United States v. State of Louisiana

265 F. Supp. 703

Opinions

WISDOM, Circuit Judge.

In October 1963 the United States filed the original complaint challenging the constitutionality of the Louisiana application form as a test or device in determining the qualifications of applicants to register for voting.¹ The court heard the case November 30, 1964. Important events affecting the litigation have occurred since then.

In June 1965, the State of Louisiana revised its form of Application for Registration. August 6, 1965, Congress adopted the Voting Rights Act of 1965. On that same day, in accordance with Section 4(b) of the Act, the Attorney General of the United States determined that the State of Louisiana had on November 14, 1964, maintained a test or device within the meaning of the Act; the Director of the Census determined that less than 50 per cent of the persons of voting age residing in Louisiana voted in the November 3, 1964, presidential election. In August, the Attorney General of the United States certified that in his judgment the appointment of examiners was necessary to enforce the guarantees of the Fifteenth Amendment in East Carroll, East Feliciana, West Feliciana, Ouachita, and Plaquemines Parishes, Louisiana. Federal examiners entered on duty in each of these parishes and, except in Plaquemines Parish where the operation was suspended for a period of time, because of natural disaster, they have performed their duties under the Voting Rights Act of 1965 until the present time. By the end of November, the examiners in the five parishes had listed approximately 13,258 persons as eligible to vote and had certified and transmitted the names of these persons to the, respective parish registrars, who under the Voting Rights Act, have the duty -.to place these names on the official parish and municipal voting lists.

In three of the parishes — East Carroll, Plaquemines, and Ouachita — certain of the defendants filed suits in State courts ² to enjoin the local registrars of voters from placing the names of persons listed by federal examiners on the official voting lists. In each instance the injunctions sought were entered. The registrars of voters in all five parishes where examiners are operating — East Carroll, East Feliciana, West Feliciana, Plaquemines, and Ouachita — refuse to place on the official voting lists of their respective parishes and municipalities the names of the persons certified and transmitted to them by the federal examiners.

November 15, 1965, the United States filed its Supplemental Complaint bringing before the court the changes in the law that occurred after this case was originally submitted and the events which followed those changes. The Supplemental Complaint requests that the defendants and their agents be restrained from (a) failing to place on the official voting lists the names of persons/Certified and transmitted by federal examiners, (b) complying with or giving force or effect to the state court injunctions, and (c) giving any force or effect to Louisiana statutes or constitutional sections which would prevent official listing of persons certified by federal examiners.

The defendants admit that they will continue to refuse to place on the official voting lists persons certified in the five parishes where examiners are operating — East Carroll, East Feliciana, West Feliciana, Plaquemines, and Ouachita. They contend that the principal operative provisions of the Voting Rights Act are unconstitutional, and in the alternative that the Director of the Bureau of Census, the Attorney General of the United States, and the Civil Service Commission have, in the event the Act is constitutional, misconstrued and misapplied its terms. The case was heard by this Court on December 21, 1965, and briefs were submitted by December 31, 1965.

At the time, the constitutionality of the Voting Rights Act was at issue in State of South Carolina v. Katzenbach, 1966, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed. 2d 769, then pending before the Supreme Court. The State of Louisiana and several other states participated in the proceeding as friends of the court. March 7, 1966, the Supreme Court announced its decision, holding certain provisions of the Act to be appropriate, constitutional means under the Fifteenth Amendment for carrying out the purposes of that amendment.

No facts peculiar to South Carolina or to Louisiana would alter the result reached as to the constitutionality of the particular sections³ of the Voting Rights Act the court considered. . This is clear from frequent references by the court to arguments proposed by States participating as amicus curiae, by absence of reference to unique factual considerations existing in South Carolina,⁴ and by the broad sweep of the language employed by the Court in discussing the issues (see particularly 383 U.S. at 327-337, 86 S.Ct. 803).

As we read the State of South Carolina v. Katzenbaeh, the Supreme Court considered and rejected the States’ argument on the following issues the defendants raise in the instant case:

(1) The Voting Rights Act of 1965 exceeds the power of Congress and encroaches on an area reserved to the States by the Constitution * * * (383 U.S. at 323-329, 86 S.Ct. 803)

(2) Suspension of tests and devices for five years is inappropriate * * * (383 U.S. at 333-334, 86 S.Ct. 803)

(3) The formula provision is inappropriate legislation⁵ * * * (383 U.S. at 329-333, 86 S.Ct. 803)

(4) Appointment of federal examiners is inappropriate * * * (383 U.S. at 335-337, 86 S.Ct. 803)

(5) The formula provision violates the principle of equality of States, denies due process by employing an invalid presumption and by barring judicial review of administrative findings, constitutes a forbidden bill of attainder, and impair the separation of powers by adjudicating guilt through legislation * * * (383 U.S. at 323-324, 86 S.Ct. 803)

(6) Limiting litigation to the District Court for the District of Columbia is inappropriate * * * (383 U.S. at 331-335, 86 S.Ct. 803)⁶

(7) The non-review provisions of the Act are arbitrary and deprive the States of due process * * * (383 U.S. at 323-337, 86 S.Ct. 803)

(8) The Director of the Bureau of Census and the Attorney General have misconstrued and misapplied the formula provision and the voting examiner provision * * * (383 U.S. at 323, 332-333, 335-337, 86 S.Ct. 803)

(9) The challenge procedure is arbi- ■ trary * * * (383 U.S. at 334-335, 86 S.Ct. 803)

The only issues remaining relate to the defendants’ contentions that the Voting Rights Act was maladministered in Louisiana with respect to:

1. Administrative procedures for obtaining identifying data, and

2. Age and residency requirements for registration.

The Louisiana procedures for identification of applicants for registration are not in conflict with the Voting Rights Act. “The applicant shall in all cases be able to establish that he is the identical person whom he represents himself to be when applying for registration. If the registrar has good reason to be lieve that he is not the same person, he may require the applicant to produce two credible registered voters of his precinct to make oath to that effect.” LSA-R.S. 18:37. See also La.Const.1921, art. 8, § 1(e). As long ago as 1952, however, Judge Gaston Louis Porterie held that the identification procedure could not be used in an arbitrary or discriminatory manner to prevent Negroes registering to vote; the court granted an injunction against a registrar of voters requiring him to register the Negro plaintiffs. Byrd v. Brice, W.D.La., 104 F.Supp. 442, aff’d 5 Cir., 201 F.2d 664. The defendants have not proved that the United States and its agents failed to observe the Louisiana statutory requirements as to identification of applicants.

We find that the United States and its agents correctly applied the Louisiana law relating to age requirements, but incorrectly applied the Louisiana law relating to residence requirements. LSA-R.S. 18:36. The agents approved the residential requirements of applicants who would be eligible to vote on the date of the next election rather than on the date of the application. In other respects, the United States and its agents properly administered the Voting Rights Act of 1965 and the uncontested provisions of Louisiana law not in conflict with the Voting Rights Act.

In granting the relief prayed for we have ordered election commissioners to give assistance to voters who are unable to read and write. Louisiana now allows and has always allowed illiterates to vote. Until 1960 Louisiana law provided that a voter “unable to read and write, shall receive the assistance of a commissioner of his own selection in the marking of his ballot”. LSA-R.S. 18:350. In 1960, as one of a bundle of segregation statutes, the Louisiana legislature enacted Act 499 amending Section 350. This amendment provides, in part, “The inability to read or write shall not entitle a voter to assistance in the casting of his vote”. This stultifying provision conflicts with the Voting Rights Act of 1965. The Act provides for the suspension of literacy tests in states which have used such tests as a discriminatory device to prevent Negroes from registering to vote. Like any other law, this provision implicitly carries with it all means necessary and proper to carry out effectively the purposes of the law. As Louisiana recognized for 150 years, if an illiterate is entitled to vote, he is entitled to assistance at the polls that will make his vote meaningful. We cannot impute to Congress the self-defeating notion that an illiterate has the right pull the lever of a voting machine, but not the right to know for whom he pulls the lever.

We hold the Voting Rights Act of 1965 constitutional, hold the challenged provisions of Louisiana law unconstitutional, and grant the injunction, in accordance with the following order.

ORDER

This matter came on for a hearing on the merits of the application of the United States for a permanent injunction. The court makes the following findings:

(1) Sections 2, 4(a)-(d), 5, 6, 7, 9,. 12(d), 12(f), 14(b) and 14(c) of the Voting Rights Act of 1965 are an appropriate and constitutional means for carrying out the Fifteenth Amendment and the constitutional responsibilities of Congress.

(2) The provisions of Article' VIII, Sections 2 and 18 of the Constitution of Louisiana and Sections 31(2), 32, 36 and 191, subd. A of Title 18 of the-Louisiana Revised Statutes are suspended insofar as they prescribe tests and devices defined in Section 4(c) of the Voting Rights Act of 1965.

(3) The State Courts of Louisiana do not have jurisdiction to enjoin execution of any provision of the Voting Rights Act of 1965. Accordingly, writs of injunction entered by the state courts against the parish registrars of voters are null and void.

(4) The United States and its agents-correctly administered the Louisiana age requirement by accepting for registra tion persons who would be 21 years old by the date of the next election;

(5) The United States and its agents incorrectly administered the Louisiana residence requirement by listing persons who would be residents of the State for one year, the parish for six months, the •municipality for four months, and the precinct for three months by the date of the next election, instead of using the date of the application for listing as the ■critical date.

(6) In all other respects the United ’States and its agents properly administered and applied to the State of Louisiana the contested sections of the Voting Rights Act of 1965 and the uncontested provisions of Louisiana law.

It is hereby ordered, adjudged, and decreed that the defendants and their agents, including parish registrars of voters and all parish, municipal and state primary and general election officials and their officers, employees, and successors, and all those in active concert and participation with them, be and hereby are permanently enjoined from:

a. Failing to place upon the official registration rolls or voting lists of the respective parishes the names of all persons heretofore or hereafter certified .and transmitted by federal voting examiners as the names of persons eligible to vote;

b. Complying with or giving any force or effect to the writs of injunction •entered against the parish registrars of voters or other local election officials by the Louisiana Courts enjoining said officials from giving full force and effect to the lists of eligible voters transmitted to them by the examiners;

c. Failing to provide at the polls during each federal, state, parish, and municipal election held in the State of Louisiana, including all primary elections, assistance to each voter who because of inability to read or write needs assistance in the operation of any mechanical voting device or in marking his ballot so that his vote be properly east for the candidates and issues of his ■choice.

It is further ordered that the United States and its agents reexamine the application forms of all persons listed by federal examiners and inform by mail or otherwise those persons who had not resided in the state, parish, precinct, and municipality for the required length of time as of the date of application for listing that they are ineligible to vote. In determining the appropriate action to be taken the United States should employ the following criteria:

(1) Each applicant who has met the State of Louisiana residence qualifications as of the date of this Order, or who otherwise qualifies under the thirty-day provision of Section 16, Article 8 of the Louisiana Constitution, will not be required to reapply and will be considered as registered or listed to vote as of the date upon which he was originally' listed.

(2) Each applicant who has not met the State of Louisiana residence qualifications as of the date of this Order and does not otherwise qualify under the thirty-day provision of Section 16, Article 8 of the Louisiana Constitution will be removed from the list of eligible voters and notified of the revocation of his certificate of eligibility, the reasons therefor, and the date upon which he could become eligible to reapply for registration or listing. Such persons should also be notified that they may appear before an examiner to show cause why they should not be reinstated and deemed listed as of the date of the original listing of their names.

A list of the names and addresses of all applicants for listing recontacted and a statement of action taken and the rea- • sons therefor shall be filed by the United States with this court and submitted to the State of Louisiana and the appropriate parish registrars of voters. Persons named on this list and persons reinstated at least five days prior to the next election, unless removed from the eligibility list by the United States pursuant to, this Order or later purged in accordance with generally applicable federal and state law, shall be eligible to vote in all elections for which they are otherwise eligible held in the parish and municipality of their residence.

This court retains jurisdiction of this cause for the purpose of issuing any and all additional orders which may become necessary and appropriate and awards costs to the United States.

Footnotes

1

. The United States alleged anjl offered proof to show that (1) the fojm was applied initially only to Negroes, (2) Negroes were failed for insignificant errors while white persons were either provided assistance or were passed even though they made the same or similar errors as the Negroes who were rejected, and (3) that the form was not a reasonable test of literacy, but was designed and used to discriminate against Negroes, particularly in the age computation, preamble, householder, and have/have not sections of the form. These allegations have already been thoroughly briefed by the parties and the arguments presented will not be rehashed here. The additional relevance of that proof is that it alone would sustain the “appropriateness” of the Voting Rights Act of 1965.

2

. The plaintiffs and defendants in the three state court actions have been made named defendants in this action. They are as follows: Plaintiff — The State of Louisiana by Jack P. IT. Gremillion, Defendant — Cecil Manning (East Carroll); Plaintiff — L. H. Perez, Jr., Defendant —Roy Lyons (Plaquemines); Plaintiff— Alvin P. Lassiter, Defendant — Mae Lucky (Ouachita).

3

. Sections 4(a)-(d), 5, 6(b), 7, 9, 13(a), and certain procedural portions of 14 (see 383 U.S. at 315-317, 86 S.Ct. 803).

4

. To the contrary, most of the fact-finding of Congress and of the Supreme Court relates to situations in Alabama, Louisiana, and Mississippi.

5

. Louisiana has argued that the coverage formula is uniquely inapplicable and arbitrary as applied to it because it has the highest percentage of illiterates of any state and yet had 47% of its electorate turn out and cast a vote for Presidential candidates. (Louisiana advanced this same contention in its amicus curiae brief and argument before the Supreme Court.)

South Carolina also argued that the coverage formula disregards various local conditions which have nothing to do with racial discrimination (383 U.S. at 329, 86 S.Ct. 803). The Court, noting that South Carolina is a State in which there was “fragmentary evidence of * * * discrimination” (Ibid.) ; nevertheless found the formula to be legitimate and rational. It buttressed its finding, in part, upon the fact that the formula imposing the remedies of the Act reaches Alabama, Louisiana, and Mississippi — “three States * * * in which federal courts have repeatedly found substantial voting discrimination.” (Ibid.) The Court concluded: These arguments, however, are largely beside the point. Congress began work with reliable evidence of actual voting discrimination in a great majority of the States and political subdivisions affected by the new remedies of the Act. The formula eventually evolved to describe these areas was relevant to the problem of voting discrimination, and Congress was therefore entitled to infer a significant danger of the evil in the few remaining States and political subdivisions covered by § 4(b) of the Act. No more was required to justify the application to these areas of Congress’ express powers under the Fifteenth Amendment.

6

. The Supreme Court considered the constitutionality of § 14(b) and found it to be legitimate and appropriate (383 U.S. at 331-335, 86 S.Ct. 803). It follows that the State Courts in Plaquemines, East Carroll, and Ouachita Parishes lacked jurisdiction to issue injunctions. Their orders are void.