Howard Callaway - Legal Challenges

Legal Challenges

Under Georgia's election law then in effect, the state legislature was required to select a governor from the two candidates with the most votes. Dominated overwhelmingly by Democrats, the legislature selected Maddox. After certification of the election returns, a three-judge federal panel, including future Attorney General of the United States Griffin Bell, a Democrat, and Judge Elbert Tuttle, a Republican, struck down the constitutional provison permitting the legislature to elect the governor. The judges said that a malapportioned legislature might "dilute" the votes of the candidate with a plurality of the ballots. Bell equated legislative election to the county-unit principle already struck down by the courts. The judges granted a 10-day suspension of their ruling to permit appeal to the United States Supreme Court and stipulated that the state could resolve the impasse so long as an alternative to legislative election was reached. The American Civil Liberties Union, critical of Republican crossover votes in the Maddox-Arnall Democratic runoff election, opposed legislative intervention or a new general election without write-ins being permitted. Instead, the ACLU sought to reopen the primary process. Other citizen groups proposed a special election. The Democratic state chairman insisted that anything other than election by the legislature would be "a sad commentary on the decline of constitutional government."

In the state's appeal, Attorney General Arthur K. Bolton emphasized that state law permits write-ins in all elections. A general election runoff, which then had no precedent but was later adopted in Georgia, could lead to another deadlock because of the write-ins, Bolton reasoned. Therefore, Bolton argued that the legislature should choose the governor despite malapportionment. A special election could not be called prior to the tabulation of returns on January 10, 1967.

In a five-to-two decision, the U.S. Supreme Court upheld Bolton's reasoning and cleared the path for the legislature to elect Lester Maddox. Justice Hugo Black, a former Democratic U.S. senator from Alabama, took the strict constructionist line by emphasizing that the Constitution does not dictate how a state must elect its governor. "Our business is not to write laws to fit the day. Our task is to interpret the Constitution," Black explained. The two liberal dissenters, Abe Fortas and William O. Douglas, ironically supported Callaway's position. Fortas contended that the 1824 provision for the legislature choosing the governor "belittled the equal protection clause", which did not become operational until 1868. "If the voting right is to mean anything, it certainly must be protected against the possibility that victory will go to the loser," said Fortas.

In light of the ruling, Callaway supported a resolution by State Representative A. Mac Pickard of Columbus for a special runoff election without write-ins. Lawmakers tabled Pickard's motion, 148 to 110. When Callaway sought a meeting with Maddox to discuss the issue, he was told to contact Maddox on January 11, 1967, in the governor's office.

The combined Georgia House and Senate chose Maddox, 182 to 66. More than thirty Democrats defected to Callaway either because he held a slim statewide plurality or had carried their districts. Elliott Levitas, Arnall's law partner from Atlanta, backed Callaway. In 1974, in a heavily Democratic year, he unseated the Republican U.S. Representative Benjamin B. Blackburn. Also in 1974, George Busbee, another Callaway supporter, defeated Maddox for the Democratic gubernatorial nomination and then trounced the Republican nominee, Ronnie Thompson, the former mayor of Macon. Under a change in the law, Busbee became the first Georgia governor to serve two consecutive terms.

Another group appealed to the Supreme Court of Georgia, which ruled five-to-two in favor of having the legislature break the impasse. Chief Justice William Henry Duckworth, a Democrat partial to the Pickard resolution, questioned allowing the candidate with the lower vote tabulation to become governor. "Strip the citizen of his right to voe, and you render him a helpless victim of a dictator," Duckworth dissented.

The Atlanta Constitution concluded that "flabbergasting circumstances" had turned the gubernatorial campaign into "a page from Ripley's. In defeat, Callaway said that the GOP had "a long way to go to achieve a competitive force. Let us pledge to work twice as hard to make Georgia a shining example of opportunity." Callaway promised the Republican faithful that they would "meet again on another day in another race," lending incorrectly to speculation that he might challenge U.S. Senator Herman Talmadge in 1968. The Atlanta Constitution described Callaway as a "lonesome, sad figure."