89 F. Supp. 672

ANDREWS, District Judge
(dissenting)-
I approach the matter of dissenting from my learned colleagues with great deference and do so only after a lengthy effort to reconcile my views with theirs. But I am unable to agree with the conclusions of law reached by the majority.
The Equal Protection Clause of the Fourteenth Amendment provides: “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
I think the State Statute under attack, as applied to the statewide primary for any office, is repugnant thereto and should be so declared, and that injunction should be granted as sought.
Equity jurisdiction of the federal courts is discretionary, American Federation of Labor v. Watson, 327 U.S. 582, 593, 66 S.Ct. 761, 90 L.Ed. 873. Conceding that it should be sparingly exercised in state elections, Wilson v. North Carolina, 169 U.S. 586, 596, 18 S.Ct. 435, 42 L.Ed. 865, it is yet proper to employ it in clear cases.
Laying aside for the moment the critical questions of judicial power to afford injunctive relief in this case and the propriety of a decree it is difficult to imagine a more obvious denial of the equal protection of the laws than that imposed on plaintiffs by the county unit system or one with less foundation in experience, practicality or necessity. As qualified voters they are allowed to vote and their votes are counted. Then, by force of the statute, the votes are so consolidated that plaintiffs’ votes are evaluated at one-eleventh the weight given to ballots cast in other parts of the State. Thus the basis of the discrimination is place of residence, a discrimination not justified cm any reasonable basis of classification, nor can it be said to furnish plaintiffs the equal protection of the laws.
It is noted that the rural population outnumbers the urban and that throughout the state the percentage to total population of votes cast is fairly constant, i. e., proportionately no more city folks vote than do country people. This disposes of the notion, tacitly approved in MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, that difficulty in getting to the polls should be recognized here as a makeweight in justifying a rank discrimination based on place of residence.
It is settled law that the constitutional protection of the voting right extends to a primary where such primary is an integral part of the state election machinery. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; Smith v. Allright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110. The Georgia Democratic Primary has been adopted by the State of Georgia as an integral part of the state election process and party action in such a primary is state action. Denial of the right to vote in a Georgia Democratic Primary is a-violation of a federally-protected right. Chapman v. King, 5 Cir., 154 F.2d 460. Denial of the right to vote is a violation of the Equal Protection Clause. Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458; Smith v. Allwright, supra. The right to vote includes the right to have the ballot counted. United States v. Classic, supra; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274. The right to have the vote counted includes the right to have it counted without dilution and at full value. United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341. See dissent in Colegrove v. Green, 328 U. S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, where the majority disposed of the case on jurisdictional grounds without consideration of the Equal Protection Clause.
Moreover the county unit system as applied in the election of United- States Senators may be a direct violation of the Seventeenth Amendment which guarantees election of Senators by the people.
The constitutional power of- the Senate to. exclude the chosen one has no bearing on the individual’s right to have his vote counted properly. The record shows that since 1872 no candidate for United States Senator other than a.nominee of the- Democratic Party, has been elected to that office from this State. In logic and in fact the Democratic primary election for Uuited States Senators is the only election of any significance an,d. ¡voting in that election is the only effective stage of a voter’s choice. See United States v. Classic, supra, and Smith v. Allwright, supra. _ Furthermore, the right to vote for a member of the Congress of the United States, including •Senators, is a right secured by the Constitution. Ex parte Yarbrough, supra; United States v. Aczel, D.C., 219 F. 917. Abridgment of the right by the state is a violation of the Privileges and Immunities Clause of the Fourteenth Amendment. This right may not be abridged in a primary election, United States v. Classic, supra.
• This case does not present a political question in the sense that the subject matter is nonjusticiable, Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795; Colgrove v. Green, supra; MacDougall v. Green, supra. The plaintiffs are not political entities seeking solution of abstract questions of political power, as in State of Georgia v. Stanton, 6 Wall. 50, 18 L.Ed. 721; Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25; Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. They are not contesting a- political office nor do they represent political -entities seeking to enforce a right to good government common to all, as in Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499; Commonwealth of Massachusetts v. Mellon, supra. Plaintiffs sue as individuals to enforce rights political in origin but nonetheless personal and individual. Nixon v. Herndon, supra.
. Colegrove v. Green, in which four of seven justices held a justiciable issue was presented, stands for the proposition that equity must withhold injunctive relief where the consequences of a decree might be worse than the evil to be remedied, Where the evil complained of can be remedied without disruption of a pending election and without denial of rights to other citizens, as in the instant case, the rule of Colegrove .v. Green does not apply. Cole-grove v. Barrett, 330 U.S. 804, 67 S.Ct. 973, 91 L.Ed. 1262, has the same authority on the issue of justiciability as Cole-grove v. Green, upon which it is based.
Moreover, the opinion of the' three jus: tices who found the issue in Colegrove v’. Green to be nonjusticiable is distinguishable from this case. There is no question here of interference with Congress in its power to control the manner of holding elections. There is no necessity for this Court to remap the State politically, nor for the Georgia General Assembly to take any action. There is no problem here of individuals seeking to right a wrong to the State as a polity. Plaintiffs do not complain of any wrong done their county, nor do they seek remedy for the unequal representation accorded their county in the General Assembly. They ask only that their votes be valued equally with other votes cast for the same offices.
MacDougall v. Green, supra, involved issues of justiciability substantially similar to Colegrove v. Green. A majority of the Court decided the case on its merits, holding that the discrimination complained of was not of sufficient degree to warrant judicial correction. The Court took jurisdiction of the case in order to decide the" substantive issues involved. Furthermore, MacDougall v. Green related only to the direction from which political initiative may be permitted to come; it is not authority for permitting gross dilution of a ballot cast.
The cases cited above sustaining the justiciability of the instant case are also authority for the fundamental jurisdiction of this Court to grant equitable relief. In Colegrove v. Green, supra, a majority of the Court found no want of equity, though a majority, differently composed, concluded that the relief sought should be denied. In MacDougall v. Green, supra, a majority of the Court refused relief on substantive grounds, but interposed no bar to the exercise of equitable jurisdiction. See also Rice v. Elmore, 4 Cir., 165 F.2d 387, certiorari denied 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151.
From these cases there can be no longer any doubt that the protection of individual political rights is within the legitimate exercise of equitable power where the consequences of a decree do not present practical difficulties to its enforcement. Giles v. Harris, 189 U.S. 475, 23 S.Ct. 639, 47 L.Ed. 909, has been so interpreted by the Supreme Court. Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; Colegrove v. Green, supra, dissent.
Keeping in mind the nature of federal equity jurisdiction, and that it should be most sparingly exercised in State elections, the controlling question in this case is one of equitable discretion: Are the probable consequences of a decree such that equity should withhold its hand? The vote of a citizen living on one side of More-land Avenue in Atlanta, DeKalb County, equals five of his neighbor directly across the street in Atlanta, Fulton County. This discrimination imposed by the Statute in the most flagrant instance in the ratio of 122 to 1 and on an average ratio of approximately 11 to 1 is so apparent and so unjustifiable on any reasonable basis of classification that only the most compelling reasons should influence this Court to refuse relief.
I am unable to find any unpalatable practical consequences to the granting of an injunction in this case. There will be no necessity for this Court to supervise any election, an eventuality upon which Giles v. Harris, turned. The gross discrimination wrought by the offending statute occurs after the votes have been cast and counted by a method employed by the State Democratic Executive Committee and its chairman and secretary. The effective application of the discrimination to the plaintiffs occurs when the nominees are placed on the general election ballot by the Secretary of State. All of these instruments of discrimination are defendants here and an injunction forbidding their actions under the offending statute will effectively end the discrimination. The relief granted in Rice v. Elmore, supra, required of the Court vastly greater supervision of the electoral process than is asked or required in this case.
Granting of injunctive relief will not bring about any of the practical consequences feared by the Court in Colegrove v. Green, supra. No disruption of a pending election will ensue. The only change which will be effected is the method of consolidating the vote at the top level of the Georgia Democratic Party. The votes will be cast and counted in precinct, ward and county -without change or interruption. The Georgia General Assembly need take no action to provide an alternative method of determining nominees, for under Georgia law the responsibility will revert to the party. Defendants in argument and brief have relied heavily upon two other suits which involved attacks upon the Georgia County Unit System, Turman v. Duckworth, D.C., 68 F.Supp. 744, and Cook v. Fortson, D.C., 68 F.Supp. 624 both decided in 1946 by this Court. The Supreme Court of the United States dismissed appeals on the grounds of mootness, citing United States v. Anchor Coal Company, 279 U.S. 812, 49 S.Ct. 262, 73 L.Ed. 971; Turman v. Duckworth, 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed. 596.
These cases have no application to the case at bar. The District Court in each case based its decision on Colegrove v. Green, supra. As discussed above, that case is authority only for the discretionary power of equity to deny relief under the circumstances of that case. In the earlier county unit cases, the plaintiffs sought to overturn a completed primary election after they had participated in the primary without objection, on the grounds that candidates for whom they had voted received a plurality of votes cast in their respective contests but were not declared nominees of the party. The candidates themselves did not complain and one of them even went so far as to intervene to ask that the suit be dismissed.
The consequences of injunctive relief in those two cases presented practical problems in the exercise of the Court’s discretionary powers not perceivable in the instant case, and viewed in this light the District Court decisions in them are' not precedent for denial of relief here.- Furthermore, since rendition of the District Court opinions in these cases, the Supreme Court of the United States took jurisdiction to decide the substantive issues in MacDougall v. Green, supra.
I am of the opinion that plaintiffs are entitled to a declaration that the Statute attacked is invalid and that an injunction should issue to restrain the application of the county unit system to future statewide Democratic Party elections in Georgia.

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