew Young, then one of Dr. King's chief aides, recalls that while Marvin Griffin was clearly the chief enemy of civil rights, “we figured that Carl Sanders wasn't going to do much good for us either.” Andrew Young, Oral History Interview, p. 4, Lyndon B. Johnson Library, Austin, Texas.

52. Black, Southern Governors, 14–15, 177–81.

53. Quoted in Cook Carl Sanders, 93.

54. Sanders also attracted more traditional political leaders such as state highway director Jim Gillis, and county organizations in many of the state's metropolitan areas, whose voting strength would now be properly reflected in the outcome. Cook, Carl Sanders, 89–91; Bernd, “Georgia,” 332–33.

55. Bernd, “Georgia,” 335–36, believes, however, that “there is a strong likelihood that knowledge of the fact that the decision would be based on the popular vote rather than on county-unit votes produced a self-fulfilling prophecy in the sense that the knowledge that ballots of city-dwellers would count at full strength encouraged city voters and discouraged their country cousins from casting ballots.”

56. Based on calculations from data in Bernd, “Georgia,” 335 (table 1). The eleven counties are those containing a city of at least 25,000 according to the 1960 census.

57. Bartley, Numan V., From Thurmond to Wallace: Political Tendencies in Georgia, 1948–1968 (Baltimore, 1970), 27–29, 47–55.Google Scholar

58. Bernd, Joseph L. and Holland, Lynwood M., “Recent Restrictions upon Negro Suffrage: The Case of Georgia,” Journal of Politics 21 (08 1959): 487–513CrossRefGoogle Scholar; Lawson, Steven F., Black Ballots: Voting Rights in the South, 1944–1969 (New York, 1976), 48, 206–8.Google Scholar

59. Bartley, Numan V., The Creation of Modern Georgia (2d ed., Athens, Ga., 1990), 206Google Scholar; “Four Negroes Elected to Seats on Demo Executive Committee,” Augusta Chronicle, 19 April 1962, 7B, 16B; “Registered Voter List Increases,” Americus Times-Recorder, 12 May 1963, 3.

60. “Voters Set Registration Record,” Augusta Chronicle, 16 August 1962, 2B; “Augusta's Eight Political Divisions,” in ibid., 2 September 1962, 1B; McCrary, Peyton, “The Dynamics of Minority Vote Dilution: The Case of Augusta, Georgia, 1946–1986,” Journal of Urban History 25 (01 1999): 199–225.CrossRefGoogle Scholar

61. In order to comply with court-ordered redistricting, the legislature had to reapportion at least one of its two houses. Under Georgia law the senate could be redistricted by statute, whereas reapportioning the house would require a constitutional amendment. Toombs v. Fortson, C.A. No. 7883 (N.D. Ga.), Opinion, 5 September 1962, summarized in Moore, “The Preservation of County Lines,” 47–48.

62. Hopkins, Sam, “Legislature Convening on Sept. 27,” Atlanta Constitution, 15 09 1962, 1, 8Google Scholar; “Sanders to Tell Legislators Senate Change All-Important,” Macon Telegraph, 18 September 1962, 7; “Solons Pledge to Aid Sanders,” 19 September 1962, 5; “Governor-Nominee Facing Early Test of Leadership,” 23 September 1962, 1.

63. Hanes, O. P., “Rules Committee in Closed Meet,” Americus Times-Recorder, 28 09 1962Google Scholar; Murphy, Reg, “Rules Panel Backs 54-Seat Senate,” Atlanta Constitution, 29 09 1962, 1, 9Google Scholar; “Governor-Nominee Facing Early Test of Leadership,” Macon Telegraph, 23 September 23, 1; Cook, Carl Sanders, 110–11. Sanders emphasizes his personal involvement in plan-drawing, which at the time meant using crayons to draw alternative plans on maps. Sanders, Deposition, 28 September 1994, in State of Georgia v. Reno, C.A. No. 90–2065 (D.D.C.), 28–29.

64. With regard to the at-large feature of the redistricting plan, Sanders recalls that it “was not my idea,” and, he says, “it didn't matter to me whether they ran in their districts or whether they ran county-wide.” Ibid., 32, 38. Whatever his personal beliefs may have been, we believe these assertions are inconsistent with the contemporary evidence regarding Sanders's public actions in 1962. See “Solons Pledge to Aid Sanders,” Macon Telegraph, 19 September 1962, 5; “Women Oppose Sanders Plan,” Cordele Dispatch, 28 September 1962, 1; Murphy, Reg, “Rules Panel Backs 54-Seat Senate,” Atlanta Constitution, 29 09 1962, 1, 9.Google Scholar

65. Constitution of the State of Georgia (Atlanta, 1945, Article III, Section II.

66. “Bibb Senate Setup Still Unsettled,” Macon Telegraph, 1 October 1962, 1.

67. Hanes, O. P., “Reapportionment Bill Passed by the Senate,” Americus Times-Recorder, 5 10 1962, 1Google Scholar. Sanders recalls vividly that as governor-nominate he was “largely responsible” for pushing the redistricting bill through the legislature and takes understandable pride in persuading his colleagues to adopt their own plan rather than leave the task to federal judges. Sanders, Deposition, 28 September 1994, in State of Georgia v. Reno, C.A. No. 90–2065 (D.D.C.), 28–29.

68. Murphy, Reg, “Redistricting Certain to Win in House, Experts Forecast,” Atlanta Constitution, 3 10 1962, 1, 9Google Scholar. Edwards was the senior lawyer on the attorney general's staff, according to attorney E. Freeman Leverett, who had worked under Edwards's supervision in the 1950s. Peyton McCrary, interview with E. Freeman Leverett, 14 April 1992.

69. Pou, Charles, “Vote Setup Snags Push on Reseating,” Atlanta Journal, 4 10 1962, 1, 8.Google Scholar

70. Rogers, Ed, “Senate Votes Historic Reapportion Measure,” Cordele Dispatch, 5 10 1962, 1Google Scholar. Georgia Laws (Ex. Sess. 1962), Act No. 1 (5 October 1962), 7–31, and Resolution No. 1 (Oct. 8, 1962), pp. 51–52.

71. Toombs v. Fortson, C.A. No. 7883 (N.D. Ga.), Opinion, 5 September 1962, cited in Moore, “The Preservation of County Lines,” 47–48; “House Passes Senate Amendment, 178–6,” Rome News-Tribune, 8 October 1962, 1.

72. “Women Oppose Sanders Plan,” Cordele Dispatch, 28 September 1962, 1. Before the rules committee, Senator Smalley echoed Sanders's rationale for at-large elections as a unifying device for local delegations. “Bibb Senate Setup Still Unsettled,” Macon Telegraph, 1 October 1962, 1.

73. “Women Oppose Sanders Plan,” Cordele Dispatch, 28 September 1962, 1. See also Murphy, Reg, “Rules Panel Backs 54-Seat Senate,” Atlanta Constitution, 29 09 1962, 1, 9Google Scholar; Pou, Charles, “Vote Setup Snags Push on Reseating,” Atlanta Journal, 4 10 1962, 1, 8.Google Scholar

74. Curiously, when testifying in a recent voting rights case, Sanders did not recall this “good government” concern. The trial judge nevertheless concluded that this concern (as quoted in 1962 newspapers) was among the reasons why Sanders supported the countywide election of senators, but also found that “Sanders's advocacy of at-large elections was, indeed, racially motivated.” Brooks v. Miller, C.A. No. 1:90-CV-1001 (N.D. Ga.), Order, 26 September 1996, 11. The appeals court agreed: Brooks v. Miller, 158 F. 3d 1230, 1234 (11th Cir. 1998).

75. In 1962 Eugene Patterson was the editor of the Atlanta Constitution; in that capacity he supervised news coverage of the redistricting process and resulting elections. He believes that Georgia newspapers at the time presented factually accurate accounts of legislative matters and accurately quoted legislators. Brooks v. Miller, C.A. No. 1:90-CV-1001 (N.D. Ga.), Trial Transcript, v. 3 (15 May 1996), 436, 452–53.

76. Rogers, Ed, “Showdown Nears on Revised Bill,” Cordele Dispatch, 4 10 1962, 1Google Scholar; “House in Showdown on Apportionment,” Rome News-Tribune, 4 October 1962, 1, 16; Wheeler, Charles D., “Inside Georgia,” DeKalb New Era, 4 10 1962, 1Google Scholar. The principal evidence that Rutland was a moderate is that, unlike Sanders, he had favored scuttling the county unit system immediately after the federal court struck it down in the spring of 1962. See note 26 above.

77. Scott, Stanley S., “Republicans to Enter Senate Primary Race, Launch 2-Party Gov't,” Atlanta Daily World, 7 10 1962, 1, 8Google Scholar. Sanders does not recall that the issue of diluting black voting strength was ever discussed in the redistricting debates. Sanders, Deposition, 28 September 1994, in State of Georgia v. Reno, C.A. No. 90–2065 (D.D.C.), 39–41, 43–44. On the other hand, Sanders does not dispute the accuracy of contemporary newspaper accounts (47–48). Another participant, Sanders's good friend George T. Smith, a member of the Georgia house in 1962 whom Sanders named speaker in 1963 (and subsequently a respected state supreme court justice), professes to remember no specific facts regarding the redistricting process in 1962, but he concedes that the purpose of the at-large requirement was probably to make it more difficult for blacks to get elected to the senate from Fulton County. George T. Smith, Deposition, 29 September 1994, in State of Georgia v. Reno, C.A. No. 90–2065 (D.D.C.), 25–27.

78. “House Passes Senate Amendment, 178–6,” Rome News-Tribune, 8 October 1962, 1. See, in addition, “Negro Dentist Will Run for State Senate,” Americus Times-Recorder, 8 October 1962, 1, 6. Eugene Patterson agrees that Sanders had to support racially motivated legislation in order to get elected to public office in those days, and that often “people talked one way and did another in that period.” Brooks v. Miller, Trial Transcript, v. 3 (15 May 1996), 452–53, 456–57. Patterson also believes that Sanders, whom he considers a good friend, would have been reluctant to express publicly a racial purpose in favoring at-large elections “because he wanted the black vote.” Steven F. Lawson, interview with Eugene Patterson, 13 June 1991 (transcribed from a tape recording), 12, 19.

79. “Rep. Twitty Ending 20 Years in House,” Atlanta Constitution, 1 April 1964, 1.

80. Murphy, Reg, “House Votes, 177–15, to Give Cities the Big Voice in New Senate,” Atlanta Constitution, 10 3, 1962, 1, 12Google Scholar. For other reports of Twitty's racial defense of at-large elections, see Britton, Gene, “House Approves Revised Bill for Reseating State Senate,” Macon Telegraph, 5 10 1962, 1Google Scholar; Scott, Stanley S., “Republicans to Enter Senate Primary Race, Launch 2-Party Gov't,” Atlanta Daily World, 7 10 1962, 1, 8Google Scholar; Hanes, O. P., “House Okays Countywide Election of Candidates,” Albany Herald, 8 10 1962, 1Google Scholar; “Negro Dentist Will Run for State Senate,” Americus Times-Recorder, 8 October 1962, 1, 6.

81. “House Passes Senate Amendment, 178–6,” Rome News-Tribune, 8 October 1962, 1. For confirmation in a different press account, see “Negro Dentist Will Run for State Senate,” Americus Times-Recorder, 8 October 1962, 1, 6; Murphy, Reg, “Ratification Is Pushed by Sanders,” Atlanta Constitution, 8 10 1962, 1, 13Google Scholar; Achsah Posey, “New Setup Challenged in Court,” in ibid., 9 October 1962, 1, 10.

82. Reg Murphy, who was in 1962 the political editor of the Atlanta Constitution and the author of frequent news stories about senate redistricting, clearly recalls the frequent comments by legislators in 1962 opposing district elections because they would enable a black senator to be elected from Atlanta. Peyton McCrary, interview with Reg Murphy, Washington, D.C., 3 August 1995.

83. Britton, Gene, “Revised Reseating Plan Approved by House Bloc,” Macon Telegraph, 4 10 1962, 1Google Scholar. Eugene Patterson concedes that he believed in 1962 “that it would be virtually impossible for a black to get elected running county wide in Fulton County.” Brooks v. Miller, Trial Transcript, v. 3 (15 May 1996), 436, 452–57.

84. Sibley, Celestine, “House Gets Going on Districting,” Atlanta Constitution, 2 10 1962, 1, 10.Google Scholar

85. Pou, Charles, “Countywide Races Called Invalid,” Atlanta Journal, 9 10 1962, 6.Google Scholar

86. “County-Wide Races in Some Senate Districts Attacked in Court Suit,” Macon Telegraph, 9 October 1962, 1; Scott, Stanley S., “Suit Seeks Senate Races by District; 3 Federal Judges to Render Decision,” Atlanta Daily World, 9 10 1962, 1, 6Google Scholar; “Suit Assails County-Wide Senate Vote,” Atlanta Constitution, 12 October 1962, 7; Posey, Achsay, “Court to Consider Voting Suit Today,” Atlanta Constitution, 13 10 1962, 1, 9Google Scholar; “Negro Hits Vote Plan for Senate,” Macon Telegraph, 13 October 1962, 8; Rogers, Ed, “Countywide Vote on Senators to Stay, Court Says,” Atlanta Daily World, 14 10 1962, 1, 4Google Scholar; Moore, Charles, “GOP Suit Asks Vote by Districts,” Atlanta Constitution, 20 10 1962, 1, 11.Google Scholar

87. McCrary, interview with E. Freeman Leverett, 14 April 1992; “Judges Refuse to Rule on Countywide Voting,” Atlanta Constitution, 14 October 1962, 1; Rogers, Ed, “Countywide Vote on Senators to Stay, Court Says,” Atlanta Daily World, 14 10 1962, 1, 4Google Scholar; “Tomorrow's Vote to Make History,” Atlanta Constitution, 15 October 1962, 1, 7.

88. Kousser, Colorblind Injustice, 209–10, 226.

89. “County-Wide Vote Enjoined by Court,” Macon Telegraph, 16 October 1962, 1; “Legal Snarl in Picture as Voters Pick Senate; Results May Be in Doubt in Multi-District Fulton,” Valdosta Daily Times, 16 October 1962, 1, 4; “Fulton Senate Voting Can Be Held by Districts Only, Judge Pye Rules,” Atlanta Constitution, 16 October 1962, 1, 6. In the DeKalb County case, the plaintiff sued state party officials and, because both parties' headquarters were in Fulton County, Pye had jurisdiction.

90. “Legal Snarl in Picture as Voters Pick Senate; Results May Be in Doubt in Multi-District Fulton,” Valdosta Daily Times, 16 October 1962, 1, 4; “Pye's Ruling to be Taken to High Court,” Macon Telegraph, 17 October 1962, 1; Gaines, Marion, “Who's in Runoff? It's Up to Courts,” Atlanta Constitution, 18 10 1962, 1, 14Google Scholar; Toombs v. Fortson, C.A. No. 7883 (N.D. Ga.), Opinion, 19 October 1962, cited in Moore, “The Preservation of County Lines,” 56.

91. The chief justice declared that “the federal court has brought chaos into the electoral process and the legislative process.” The supreme court was also annoyed about a technical state-law issue: because Pye had not, as required under state court procedures, certified a bill of exceptions regarding his order, Leverett had resorted to a rarely used method of appealing to the supreme court, which angered the court. Gaines, Marion, “Georgia's High Court Stays Aloof; Implies Solution Is Up to U.S. Judges,” Atlanta Constitution, 19 10 1962, 1, 8Google Scholar; “Negro Slated for Georgia Senate Under New Ruling,” Albany Herald, 19 October 1962, 1, 5.

92. “1st Negro Senator in Century Gets Post Under Pye's Ruling; Fulton Bows to Court Demands on Returns,” Cordele Dispatch, 19 October 1962, 1, 4. Interestingly, Leverett has no recollection of this phase of the case. McCrary, interview with E. Freeman Leverett, 14 April 1992.

93. “Count by Districts Changes Results of 3 Fulton County Races, One in DeKalb,” Atlanta Constitution, 19 October 1962, 1, 12; “Negro Seems Assured of State Senate Seat,” Valdosta Times, 19 October 1962, 1, 2; “Pye's Ruling Paves Way for Negro State Senator,” Macon Telegraph, 21 October 1962, 1. Also as a result of Pye's order, a black Republican candidate, Rod Harris, defeated a white female Republican in the 39th senatorial district, although she would have won in a countywide primary. “District Voting Due Tomorrow,” Atlanta Constitution, 22 October 1962, 1, 13. Harris lost in the general election, however: “Negro Democrat Wins; Republican Upsets Lokey,” Atlanta Constitution, 7 November 1962, 1, 12.

94. Editorial, “It Was a Confusing Primary….” Atlanta Constitution, 17 October 1962, 4. Patterson continues to think the view expressed in this 1962 editorial was correct. Brooks v. Miller, Trial Transcript, v. 3 (15 May 1996), 436, 452–57.

95. Finch v. Gray, No. A 96441 (Fulton Co. Superior Court), 30 October 1962, cited in Moore, “The Preservation of County Lines,” 56, and in Fortson v. Dorsey, 379 U.S. 433, 434 (1965); Strong, Jack, “Judge Puts Election on a District Basis,” Atlanta Constitution, 30 10 1962, 1, 6.Google Scholar

96. “Negro Democrat Wins; Republican Upsets Lokey,” Atlanta Constitution, 7 November 1962, 1, 12.

97. See the Complaint, 24 January 1964, and the Defendant's Motion for Summary Judgement, 6 March 1964, with attachments, Dorsey v. Fortson, C.A. No. 8756 (N.D. Ga.), in the Record from U.S. District Court, Fortson v. Dorsey, No. 178 (Oct. Term 1964), U.S. Supreme Court Library, hereafter cited as Record, Fortson v. Dorsey.

98. Bass, Unlikely Heroes, 158, 161–63; Transcript of Proceedings, Dorsey v. Fortson, 17 March 1964, in Record, Fortson v. Dorsey, 29–30.

99. 372 U.S. 368 (1963).

100. Dorsey v. Fortson, 228 F. Supp. 259, 262–63 (N.D. Ga. 1964). The parties agreed as to the facts of the case, which the court decided on motions for summary judgment. The racial dimension of the controversy over at-large elections was not raised at this stage of the proceedings.

101. Brief for the Appellees, 7–9, in the Record from U.S. District Court, Fortson v. Dorsey, No. 178 (Oct. Term 1964). The appellees relied for support on a recent decision in a Pennsylvania reapportionment case, Drew v. Scranton, 229 F. Supp. 310 (M.D. Pa., 1964), which had, among other things, struck down the uneven use of at-large elections in metropolitan counties. Apparently without specific evidence in the record, that court observed that “minority groups living in particular localities may well be submerged in elections at large but can often make their voting power much more effective in the smaller single-member district in which they live.” 229 F. Supp. 327.

102. JCG, Bench Memorandum, Fortson v. Dorsey, No. 178 (Oct. Term 1964), 1 December 1964, 9–10, Earl Warren Papers, Library of Congress.

103. The two black Atlanta attorneys most likely to have intervened in the case, Donald L. Hollowell and Howard Moore Jr., were swamped with dozens of cases defending civil rights demonstrators in hostile state courts, most especially before Judge Durwood Pye. Strong, Jack, “Told Negroes to Leave, Head of Motel Testifies,” Atlanta Constitution, 10 03 1964, 3Google Scholar; “Judge Pye to Rule on 20 Sit-Ins,” Atlanta Constitution, 19 March 1964, 6; Strong, Jack and Simmons, Ted, “Fulton Deputies Refuse to Hand Over Negro Sit-In to U.S. Marshals: Judge Pye Orders Girl to Be Held,” Atlanta Constitution, 20 03 1964, 1, 13.Google Scholar

104. Dixon, Democratic Representation, 477.

105. Fortson v. Dorsey, 379 U.S. 433, 436–38 (1965). In an editorial, “More Confusion, But More Flexibility,” Atlanta Constitution, 19 January 1965, 4, the city's leading paper characterized the Supreme Court decision as “a surprising reversal,” specifically addressing the issue of vote dilution. “When the court heard arguments in this case, there was a brief reference to the fact that county-wide voting in Fulton might prevent Negroes from ever electing a state senator. (There are two from Fulton now, elected under the district-by-district method of voting.)” The editorialist conceded, however, that Justice Brennan's opinion noted that plaintiffs had offered no proof of vote dilution.

106. 377 U.S. 533 (1964). Justice Brennan authored the majority opinion in Reynolds, as well as in Fortson.

107. Fortson v. Dorsey, 379 U.S. 433, 436–37.

108. “When this is demonstrated it will be time enough to consider whether the system still passes constitutional muster.” 379 U.S. 433, 439 (1965). As Kousser, Colorblind Injustice, 332–33, observes shrewdly, Justice Brennan left open the question of whether minority plaintiffs would be required to prove discriminatory intent in order to win an equal-protection case, whereas in the one-person, one-vote cases plaintiffs only had to show the discriminatory effect—departure from population equality—to prevail.

109. Dixon, Democratic Representation, 477. For a similar observation, see Jewell, Malcolm E., “Minority Representation: A Political or Judicial Question,” Kentucky Law Journal 53 (1964–1965): 284–285Google Scholar,

110. McDonald, Laughlin, “The Quiet Revolution in Minority Voting Rights,” Vanderbilt Law Review 42 (05 1989): 1249, 1259.Google Scholar

111. Dixon, Democratic Representation, 182–85, 194, 597–98.

112. For an explanation of how these characteristics produce successful judicial policies in another context, see McCrary, Peyton, “Why the Voting Rights Act Worked: A Judicial Model of Policy Implementation,”paper presented to the Association for Public Policy Analysis and Management,Washington, D.C.,7 November 1997.Google Scholar

113. Bass, Unlikely Heroes, 99–100, 106–9, 267–72; Lawson, Black Ballots, 266–72, 293–94.

114. See, for example, Derfner, “Racial Discrimination and the Right to Vote,” 553–55, 572–74; McCrary and Hebert, “Keeping the Courts Honest,” 102–5; Parker, Black Votes Count, 51–54, 73–74, 94, 159–64; Davidson, and Grofman, , eds., Quiet Revolution in the South, 39–41 (Alabama)Google Scholar, 159–60 (North Carolina), 201–2, 206–10 (South Carolina), 243–06 (Texas), 280–83 (Virginia); Kousser, Colorblind Injustice, 55, 139, 163–69, 172, 174–80, 184–93.

115. This is why we have discussed so carefully the evidence regarding the role of governor-nominate Carl Sanders in the 1962 redistricting process. The same pattern of moderate support is found in the adoption of at-large elections in Sanders's hometown of Augusta: see McCrary, “The Dynamics of Minority Vote Dilution,” 201, 203–5, 209–11.

116. See, for example, Strong, Jack, “Told Negroes to Leave, Head of Motel Testifies,” Atlanta Constitution, 10 03 1964, 3Google Scholar; “Judge Pye to Rule on 20 Sit-Ins,” Atlanta Constitution, 19 March 1964, 6; Strong, Jack and Simmons, Ted, “Fulton Deputies Refuse to Hand Over Negro Sit-In to U.S. Marshals: Judge Pye Orders Girl to Be Held,” Atlanta Constitution, 20 03 1964, 1, 13.Google Scholar

117. See Kousser, Colorblind Injustice, 53–54, 332–33.

118. 379 U.S. 433, 439 (1965). Writing between the trial court opinion and the ultimate decision by the Supreme Court, one political scientist noted that the case presented “a constitutional question which could have far-reaching implications for Negro representation in state legislatures.” Jewell, “State Legislatures in Southern Politics,” 185.

119. Lawson, Black Ballots, 307–8, 420; Garrow, David J., Protest at Selma: Martin Luther King, Jr., and the Voting Rights Act of 1965 (New Haven, 1978), 36–42, 266–68.Google Scholar

120. White v. Regester, 412 U.S. 755 (1973).