J. Robert Elliott: The man who made the motion

First, decide what gets counted

On January 14, 1947, Robert Elliott needed the Georgia legislature to do its business in a particular order. Count the votes for governor. Settle who would hold the office. Inaugurate him. Then take up the other statewide elections. Elliott's proposal would leave M. E. Thompson waiting for recognition as lieutenant governor while Herman Talmadge took the oath as governor.¹

The voters had elected Thompson. They had not elected Herman. They had elected Herman's father, Eugene, who died before he could begin his term. Herman's supporters argued that the legislature could now choose a governor from the surviving recipients of votes. Thompson claimed the succession through the new office the voters had given him. Ellis Arnall, the outgoing governor, refused to surrender the office to Herman.²

Before Elliott could nominate his man, he had to get the legislature to accept the procedure that would make the nomination possible. An amendment requiring all the returns to be published first failed by 128 votes to 126. Two votes kept Elliott's order of business intact.¹

A Columbus lawyer with a job to do

Elliott was thirty-seven. Born in Gainesville on New Year's Day in 1910, he had graduated from Emory, taken his law degree there, and begun practicing in Columbus in 1934. He entered the Georgia House in 1937, served as a Navy lieutenant during the war, and returned to law and politics afterward. He came to the succession fight with legislative experience, not merely a family preference.³

That mattered because the Talmadge organization needed different kinds of men. Roy Harris, the former House speaker, could work the relationships outside the chamber. Lawyers could construct the constitutional argument. Elliott's assignment was to bring that argument onto the floor in a form legislators could vote on. Someone had to turn a claim to the governorship into the next item of business.¹

Eugene's death had left his followers with an organization, a platform, and a son who had managed his last campaign. It had not left the son an uncontested right to inherit the office. Thompson had his own following and an election behind him. Arnall had the office itself and the attorney general's support. Those were obstacles Elliott had to work around, not details that disappeared because the Talmadge galleries were full.²

The fight was about more than which man got the desk. Recognizing Thompson's election first would strengthen his claim before Herman could establish possession. Elliott's procedure reversed that sequence. If it worked, the legislature would be dealing with an inaugurated governor when it finally reached the returns for lieutenant governor.¹

A dead man's majority

Procedure alone was not enough. Under the Talmadge interpretation of the constitution, Herman still needed to finish among the leading surviving vote-getters. The November write-ins had been collected for that purpose, but as the returns were counted he trailed both Jimmy Carmichael and D. Talmadge Bowers. If he remained third among the living candidates, the legislature could not choose him even under his own side's argument.⁴

Then the Telfair County figures changed. Nineteen votes had been counted for Herman from his home county. A consolidated return found among the papers for other statewide offices credited him with seventy-seven. The additional fifty-eight put him ahead of the other write-in candidates. The legislature had declined to canvass all the offices first; papers belonging to those other offices now supplied the votes he needed.⁴

Elliott moved to the next step. The assembly was asked to declare that nobody had received a majority because the man who had received the majority was dead. Adie Durden offered the alternative: recognize Eugene as the winner and acknowledge that the legislature had no authority to elect somebody else. That would defeat the maneuver without changing a single vote cast in November.⁴

The assembly rejected Durden's position and adopted Elliott's resolution. Elliott then nominated Herman for a four-year term. On the final roll call, 161 members voted for Herman and eighty-seven answered present. Those eighty-seven were not votes for Thompson. The continuing session carried January 14's date, but the clock had passed into January 15 by the time Herman took the oath.⁵

This was the work Elliott had done. He had helped control the order in which the legislature recognized elections, secured acceptance of a disputed constitutional reading, and placed a candidate before a body prepared to elect him. Herman went downstairs to claim the executive office. Arnall refused to leave.²

The victory did not survive the courts. On March 19, the Georgia Supreme Court ruled that the legislature had lacked authority to elect Herman. The constitutional decision was distinct from the reporting that exposed fraudulent Telfair votes. Elliott's successful floor work had secured possession of the office, not a lawful four-year term. Herman left and defeated Thompson at the polls in 1948.⁶

The call about a judgeship

Elliott remained a Talmadge ally. He served as Herman's legislative floor leader and became a Democratic national committeeman. In 1948 he opposed Truman's civil-rights program, including federal action against lynching and the poll tax. He supported Richard Russell for the Democratic presidential nomination and then supported the Dixiecrats. His racial politics were part of his public record well before he put on a robe.⁷

Fifteen years after the succession fight, Herman was a United States senator. According to Emory's Georgia Civil Rights Cold Cases Project, he called Elliott about a federal judgeship and gave him his endorsement. Elliott had never been a judge. He had, however, been a lawyer, legislator, party official, and dependable political ally.⁷

The connection did not eliminate the other people required to make an appointment. John F. Kennedy nominated him on January 23, 1962. The Senate confirmed him on February 7, and his commission followed on February 17. This was a Kennedy appointment to the Middle District of Georgia, not an office Herman could award by himself.³

Nor did Black legal opinion line up uniformly. Emory's account identifies the veteran Atlanta lawyer A. T. Walden among those who supported Elliott. C. B. King, the Albany civil-rights lawyer, opposed him. King would soon have to seek relief in the court of the man whose appointment he had resisted.⁷

Herman's sponsorship helped Elliott reach a position whose authority would outlast the next election. The people coming before his court had not chosen him.³⁷

The people before the bench

In Albany, Black residents were trying to use lunch counters, libraries, recreation facilities, and transportation without segregation. The movement brought together local organizers, lawyers, and demonstrators; Martin Luther King Jr. joined it, but the struggle did not begin with his arrival. Mass arrests had already made going to jail part of the campaign.⁷

In July 1962, city officials went to Elliott for an order against the movement's demonstrations. Their argument turned the equal-protection guarantee toward the white public: demonstrations required police attention, closed stores, and obstructed streets. In Taylor Branch's account, cited by Emory, Elliott treated the diversion of police from white neighborhoods as a denial of equal protection to white citizens. His temporary restraining order gave the city another means of stopping the campaign.⁷⁸

The movement's lawyers took the fight upstairs. Chief Judge Elbert Tuttle of the Fifth Circuit dissolved the temporary order. That did not settle every dispute between the city and the movement. Litigation continued over the right to march, picket, and assemble, and over the city's claim that it was maintaining order. In 1964, the Fifth Circuit vacated the judgment denying relief in the movement's protest-rights case and sent it back for further proceedings. The court affirmed a separate judgment denying the city's request for an injunction.⁸

For the people seeking access to their own city, those distinctions had practical consequences. An order could halt a demonstration now; an appeal could require another round in court before their claims were resolved. C. B. King and Donald Hollowell were not arguing an abstract question about Elliott's politics. They were trying to obtain relief for clients who had to live under the decisions.⁷⁸

Twelve years later, Elliott considered the constitutional claims of a very different petitioner. Lieutenant William Calley had been convicted by a court-martial of the premeditated murder of at least twenty-two Vietnamese civilians at My Lai and assault with intent to murder a child. The case concerned particular killings in a massacre, not simply an officer's failure to control his men.⁹

On September 25, 1974, Elliott granted Calley's petition for habeas corpus and ordered his immediate release. He found defects involving pretrial publicity, requested witnesses, congressional testimony withheld from the defense, and the adequacy of the charges. His ruling concerned the fairness of the proceedings, not Calley's innocence.⁹

On September 10, 1975, the Fifth Circuit reversed him and reinstated the court-martial judgment. The appellate court held that Calley had received a fair trial and that his constitutional and fundamental rights had not been violated. By then the Army had granted him parole. Reinstating the judgment therefore should not be confused with a simple account in which Elliott freed him and the appeals court sent him straight back to prison.⁹

In Albany and in Calley's case, Elliott's orders changed what could happen while an appeal was pursued. The Fifth Circuit could reverse him, but the people affected first encountered the authority of his courtroom.⁷⁸⁹

Elliott retired on December 31, 2000, the day before his ninety-first birthday. His federal service had lasted nearly thirty-nine years. The governorship he helped secure for Herman in January 1947 had lasted about two months. The judgeship that followed their long political association lasted through the end of the century.³⁶