United States v. State of Mississippi

America, UNITED STATES Plaintiff, al., et OF MISSISSIPPI

STATE Defendants. No. 3312.

Civ. A. District Court States Mississippi, D.S.

Jackson Division.

March 1964.

Dissenting Opinion March April 9,

Concurring Opinion Jurisdiction

Probable Noted June See 84 S.Ct. 1920. try Kennedy, Atty. makes a frontal F. attack Robert Gen. member, S., Hauberg, Atty., U. U. Robert E. S. “Indestructible State” seeking Doar, Washington, Mississippi, Jackson, Miss., enjoin the en- John C., of certain laws for the forcement State D. United States. defining qualifications “elec- Badon, Gordon, Liberty, T. F. D. Joe tors” who shall vote elections Miss., Joseph Drake, Gibson, Miss., Port president president and vice of the Unit- Porter, Jr., Luckett, Semmes Leon Congress. ed members of States Clarksdale, Curtis, Miss., Chester Au people and its brey Bell, Hardy Greenwood, Miss., Lott, have, in the Constitution of 1890 and Sams, Burgin, Jr., Jr., J. O. William thereafter, enacted constitutional Jolly, Miss., Columbus, H. B. W. D. statutory provisions covering the whole Statham, Miss., Magnolia, Joe T. Pat choosing of of such “electors”. The field terson, Atty. Dugas Mississippi, Gen. of States to seeks down some strike Shands, Atty. Mississippi, Asst. Gen. upon of these enactments the that claim Clark, Jackson, Miss., Charles for de they the violate and Fif- Fourteenth fendants. Constitution, teenth Amendments of the BROWN, and CAMERON Before they rights deny in that certain to Ne- Judge. Judges, COX, District and Circuit groes pre- race, of their color because hold vious condition of servitude. We Judge: CAMERON, Circuit that, pleadings, the the face of the from action, “Indestructible the In this partnership which suc- strike them down member of the effort to Union” government of this eoun- constitutes the ceed.1 by 1. This Court had of the and met two occasions certain defendants parties. depositions, with but had counsel the various a number of taken completed discovery meeting procedures. On the first we extensive had pretrial right, hearing during claiming exploratory and defendants were the The large lawyers which the de- number of and if their motions to dismiss were begin generally ques nied, the Court their and to discussed the discoveries reg- presented procedural depositions tions the of each of the and the means take by they approached. which or of istrars the State of could best be general registrars. prior appeared There was discussion about the further involved, discovery pro pleadings issues the no matters outside the had use of that presented Court, cedures and no mo- and tentative been to the that matters which, summary judgment by orders Rule were under entered the ac here, inoperable. 12(e) propriety tion taken had been made are rendered or the change suggested, personnel After a of it and that no affidavit the the Court, hearing which another affidavits had been filed with counsel was counter argument complied requirements held and full of Rule was with the invited litigant procedures 12(c) urged and 52 further each F.R.Civ.P. It was the thought interrogatories he been found that had desirable. The defendants filed, prior answers, had and attor- to their answered sworn various num- plaintiff attacking neys ber of motions and forth the constitu- set tionality investigations of their were some of results the statutes re- upon up legal plaintiffs given lied or factual conclusions when made hearsay placed other- evidence or were constructions on them plaintiff; inadmissible in and each wise evidence. defendant had filed a motion to concluded that be claim We case could dismiss the expe- him, ground it or and decided much on the heard more the com- ditiously by considering complaint plaint claim, failed to state a well-pleaded averments, stripped all jurisdiction Court did not have opinions legal conclusions, as fac- subject parties matter or of some tually true and could reach a decision and had moved heard legal principles keeping accepted advance of trial on the merits. justice parties as and could do Following argument and after completely as if the an- the contents of correspondence Judges, between the two interrogatories deposi- swers and the additional conferences were had. The should be considered. tions plaintiff large had pressed answered in volume The defendants have their mo- interrogatories propounded dismiss, claiming to them tions I. Act of I960.5 The other defendants are three members the Miss. State America filed United States Commissioners, Board Election invoking complaint jurisdiction registrars county regu (the six of voters provisions Court under of 42 this lar]y elected Clerks Circuit of their re 1345,3 1971(d),2 28 U.S.C. U.S.C. § § spective counties). Mis and 28 2281.4 The State of U.S.C. § sissippi joined party as a defendant complaint filed under the au Rights pursuant 601(b) of the Civil thority 1971(a)-(e).6 of 42 U.S.C. § hoard trial on merits on before such execution such statute or of an or- grounds complaint failure of der made an administrative board or claim, nonjurisdiction acting statutes, commission under State subject parties, or the like granted by any matter shall not be court district questions. posi- concluded that judge ground We thereof tion was sound and justice the interest of unconstitutionality statute unless disposed and have therefore application therefor heard and pleadings, the case on the having rejected face determined three district court of depositions judges all of the under section 2284 of title. interrogatories answers 646, 62 June c. Stat. 968.” (although thereto none them were “Whenever, proceeding in a instituted presented ever offered evidence or any under this subsection official of a Court). the alleged or subdivision State thereof is We think is not conflict with any practice have committed stituting act or con- Conley Gibson, such cases v. 365 U.S. deprivation any right of or Compare 2 78 S.Ct. L.Ed.2d 80. privilege by (a) secured subsection of KVOS, Press, Inc. Associated 299 section, practice the act or also shall 269, 278, 183; U.S. Battaglia 81 L.Ed. be deemed that of the State and the State Corp., v. General Motors joined may party and, as a defendant Cir., 169 F.2d certiorari denied 335 if, prior pro- to the institution of such 425; U.S. S.Ct. 93 L.Ed. ceeding, resigned such official has or has Coleman, Flanders v. been relieved of office his and no suc- 948; 63 L.Ed. Rhode Island office, pro- cessor has assumed such Massachusetts, 657, 659, 12 Pet. ceeding may be instituted 657, 659, 9 L.Ed. 1233. (Now part State.” of 42 U.S.C. Voting rights Race, color, 2. “1971. or — (c)). previous right condition not to affect * ** “(a) to vote All citizens of the United States “(d) qualified by The district who are courts of the otherwise law jurisdiction any proceed- by people States shall have of vote at election ings pursuant any State, county, Territory, district, instituted to this section city, parish, township, district, and shall exercise the re- school same without gard municipality, party aggrieved to whether the or other sub- shall territorial any division, have exhausted shall administrative or be entitled and allowed provided by elections, other remedies that to vote at all without race, 637, Sept. color, previous [71 law. Stat. distinction of or 1957.]” servitude; any constitution, of condition plaintiff 3. “§ 1345. United States as law, custom, regulation usage, any or “Except provided by as otherwise Territory, State or thority, or or under au- its Congress, Act of courts district shall contrary notwithstand- original jurisdiction have of all civil ac- ing. tions, proceedings suits or commenced threats, “Intimidation, or coercion States, by any agency the United or or person, “(b) acting No whether under expressly officer thereof authorized to otherwise, color lawof or shall intimi- Congress. 25, 1948, sue Act of June date, threaten, coerce, attempt or in- c. 62 Stat. 933.” timidate, threaten, any or coerce Injunction against 4. “§ 2281. person purpose interfering enforce- for statute; three-judge ment of State person court with the of such other required may choose, vote or to vote as he or interlocutory permanent “An causing person for, in- such other vote junction restraining op- enforcement, for, any vote candidate for of- any eration President, President, presiden- execution of State stat- fice Vice by restraining elector, ute Senate, action of- tial Member or Mem- ficer Representatives, of such State the enforcement ber of the House past perpetuate dis- validity which It attacks ; govern crimination and statutes which Constitution voting. four registration It contains public edu- where “3. State words, plaintiff’s these In the claims. and been facilities are cational follows: described as

claims are segregated racially those for Complaint claim the “The first inferior, interpre- Negroes validity Section attacks re- a direct test which bears tation Constitution, public quality edu- lation to adopted since in 1955 and used Fifteenth violates cation Amendment; throughout registrars Mis- time pre- provides sissippi, as a which vague “4. Section registrations per- requisite objective provides standards for give read and write sons must administration; its interpretation sec- reasonable no reasonable “5. There Mississippi Constitution tion of the part legitimate on the interest duties and a statement of the pre- requiring obligations citizenship the local voting in- requisite for that citizens registrar provided county form on a legal terpret certain of Com- the State Board Election hyper-technical provisions of Complaint attacks missioners. Mississippi Constitution. implementing Section following grounds: legislation Complaint claim of “The second unlimited “1. Section 244 vests of the Missis- 241-A attacks Section registrar discretion sippi enacted Constitution light setting politi- of its of white applicants provides segre- racially supremacy good and a registration cal shall moral gated society alleges it is an unconstitu- Complaint character. tional device groes ; disfranchise Ne- provision is this constitutional registration because, is invalid since imposes exempts permanent, “2. Section 244 new most of stringent requirements Mississippi for more from white citizens in registration long period following provides requirements. also regis- objective racial in discrimination no reference which exempts county registrar may process, tration from determine requirement good the new most of the thus so moral character and citizens, vague permit white the inevitable effect as to indefinite Delegates any proceeding or from the Commissioners other order. In here any possessions, gen- Territories or at under United States shall be liable eral, special, primary private per or held election for costs tlie same as a solely part purpose Whenever, proceeding in of se- or for the in a son. insti lecting electing any any or candidate. such injunction; under tuted subsection official costs; relief; “Preventive aof State or subdivision thereof al party leged any defendant to have committed act or “(c) any person practice constituting deprivation has en- Whenever grounds gaged any right privilege or there are reasonable or secured sub any person (a) section, is about to believe section of this or act engage practice act or would which practice shall also bo deemed that of any right deprive person joined may be the State and the State (a) jirivilege secured subsection and, party if, prior aas defendant Attorney (b) section, of this Gen- proceeding, such of institution States, may eral institute for the United resigned relieved ficial has or has been States, a or in the name of the United has as of his office and no successor proceeding proper civil action or other may office, proceeding sumed such ap- preventive including relief, for [74 State. Stat. tempo- instituted plication permanent for 6, rary restraining order, 90, May injunction, 1960.]” reject registrars arbitrarily tion as the other Ne- laws under provides objective attack stand- gro applicants. ards for its administration. claim the va- third attacks “The requested by Unit- “The relief lidity Mississippi en- statute ed States is a declaration of in- regis- permits acted validity 241-A 244 and Sections registration destroy records. trars to Mississippi of the Constitution Congress Title III enacted legislation implementing of both Rights requiring Act of the Civil provisions, the destruction records registrars county pre- to retain and legislation, and four bills very under serve the records which legislation package enacted permitted law to be vitiating injunction 1962. An destroyed. effects of invalid “The claim in the Com- fourth practices laws is re- thereunder legisla- plaint package attacks a quested. [Actually complaint leg- by Mississippi adopted prays mandatory injunction for a shortly islature after the Court setting up court state voter created Appeals is- for Fifth Circuit registration qualifications Ne- injunction April sued an on groes only requiring defend- forbidding registrar in Forrest qualifications ants to registering use such engaging County, Mississippi, from Negroes apply who regis- discriminatory practices after the date of such an order.] voting. legislative tration for This requests Plaintiff also the court to package included Bills House legis- find that the of the use invalid 903, 822, 1962, cc. 904 [Laws Negro deprived lation has citizens 571, 572, requires H.B. 900 573]. vote account registration applicants com- deprivations their race and that the plete letter-perfect application pursuant pattern to a been form without qualify order assistance in practice of racial discrimination. register. pre- H.B. sought finding This in mo- to set registrars advising ap- vents 1971(e) tion 42 U.S.C. Civil plicants registration Rights Act of 1960.” applicant rejected, reason such because would constitute assist- II. applicant. ance to 822 and H.B. Each dismiss defendant has moved to provide publication 904 for of the complaint a claim for failure to state registration, applicants names of granted on relief could be and the require applicant an to an ex- wait Registrars of who are defendant voters period tended even he before deter- non-residents of district have moved registered mines he whether jurisdic- to dismiss tion; of for want venue registration, any permit denied Registrar the defendant of Clai- qualified challenge elector to County has for dismissal borne moved qualifications any applicant of whose having to transfer the division published. package name This jurisdiction county. venue of her Each legislation arbitrary is attacked as Registrar defendant moved for has also exempts and unreasonable. It from separate sup- a severance and No trial. provisions most of the white porting or counter affidavits were or presently citizens because are have been filed. Answers been filed registered unques- to vote and its by all defendants. impose tioned effect is to more bur- stringent requirements densome III. registration persons reg- ruling elementary It is that in prior legisla- istered dismiss, 1962. The on the motions the Court

932 substantially IV. de treat them must sufficiency legal testing the alleges murrers Complaint fol- further must complaint. assume The Court registrars lowing All as facts: voters facts, well-pleaded complaint’s Mississippi all at least the State of since conclusions, distinguished de In white citizens. 1892 have been law, as estab and averments ductions registrars, the defendant counties motion.'7' purpose of the for the age lished voting population statistics on the answers of the defendants Negro Neither persons ap- and white and the discovery procedures part registration proximate nor each race voter as follows: considered.8 should be WHITE NEGRO Age Regist Voting Age Registration Population Voting Population ration 1 4449 2560 Amite 3295 1371 8708 8376 14604 Coahoma 3969 138 1688 1440 Claiborne 16460 8362 63 Lowndes LeFlore Pike vote; register adoption time of Mis- literate Ne- At the lowed sissippi required interpret groes were sections Constitution of 1890 there were substantially Negroes Constitution; Mississippi more than whites Negroes Mississippi. By 1899, approximately excluded from Democratic were 122,000 time, During primary the white males elections. 82% voting age 18,000 victory primary in Ne- in the Democratic 9% age gro voting registered Mississippi males of to election. were was tantamount higher By percentage Mississippi. vote a much Since Negroes voting age majority persons substantial of white voting age reaching have were literate than in 1890. registered per- become voters. 1952, proposed amendment Sec- registered centage Negroes vote Constitution, providing 244 of the declined. prerequi- future, it would becoming person ap- During 1899 to period from site to elector Negroes not al- able write section proximately to read and were 651, purpose Hardyman, of bill. For tions of the 341 U.S. v. 7. Collins motion, 1253; 937, Halliburton the facts set forth L.Ed. 71 95 S.Ct. purpose Cir., Drilling Co., For 302 bill admitted. stood Co. v. Norton motion, practice court was confined treats such of Modern F.2d 431. liberty every performing of and not at to office to the bill was motions demurrer, unhampered evi- or the other consider the affidavits but as the former upon application produced by The rules. Com dence of its technical interlocutory injunction.” light Co. v. plaint most Polk an viewed in a must be Glover, 5, 15, plaintiff. L.Ed. U.S. 59 S.Ct. to the favorable rejection conclusionary 6; of as to the law, Newport allegations fact of and see the ease to not submit

8. “Plaintiffs did Dry Shipbuilding bill, upon v. & Dock Co. an- News merits decided 54, 466, Schauffler, mo- 303 U.S. S.Ct. Defendants’ swers affidavits. Hughes, 646, dismiss, and Snowden demurrer 82 L.Ed. like the tion to 497; 29, 397, (Equity 88 L.Ed. Rule it is a substitute Buck, 723) following was Gibbs section 28 U.S.C.A. allega- sufficiency L.Ed. of to the addressed Mississippi 20,000 per 25,000, Constitution and demon- or five cent of the to Negroes voting registered understanding age of strate reasonable were to obliga- section the duties vote. by citizenship, tions of was defeated register- approximately 525,000 Of the voters. eligible Mississippi ed in voters who were per 450,000 proposed In at least or 63 cent to vote on the add- amendment age ing persons voting Mississippi in 241-A the white Section registered Mississippi Constitution, per In were to vote. about 95 cent were white; approximately per 22,000 per five fewer than cent were Negroes Negro. voting age adopted cent of the in Mis- The was amendment registered sissippi were to a state all vote. where state officials were white. Supreme In after the Court had seg- operation racially declared The filed state suits United States regated unconstitutional, county registrars schools white voter several parties Ap- citizens councils—not this ac- the action taken to the Court of issuing peals injunction against Mississippi. tion —were The formed organizations Lynd, Regis- purpose T. C. of these Circuit Clerk and segregation County, Mississippi, trar con- maintenance racial Forrest cerning registration supremacy Mississippi. voter white discrimina- tion, project were first matters of common knowl- statewide undertaken edge throughout organizations attempt Mississippi. these was the Mississippi induce the white voters of registration application forms, Some adopt proposed to Section amendment including some forms received de- Mississippi 244 of the Constitution Whittington fendant H. K. in Amite County, Mississippi, destroyed. have been register- 472,000 approximately Of the early Negro In late 1961 and eligible Mississippi ed voters in who were organizations citizens and conducted a proposed vote amendment registration Mississippi voter drive in ninety-five per about cent were purpose increasing for the number white; per fewer than five cent were Negroes eligible to vote in Negro. adopted amendment was Mississippi primary For elections. public where education facil- many Negroes years first time in were racially segregated, ities were representa- candidates for the office provided and where such facilities Congress tive of the United States. Negroes and are were inferior those widely publicized These were facts provided persons. for white knowledge and were matters of common throughout registrars, Mississippi. Since the defendant many registrars as well as in Mis- V. sissippi requirements have enforced the amended, of groes Ne- Section when support of its motion to dis register attempted vote, miss, the State contends Negroes requiring interpret sec- 601(b) Rights that Section of the Civil tions Constitution and applied Act9 is unconstitutional as to it. understanding their demonstrate position Its is that the Fifteenth Amend obligations citizenship the duties ment forms the for 42 basis U.S.C. prescribed by on the form the State 1971,10 that and this amendment is Board of Election Commissioners. through persons directed to whom a state may sovereign entity 1960, approximately 500,000 act and not to In the or 67 per voting persons of the state The State of Missis of the itself. cent white legislation age sippi Mississippi, approximately also all contends and Raines, 362 10. See United States v. Note 5. See 519, 4 80 S.Ct. L.Ed.2d :934 parte reasoning Congress implement Ex Vir- may to This choose

(cid:127)which recently approved subject ginia to has been Amendment is Fourteenth (cid:127)the ;13 States Cooper in United Aaron and objection. supports v. these It same the Amend- Raines,14 to the Fifteenth au- as numerous v. citation of contentions v. Poindexter appear In the case to ment. contentions These thorities.11 Supreme said: Greenhow,15 Court present the constitutional a substantial us 8, supra. Buck, Note claim. Cf. Gibbs v. ques- of such “In discussion Supreme parte Virginia,12 the Ex tions, between the distinction the fol used the United States Court of government state and the of a state lowing language: important, be and should is itself “They proscriptions speech of the In common [the observed. reference usu- apprehension 14th are Amendment] common body identical; political ally regarded denom- as actions State, by govern- ordinarily instru- a whatever inated the acts ac- state, or in whatever modes be- ments acts of the are the ment A acts State taken. the limits of its dele- cause within legislative, government gation power, or its its its executive judicial generally It can act in authorities. confounded the state is * * * way. Whoever, itself, and often the with state public position under a is virtue of the latter former is meant when deprives government, another is an State The state mentioned. itself invisible, property, life, liberty, person, intangible, without ideal law, government process of or takes due denies immutable. The away equal protection sphere agent, and, within the representa- laws, perfect in- agency, violates constitutional ; tive; that, he acts the name hibition and as but outside of State, usurpation. and for the is clothed constitu- lawless power, act is that State’s his tion of the state is the limit authority * * * government, the State. of its government sub- both and state are “But the constitutional amend- ject supremacy of consti- purpose. ment was for a ordained States, tution of the United rights equal was all secure pursuance the laws made in thereof. persons, and, persons to all insure respect that, while it is So true enjoyment rights, power of such government state, was Congress given to enforce its Langford S., said in 101 U.S. U. legisla- provisions appropriate (Bk. 1010), 25 L.Ed. legislation upon must act tion. Such persons, king maxim, can do no that “the thing upon the abstract wrong” system place has no in our State, but denominated government; true, yet it is also agents persons who itself, respect rights denial of wrong attempted in whatever which were intended to secured." govern- imputable name is to its [Emphasis added.] Appeals tlie Fifth Supreme E.g., States Court Circuit, States United Maryland, most of which is recent of: M’Culloch v. cases Board 579; Parish School St. Helena v. Bank 4 L.Ed. Osborn Wheat. Hall, States, 287 F.2d 376. L.Ed. Wheat. of United White, 204; Wall. Texas v. 11, supra. 12. Note 227; parte Virginia, Ex 100 U.S. L.Ed. 676; Green Poindexter v. 25 L.Ed. 1401, L.Ed.2d 5. 78 S.Ct. 13. 358 U.S. how, L.Ed. 114 U.S. Young, 185; parte and Ex 10, supra. 14. Note 714; L.Ed. 11, supra. opinions 15. Note from the number leged state, for, and Fif- violations Fourteenth ment, the and not to rights only by law, caused speak teenth Amendment what- and act can Action,” despite provisions of say the law- “State do must be it does and ever equally ap- Amendment, therefore, which, the Eleventh is un- That ful. non-liability plicable to demonstrate the so the su- because made lawful present preme law, the State suit. the the constitution of States, word or not the United on the In the comment latest state, but the mere deed Supreme subject, Court of the wrong trespass those individ- pretermitted expressly deci- States speak persons falsely ual who constitutionality sion on Section act in its ground name. was 601(b) per opinion its in curiam important of this distinction v. The Court United States Alabama.18 proceeded ease that court Appeals for the Circuit Fifth White, (74 of Texas 7 Wall. 700 v. taken the same attitude in a direct com- U.S., 227), when it bk. L.Ed. ad- question ment on the same in United secession, judged acts of Atkins,19 States v. which constituted civil war of stated: unlawful were the acts of “In that case v. [United States governments usurping state and not Alabama], Supreme Court in- themselves, states acts upon ‘any defenses, views timated no constitution, inasmuch as ‘the all otherwise, constitutional or provisions, looks to an inde- asserted the State.’ We Union, composed structible of inde- present follow same course in states;’ that, structible conse- case.” quently, the war itself was not Obviously these tribunals consider the states, war between nor a war question open an still and undecided one. against states, of the United States plaintiff contends that Section but a war of the United States 601(b) against authorizes its suit against usurping unlawful support and cites thereof representing governments, states, not the prior Atkins case Fifth Circuit but a rebellion Lynd,20 decisions of United States v. United States.” Dogan.21 v. United States parte Young,16 In Ex the court was explicit holding proper that the de- Since it is clear from United States seeking prevent Alabama, in an fendant action v. supra, Note and United Atkins, supra, enforcement of unconstitutional States Note sovereign Supreme statute self, not the it- neither the the Court was Court nor charged but rather the officer Fifth Circuit that the considers constitutionality 601(b) enforcement of the statute.17 has been passed upon and that both courts con- Although principal- the cases relied on question open, sider the it is desirable ly relate to instances in which the pause to Lynd here demonstrate that neither Eleventh Amendment invoked as Dogan passed upon nor the con- brought, bar Mississippi the action the State stitutionality any legal the statute contends it does not way. rely on the Eleventh here. Amendment reasoning legal handling hasty It rather that the asserts .The and confused pursue Lynd Ap- which allows individuals to al- the two cases the Court 11, supra. 16. Note 18. 362 U.S. L.Ed.2d S.Ct. 982. Peay Cox, Cir.,

17. See also 190 F.2d 733. 323 F.2d 123, 125, denied, certiorari 20. 301 F.2d 818. voting 96 L.Ed. case up Mississippi. which came 314 F.2d report it did not “the will reveal that Circuit leaves involve Fifth peals the by questions presented voyage the in shal- Ken- life bound of their whole nedy Lynd, Perhaps v. that an effort the statement the miseries.” lows sovereign unscrambling was the measur- State within ambit of them at by accorded ably the relief the statutes is fruitful. legal without basis. Lynd against first case commenced The The case second commenced case the second decided—was —but Lynd Rights Act, III, the brought first decided —was Civil under Title —but brought pursuant 1971(c) 1974d, U.S.C. § and involved 42 U.S.C. § by by Kennedy and involved a discrimination suit the examine an effort against Lynd and United States copy the his records.22 Mississippi.23 case, State of In that way case, This No. some anywhere plead- mention was made way Appeals Court found its to the counsel, ings, the brief of either the by panel composed of a and was decided opinion Appeals the Court of the Judges Wisdom, Rives, the Brown question constitutionality of the of 601 § Judge Kennedy opinion by Brown. See Rights (b) of the Civil Act of Lynd, opinion 222. The cov- F.2d ered several other cases from the State This had case been decided never specifically Louisiana and is dealt the District Court. The Mis- State beginning heading page sissippi joined party at under the was as defend- Registrar 19636, Lynd, ant, permitted explicit “No. Forrest terms County, Mississippi.” that was there of the Act. The find time we expressed opinion by the dictum “Re- was first that mentioned in State 1971(c) Appeals lief under is not page confined Court 823 of at rejected F.2d, named ex- individual voter officials but it where the contention sovereign tends as far as the it- Appeals State that the Court of should not lay grant opinion purports temporary self.” The injunction down “because general governing sweep a broad rules has not filed its answer and put proof.” the United States to examine on its copy records. the United court had ordered The trial plain per- quo of all It is that the above bed state- names States to furnish Report page witness- ment 228 of use as sons whom intended wholly Govern- without basis. Neither The es discrimination. to show by filing amended responded United Missis- an States nor the State of ment ap- sippi party was a action. complaint, civil it attached to which appeal giving pendix its witnesses. was from action names of passing called whose court below in case A of witnesses were number list, certainly non-appealable appear action and the did not on names files— which testimony party objected could be set aside either to the defendants showing pleadings. scope being at time outside the putting permitted the case on inac- the United reason The District longer orally list was no amended com- tive existence. States to amend however, condition, plaint, decision author bottomed with the Wood, Cir., United States v. could defer cross-examination defendants period surprise F.2d An examination of that for a witnesses 1604, Hattiesburg signed Divi- No. States had 22. Civil Action was United involving sion, Mississippi, brought same District Southern second suit January 19, 1961, subject commenced decided matter. January the District Court adjudicating Lynd, States entered an order Number court July al., begun and decided [is] abandoned et by that “Case No. 10, 1962, effectually non-existent,” Appeals April and the case the Court passed files. The as- 301 F.2d 818. reason language Nevertheless, days misled the thirty the then answer the and could Dogan opinion complaint. in the author the amended Dogan case,25 quoting in and led to the case, rested its but United States The been incor of the statement had duly their the defendants reserved Lynd rectly quoted Kennedy in made testimony. put their later time to on at a supr three-day conclusion of the hear- At the a. ap- ruled, upon ing, District Court the The District Court for the Northern' defendants, ques- plication that all the Mississippi District of had the denied including it, pre- motion for tions before pre motion of the United liminary injunction against Dogan, for a States liminary injunction, be deferred would thirty-day period, until the so after Collector, and Tax Sheriff connection prepare to cross- the defendants could alleged permit with his refusal to Ne examine the whose names had witnesses groes pay poll their taxes. The State been omitted from the list. party was named as de any fendant, but the lower court had denied The District Court did not enter any Dogan all, any relief either find- or the order at and did not make ings opinion State. find no law, We mention in fact or the conclusions of Clayton, of Judge,27 appeal given, provided Honorable Claude F. District no notice of was question any the the Federal of Civil Procedure. whether re Rules granted against adopted expedient lief should the The United States the Mississippi. original going record, Appeals direct to Court of among filing however, Circuit, Fifth a mo- various discussions there injunction pending appeal. tion an between the evidence court and coun emergency occasions, ques sel on was or more at an one case heard hearing Houston, was adverted to. It Texas. is natural that the discussion did not relate to su Neither the District Court nor ability state, nobody because made Appeals question Court was the upon grant statutory attack suability the State jurisdiction to sue the states. Some ob stated, and, mentioned in the briefs jections testimony were made and the opinion Appeals of the Court of did Government contended that the evidence ques- mention existence of such a was admissible to show the state’s con specification tion. The sole re- error Dogan’s Ruling nection with actions. upon alleged lied the United States was objections, on reserved and the the District Court in not erred Court never was called to make its granting injunction temporary ruling, ques did ever rule prayed for.24 tion. clear, therefore, question It is that the When the case reached Court of meaning constitutionality §of Appeals, specifications the two of error 601(b) never became an issue in either filed the United States were these: Lynd passed upon case was never “(1) court either case. Whatever lan- District Court erred in refusing guage Appeals Court find used in ei- that distinctions on Lynd ease, therefore, pure ther account of race was dic- or color have been guide precedent tum and poll made established no collection of taxes- County; the action of court. Tallahatchie refusing Attorney inspect voting 24. “The District erred in General grant Attorney applica- county.” General’s records of that order, pursuant tion for to § 305 of 25. 314 F.2d at 771. Rights III of the Title Civil Act of 1960 (42 1974(d), 88), U.S.C. 74 Stat. re- F.Supp. 26. 206 quiring registrar of For- of elections County, Mississippi permit F.Supp. rest 27. 206 party “(2) with the a proceedings whose connection The District Court erred racially excluding re- dis- that it could have evidence of criminatory occurring ac- prior quested to take enforcement others acts tion, incumbency R. since all defenses available Everett Sheriff Dogan aggrieved pre- party been could have December 1959.” proceeding enforce- sented wherein No the Court issue was raised before three-judge attempted. was In the ment therefore, Appeals, as to whether re- district court case Massachusetts sovereign lief as far “extends as Farmers Defense Committee v. clear, therefore, It is State itself.” States,31 upon Claire court relied language Ap- used the Court of Company Furnace case and other au- Dogan page peals (314 in the case F.2d support thorities the statement: 771) authority is dictum and is not involving any question a “It is settled that where a well case similar challenged regulation Judge Rives, as fact, statute is the one In before us. unconstitutional, being Atkins, supra,28 unlawful the author who against injunction an will lie a in the sec- sat as member Court charged agency Lynd Dogan person or who is case.29 ond case dissenting majority statute enforcement of the And see also the opinion regulation.” of that court United States v. Ramsey, Cir., 331 5 F.2d 824. Kresge D.C., In 29 F.2d Ottinger, v.Co. makes The further State speaking 762, special three-judge court, a point of 42 U.S.C. violation Judge through opinion A. an Circuit give would to a rise cause § Hand, action, evi- N. took similar as action, would constitute crime un- following excerpt from denced provisions der 242. § U.S.C. opinion: their interpreta- This then amount to an would attorney “Inasmuch as the district authorize tion of the statute which would county of New board York and the sovereign gov- a suit between the federal optometry in the are nowhere sovereign ernment and the state in a charged enforce- statute with the sovereigns criminal matter. As between act, ment of the bill is dismissed each additionally there no law of crime. It reason, well as to them as point makes cannot the State stat- as for other reasons hereafter agency crime, create commit a ed." therefore no statute fiat can create agency relationship. such criminal System has Court The Federal spe- The always also contends that the State to the rule that constitu adhered three-judge cial except statutes under which this tional issues are not to decided (28 Court is convoked U.S.C. 2281- § where constitutional decision such 2284) injunction specifically jus authorize an clearly required interests only “restraining sup the action Perhaps landmark tice. case of- of such State the enforcement port proposition v. of this is Ashwander ficer charged or execution” of the statutes Valley Authority, Tennessee be unconstitutional. Speak 466, 80 L.Ed. 688. 56 S.Ct. Hughes, ing through Claire Chief Justice Trade Federal Commission U.S., p. [p. Supreme Co.,30 Court ruled stated Furnace : injunction 688] 80 L.Ed. should issue that no proceeding in a under U.S. fendant 28. 323 F.2d 733. Lynd refers C.A. 1971. court, three-judge district recent Dogan authority. as Louisiana, . in the of United States case (District Louisiana, Rouge Divi- Baton L.Ed. 30. 274 U.S. sion, F.Supp. apparently 353) led ’ holding that into the same error joined F.Supp. party de- 31. 26 large part upon all the passing policies, pronouncements, “The pressed up- questions Valley constitutional program the Tennessee They are: decision. directors, on it for Authority their and its give desires, rise did motives pass “1. The Court will controversy justiciable save legislation to a constitutionality of action of defi- fruition in nonadversary, had friendly, proceed- in a ing, consti- concrete character nite and declining to decide because tuting threatened inter- legitimate only an actual questions in the. ‘is rights per- with the necessity ference resort, and as a last pow- complaining. judicial sons real, earnest, and determination of determina- not extend to the er does controversy individu- vital between * * * questions. thought tion of abstract that, als. never was held, in term the court At the last party friendly suit, by means of a a dismissing the United the bill of legislature trans- in the could beaten against Vir- the state of West States inquiry as to the fer to the courts allegations general ginia, that- that legislative constitutionality of the * * * challenged the claim act.’ the rivers United States “2. The Court will not ‘antici- navigable, question were and assert- pate question of constitutional law right superior ed to that of necessity of advance of decid- use for United States license their * * * ing it.’ ‘It is not power production, an issue raised questions habit the court decide vague to admit ‘too and ill-defined of a constitutional nature unless ab- * * * judicial determination.’ solutely necessary to a decision of merely upon Claims 'assumed based * * * case.’ potential rights invasions’ of are not “3. ‘formu- The Court will not enough judicial to warrant interven- law late a rule of constitutional original tion.” in the [Citations by required broader than is opinion brevity.] are omitted for precise ap- facts to which it is to be * * * concurring opinion Mr. Justice plied.’ great gives outline of us an Brandéis pass upon “4. The Court will applicable judicial principles to constitu- although question a constitutional [Pp. adjudications: 345-348 tional record, properly presented if S.Ct., U.S., 80 L.Ed. p. 482 of 56 present is also some other there : 688] ground upon which the case frequently called Court has disposed “The rule found of. This ‘great gravity and Thus, application. attention if a most varied passing delicacy’ function of its ease can be decided grounds, either two validity upon Con- involving an act of a constitu- one gress; exercise question and has restricted question, tional the other rigid general insistence statutory this function of law, construction or jurisdiction of federal only decide Court will * * * cases is to actual courts limited latter. controversies; pass upon “5. The Court will give advisory opinions. power On validity statute com- the plaint of a years ground in recent it has to show that of one who fails * * suits of several the dismissal ordered injured by operation. its he constitutionality challenging Among many applications * * Congress. important acts of striking rule, than the none more challenge right developed, own denial “The confessedly property personal governance one who lacks a right. Thus, in the cases challenge by pub- jurisdiction, a series within its per- official avoided lic interested it has rules under which duty ject formance of his official will not to suit the United States in the * * * involving alleged be entertained. action discrimination Negroes rights. voting the denial to pass upon “6. The Court will not United States of America v. State of constitutionality statute at of a al., 6, 1959, Alabama et March 171 F. who instance one has availed * * * Supp. 720, 730. It relied on the fact himself of its benefits. Rights that the Civil Act of 1957 did not validity “7. 'When the anof act grant specifically proceed Congress question, is drawn the State. The court fol there even if a serious doubt of con general lowed the law as stated in United stitutionality raised, it is a car States v. United Mine Workers of Ameri principle dinal this Court will ca, 1947, first ascertain whether construc L.Ed. in which it-was held that sov fairly possible tion of the statute is ereign governments included were not question may which the be avoid within the ” word “Persons.” ed.’ Appeals The Court of for the Fifth We are the view that the mo Circuit affirmed the decision of the dis tion to dismiss filed the State of Mis court, trict United States of America v. sissippi presents a case where the Court Alabama, 16, State June F. ques can and should a decision on a avoid 808, stating: 2d constitutionality where, here, tion of as elaborating it, upon “Without matter the be decided on non-con under the settled law the cases we grounds. stitutional As the Fifth Cir extenso, do in could isit sufficient for pointed cuit out in United At States v. simply say that, prin- us to under the kins, supra, appropriate it not would ciple been, is, which has and still grant against for it to relief the State controlling upon courts, the federal Registrars where are office and are congress might whatever or could do subject injunctive to suit and relief. providing rights in a civil action Complaint, except Nowhere does the conferring jurisdic- federal court injecting conclusions, rash demonstrate state, tion over it has never here- State, such, enforcing the tofore done so and it has not in terms threatening to enforce the statutes done so the invoked statute here. provisions constitutional under attack. Rather, Registrars conferring County specific it is the who “Absent such regula jurisdiction, are defendants who enforce the federal would court question.33 not, juris- tions in indeed could not assume sovereign diction over a with- state leaving question Before the the precedent that, out a determination suability State, of the it is well to con- though jurisdiction the had not been sider the circumstances under which the expressly conferred, language granting statute to sue the the invoked statute carried the being. came State into The United necessary, implica- the unavoidable States of America sued of Ala- the State congress grav- upon bama, together registrars certain est considerations and the ut- after resigned position who had from the be- thought most had and deliberation fore suit was filed. United (Cit- intended to and did confer it.” States District Court Dis- for Middle ing large cases.) number of trict of Alabama dismissed the action holding, among things, pending other While this action was sovereign Supreme upon certiorari, State of Alabama was sub- the Con- (Again, citations have been omitted for See infra. Note 36 brevity.) the sake of See also Lane v. Wilson, L.Ed. 1281. gress ther bama. Under 74 Stat. (cid:127)fact that there manded to the District Court for pose, Civil statute was stitutional jurisdiction (e)). of 1960. trict for the Middle District of before the thorizing things the Court brought against be asserted provisions for further trolling, with familiar case with instructions to reinstate the trict Court has issues decided tertain this action timate gress passed ^[*] constitutional or decided on From these Appeals (b) “Shortly “Accordingly, “We using this Court hearing, U.S.C. § so itself vacated Rights ^[*] i. same inserted as controversy, remanded e., holding 602, 604, ^[*] § any hold applicable to this to fill a and the District Court and and the principles, 601(b) conditionally Supreme actions such as this to be opinion.” * * * Among passed law, day § over Act before the case was of 1971(c) will be view Supreme 601(b), were facts it is clear that settled that proceedings we do not language: the' State Appeals that section the basis judgments below, (Act the State. vacuum caused May 2, of that Act otherwise, provisions Macon jurisdiction no upon, any or words Civil against case States Court, vacated, by expressly of law principles registrars State. District Court judgments any departure virtue the merits of liable Alabama, Court], and the Dis- particular pur- case must be reach, U.S.C. § Rights May 6, County, making litigation. consistent the State. on defenses, now con- Alabama under 4 L.Ed.2d amends the Court Alabama, argued of the [being Under May 16, heard or in- Con- having Dis- Act au- en- ac- 1971 behind the fur- Ala- whom a minor con- the would re- be have such trars in no traditional relief cumstances motion of the State to dismiss a claim ground and the notated. We have examined the plaint person. They fendants scribed and must any other reason. the statutes under allegation forced Mississippi. Commissioners Commissioners are tenure or actions of the Circuit Clerk Registrar otherwise allegation the race or reached the determination process Registrars, as to the extreme elected Circuit The State Election Commission For the reasons stated 3209.6 No granted. required. They had proper . prepare. are wise they choice sought. Annotated. The duties of be held to in detail without Governor, State against them, that the The State Board Attorney type all available and full did denial of situation where once qualified applicant that these Commissioner prejudice made required Court’s are mere course here is color and conditions which situation here. The § from the particularized constitutional' given have no they is, by part Clerk is an the selection of any duty arising complaint registration of the General of apply attack, nor is VI. holding. statutes make comprehensively pre are registration way Commissioners Secretary Code of and the conduits their the State statute rigidly controversy control finding any applicant or for statute granting enforce we think that appointed him fails that the of Election registration actions en relief could “improper” they have We do forms because grant principles relief can composed dismissal regulated over any Election to state through to flow. Code statute. it County on the any regis- State, these Com plain they duly fact fact will cir- An any De are lay as charged pro- policy. Complaint Phil broad remedial social See with States, mulgating any appointing lips 61 S. v. United form or with 800; Registrar any v. Mo Ct. 85 L.Ed. than in accord- Stainback otherwise Po, 368, 69 S.Ct. Hock Ke Lok 606, 336 U.S. the statutes ance their duties under with 741; Dept. upon by plaintiff. 93 L.Ed. and Kesler v. These statutes relied Safety, of Public case. Con- are not attack in this under any sidering Complaint L.Ed.2d 641. set proved circumstances which could be Where, here, parties are allegations, cannot visualize under its we brought are before such tribunal who injunction could issue how an contemplation not at all within the Election Commissioners State Board statutes attacked and in who are not any individually, for its members dispensable, necessary proper parties charged enforcing are determination of the issues in threatening any to enforce of the stat- controversy, they should be dismissed presence under attack.34 The utes judicial the interests of sound adminis parties- Commissioners as Election litigants spare tration as well as to litigation in this nevertheless defendant expense themselves the and inconvenience rights presents of three additional procedure. trial For addi these recognized by defendants which must reasons, tional the motion of the State way discovery pleadings, procedures, Election Commissioners to dismiss for objections evidence, cross-examina- any failure to state claim which re witnesses, presentation granted tion of of evi- lief could be should be sust dence, many pro- and the other trial ained.35 which, time-consuming, cedures while VII. litigant every due of our under judicial system procedure. opin We are further of the ion that the statutes of make Three-judge courts constitute plain County Registrar that the alone unique Judiciary. burden on the Federal charged with the enforcement of the keep minimum, To this burden to a statutes under attack here.36 vesting statutes to call such charge Complainant makes judgment courts to sit of constitution conspiracy of action be- concert challenges strictly al are to construed be any or individual tween two more of the procedural technicality as a a and not as By plain- csunty registrar defendants.37 34. See Federal Trade Commission v.’ amended, compliance and in with Sec- Co., supra; Claire Furnace Massachu- of Missis- tion 241-A of the Constitution setts Farmers Defense Committee registered sippi to be entitled to be as States, supra; Kresge and Co. taking elector, upon person such Ottinger, supra. subscribing required by Sec- the oath Mississip- tion 242 of the Constitution of regard 35. What is here stated with may pi; persons who be entitled to but ap- State Election Commissioners would register provisions of Sec- under the ply equal defendant, with force to the Missis- tion 251 of the Constitution of Mississippi, long State of so as the actual disqualified sippi, would be otherwise who officials, County Reg- enforcement istrars, by may age, of take the oath as reason subject in remained office and circumstance, by and the modified subscription to suit. by of the oath shall be 1942, Annotated, Code of writing proper name in the elector his “Registrar register registration § entitled column in the book.” voters,” states: registrar register Registration “The shall on the to vote is an individual registration showing qualification process books of the election district lack of oi- person any qualification by of the one residence such on a case case basis. appearing, him, being, subject upon before cannot be of class action It examination, Lucky, found, compliance Cir., in with 252 F relief. Reddix v. . ' Constitution, 244 of Section 2d 930. being Complaint defendants residents interpretation, these own tiff’s Dis- charges oc- Jackson Division of the Southern or of transactions series agree plaintiff’s but, rather, do with trict. We individual enforce- currences Registrar by separate effort to the various counties Defend- consolidate ment alleged acts of with the idea that the several uncon- to be ants the statutes determining registrars pooled agree in cannot We stitutional void. pattern prac- that, a plaintiff’s whether there has been or if sev- contention with tice under statute. inde- the terms officials of (cid:127)eral unrelated a very recognize pendently applied Those terms that each the terms of a statute county Mississippi separate in is a unit of of- of their duties the enforcement dn fice, registration applications and must be so con- treated all such would every against registrar. single occurrence, action a or stitute transaction or or a series transactions occurrences IX. meaning 20(a) of the within the Rule Rules of Civil Procedure. right plaintiff .Federal The asserted that the United States can maintain this action charge joint In the of a absence against any all of one or the defendants wrong-doing individual defendant upon is not sustained the authorities authority registrars, we find no to con- plaintiff which the relies.38 joint the suit them tinue registration courts, three-judge of action. Each act of (cid:127)cause 2281 deals with register must, (cid:127)or failure or spend refusal to further no time in need and we necessity, place separately apart take contro- that statute. The discussion every registration therefore, versy limited, (cid:127)from act of to whether non-registration, plaintiff Congress within same even could vest n county. Complaint contains no alle- maintain it to claimed gation registration act of particular action and whether § register fact, (cid:127)or justify failure refusal does, maintenance part brought. transaction occurrence plaintiff it has of the action n concerned separate fairly similar acts in a mind what is should borne (cid:127)county. complaint nexus is the use the briefs stated registration attorney .same plaintiffs laws. insuffi- This is and what its support joint argument— cient to categorically cause of action. at the stated object of this the sole action VIII. the attacked sec- the Court declare plaintiff Com- If intended Mississippi’s Constitution tions plaint action unconstitutional, state also cause and to substi- statutes pattern practice of in- suggestions based therefor the tute alternative by these racial discrimination dividual complaint; plaintiff forth set n defendants du- disavowing any pur- the enforcement specifically desire offices, of their such of action causes any ties pose dis- based to seek relief single justiciable solely by would be before further This is verified crimination. judge. supra plain- (cid:127)district four stated the claims language. own tiff’s jurisdic This has venue elementary against all fed H. K. It of the claims asserted is tion statutory Whittington, Registrar jurisdiction unless of Amite is eral Holmes, County, against confers it. And Wendell R. Constitution itself jurisdiction Registrar County, must be of of of Pike both federal The existence by complaint the United 38. The states the Court civil actions “commenced by jurisdiction States, any agency or or officer there- § “under 42 U.S.C. has expressly T>y (d), to Act authorized sue § of § U.S.C. 28 U.S.C. controversy any Congress." party revolves 2281.” makes serious The Neither of argument concerning which vests around the words the statute § which jurisdiction (cid:127)district of all we have italicized. courts empowered bring clearly, if General was to and it must be denied shown an ac- constitutionality preventive tion for about relief. there is doubt of jurisdiction. grant Screws complaint The fails to here show that States, 91, 65 United those circumstances existed. This action L.Ed. court was able any seeks relief for citizen who is to would have save what otherwise been qualified under the laws by grant surround- an unconstitutional ing to for vote electors of most numerous by jurisdiction narrow limita- legislature. Mississippi’s branch of This tions. solely action seeks have the Court de- quali- clare unconstitutional most of the by The claim asserted fications defines for electors plaintiffs any is show merit Leg- of the most numerous branch its that this action is maintainable under islature. constitutes massive scat- 1971(d), quoted U.S.C. which has been § ter-gun many impor- attack supra. That subsection must be consid provisions Mississippi’s tant Constitu- immediately light ered preceding ing one tion and statutes. is no There intima- “Whenever, proceed it: in a any tion that part or a whole as to § any instituted under subsection right it,of vests such a in the Unit- official of State or subdivision thereof placed ed States itself. 244 was into- § alleged any committed act or organic Mississippi by law of practice constituting deprivation people in convention assembled the- after any right by privilege secured subsec twenty * * confusions frustrations (a) of this section The years Tragic Era had subsided provision (a) subsection which ref enough citizenship bring for its a sem- “(a) erence is is in made these words: people- of order out of blance chaos. The All who citizens the United States themselves, through elected their conven- qualified by any otherwise law vote in tion, placed that section the Constitu- people any State, election Ter tion. ritory, district, county, city, parish, provisions township, district, municipality, school The other constitutional at- subdivision, plaintiff tacked other territorial shall entered the Con- Mississippi by stitution of entitled and allowed to at all the direct vote- vote elections, people. symmetrical race, without distinction of statu- col- or,” tory notwithstanding carrying Constitution, structure out con- laws, stitutional, usages custom or mandates worked out and of the state. duly passed legally leg- constituted (a) These words from subsection islatures of the state. does not. § plainly may state that the United States Attorney or its invest the United States color, any person intervene in aid of any power bring any General with ac- provided person qual- is “otherwise destroy any tion to state’s constitution or lato vote at election ified people ”* * * laws. (Empha- state added.) meaning pro- sis It is clear these contem plated perfectly visions seems clear. The Unit- envisioned existence voting proceedings requirements ed States institute state which did preventive relief, provided a not on face discriminate officer their because threatening attempting deny operative language- him race color. The voting election; in a federal “[a] citizens States provided qualifica- and qualified also who he had “the law are otherwise to requisite presupposes tions of electors the most vote.” This of the existence legisla- requirements voting. numerous branch of valid the state state Then, only then, provision ture.” could the There is no of the Constitution United States come or a to the rescue of one statute of which de right prives any right of its citizens to whose vote was citizen of to the vote challenged. event, Attorney In of race or the because color. Language import equally of identical It is this effort the clear found (92 217-218, 563). vot United States to invalidate the state Reese U.S. 23 L.Ed. ing requirements is out here involved (c) The first sentence subsection scope the Amend side the Fifteenth grants 1971 is one which the the Attor- § Constitution, to ment the which been ney power General the to institute cer- repeatedly held to be the basis sole § proceedings tain under certain circum- 1971(a). Reese, 92 U.S. States any person stances: “Whenever has en- 214, 23 L.Ed. Guinn United gaged grounds or there are to reasonable States, 35 S.Ct. 59 L. U.S. any person believe that is about to en- Ed. gage practice act which would deprive any person right provi- Guinn involved constitutional privilege (a) secured subsection regis- Oklahoma, up sion which set (b) plain meaning of this section.” The requirement voting, pro- tration but part (c) of that of subsection is that requirement vided not should Congress Attorney vested the General applied any person was, be who power injunctive to seek relief January 1, 1866, qualified or to to vote against acting state election officials un- person. the lineal descendant of such der color of law when said officials should Supreme Court found constitu- deny person qualified “otherwise provision tional on its in con- face vote” the vote because of race Amendment, flict with the Fifteenth or color. Negroes it since was known well that no qualified were vote Oklahoma on Assuming, therefore, that 1971 does January 1, quotation 1866. This brief empower States, through the United the (238 from the decision in Guinn Attorney General, legally per- to assist at at 59 L.Ed. qualifica- son who meets all the other 1340) will suffice demonstrate at- the Mississippi law, being tions who is dis- titude the court then and now: color, against criminated because of his support “Beyond the statute does tend the doubt the Amendment here, upon away action which is not based dis- does not from state take the crimination, upon general governments but the asserted fun- in a sense unconstitutionality suffrage power damental of the en- which has be- over provid- longed governments tire structure of law to those ing qualifications. beginning, pos- voter cir- Under these and without the power cumstances the least this Court can do which whole session to avoid a doubtful constitutional con- fabric which the division authority struction and to dismiss the action be- state national under brought any power organiza- cause it is not under Constitution given by on, governments statute relied by but is a both would rest direct support, attack the Indestructible Na- without both such, against authority tion as and is the Inde- nation and the state And, moreover, ground. fact, structible as such. would fall to is an very it attack a state at aimed command of Amend- destroying recognizes its possession action committed field ment exclusively Constitution; general state, power since to-wit, power regulate the state’s to determine and seeks to Amendment qualifications particular subject define the of the electors exercise as to a * * * may elections, who vote not with which Thus it deals. but federal authority suffrage elections as well. over possess limitation states X. imposes which the Amendment destroy I, co-ordinate one Article 2 of Section Constitution bringing provides representatives the other without about the shall be every of both.” destruction “chosen second Year *946 provides was to elected “the The national executive People”. further n Electors legislature.40 by the national shall have the in each "Qualifications requisite of for Electors 31, sitting May of committee On of numerous Branch the State most (cid:127)the House, approved convention the whole simple Legislature”. con- words leg- These calling national the resolution only provided requisite for the fain the branches, and consist of two islature to n selection those persons shall vote of who resolu- then and debated the considered elections.39 federal calling first of the tion for election by adopting by people, it branch very Ritz, by pointed Dr. out As states two, of with two vote six states to language Con- ^simplicity of this of days later conven- divided.41 A few might suggest casual-

.stitution tend pop- again upheld reconsidered draftsmanship. promptly He ness of eight election, by of ular this time vote out, however, points was not that such to three.42 states n suggesting case, that the records During Jer- New consideration Farrand, convention, discussed sey popular Plan, on attack still another deeply with it concerned show that was narrowly defeated, n problemsrelating an- was then election of offi- the election was voted motion to n cials reconsider Government, adopt- of the Federal four, by with one down six states ing plan indirect election divided.43 by use of President Vice President college. pro- The convention an electoral points page out, Ritz As Dr. appoint in such “Each shall vided: state October, 1963, the A.B.A. Journal n manner legislature as the thereof provision aspects were of the various * * * ”, n direct, a of electors number until, finally, pro- debated care 'thereby leaving passed of selection the method dis- state vision was without senting. qualification states, although on the qualifications The debate .and August was On thus ended. voters 'Congress was authorized establish Congress granted 9th, the convention choosing. of their time regulations power supersede May 29, presenting On the res- place time, hold- as to and manner Plan, Virginia olutions known as The ing shows elections. The debate provided which the basic framework pointed provision had was out pro- Randolph Constitution, nothing qualifications.44 (cid:127)the Edmund to do with voter posed legislature a national to consist September 8th, On the convention branches, two members of the first style, named a which made committee people 'to several be elected change adopted one states, and the members of the second denying Congress the convention per- place power from ‘be the first branch election sen- elected over relating provisions ators. to elec- legislatures. .sons nominated the state Records of the Federal Convention 39. Ameri Volume No. (Rev. 1937). 1787,” 4 Vols. ed. Bar Journal can Association contains with the While the article deals alone excellent article on “Free Elections and power Congress, Congress most contents Quali the Power Over Voter apply equally reproduced to the Courts. Therein fications.” .paper by Ritz, Dr. J. Professor Wilfred 20-21, 40. 1 Farrand 27-28. Law, Washington University, .of and Lee Farrand, 46, 47-50, 54-55, 56, 41. 1 60. place which won first in the 1962 Samuel Essay Pool Weaver Constitutional Law 140-141, 132-138, 42. 1 Farrand n Competition annually conducted 142-144,145, Bar American Foundation. Farrand, 353, 358-360, 364-365, 43. 1 extensively paper draw from We portion opinion. Dr. Ritz n cited many Farrand, 239-242, 44. 2 times “The Farrand

947 adopted part of thus tions were became a stated at the conclusion of his arti- completed Constitution.45 the cle:48 «* ** points reason, the For article further out that the 1913, qalifica- Constitution Seventeenth Amendment ratified establishes the providing popular for of the tions of by for election electors federal officials readily senators, pattern follows forth the set ascertainable and com- original pletely objective providing in the Constitution standard. This ob- jective beyond pow- “have that the electors each state shall standard is the qualifications requisite for er of the electors the Federal Government states, change, except by going most the numerous branch to the which tions the states for vious mitted tutional amendment alone. come limitations state federal officials. But that it the “Poll branch of its own state restrictions states oficiáis, defined “Otherwise, tion for the state can establish for Fifteenth and Nineteenth eral officials.47” The It further states state qualification legislatures”.46 amendments place departed to establish a in the and so also of electors Tax officials and require restrictions on the there Amendment,” emphasizing clear, therefore, may require on could original Constitution, that, except article refers the most numerous that a different the elimination qualifications so, indirectly, be done electors for state no constitutional qualifications legislature electors pattern the election Amendments, of electors qualifica- qualifica- for the consti- is also to than per- pre- fed- be- berry parte Yarbrough, v. teach a 394; ton, 88 shank, Board of 152, L.Ed. U.S. Cases, 1005; Suttles, tional amendment. needed, amendments have been ^[*] through strates that The decisions Reese, supra; 185 U.S. ^[*] Minor v. v. United 16 Wall. Guinn United 252; 92 U.S. 162, similar lesson. L.Ed. S.Ct. ^[*] Elections, ” 65 L.Ed. people 22 L.Ed. 487, Lassiter v. when necessary 274; Happersett, 36, 542, States, process United States v. Cruik 59 L.Ed. infra. 83 Swafford v. 23 L.Ed. 627; 913; S.Ct. change History seek U.S. 256 U.S. Slaughter-House States, constitutional Supreme forthcoming. of constitu- United States Northampton- 21 Wall. Breedlove 36, 1340; 651, has been demon- change 588; 21 L.Ed. 238 U.S. Temple L.Ed. New S.Ct. 162,. Ex ratification the Seventeenth XI. and of Poll Amendment Tax Amend tedium, At risk that we- we feel Congress ment, the nation and ought briefly provisions, to discuss century people affirmed in this Mississippi’s Constitution and stat- change power to establish or plaintiff utes would down. strike qualifications of offi electors federal the- We find them to within each accomplished by cials can be constitu power of State and to be reasonable- tional amendment alone. convenience, copy at and valid. For we margin language- point Dr. Ritz’s estimate the constitution- establishing qualifica- 241-A al Constitu- §§ scheme tions of Attack made also sixteen tion.49 electors federal officials read and 45. 2 be able to write section Farrand 653. give of this State and tbe Constitution page 46. No. A.B.A.J. Vol. 951. interpretation thereof to the reasonable county registrar. 47. Id. He shall demonstate registrar county a reasonable A.B.A.J., 10, page No. 954. obliga understanding of the duties and ' citizenship sliall, Every elector tions of under constitutional “Section government. foregoing qualifications form of addition

948 statutory published in When a unam enactments the terms statute are biguous may not, construing will not court of 1942. We Code it, point speculate probabilities

copy be- on in or to those at this of the refer bring Congress.52 legislative yond them, but will tention mention they history unambiguous gist imm forward the statutes statute aterial.53 are discussed. plain meaning “The words and of á appropriate the out It is at legisla- by statute cannot be a overcome opinion portion of to set of this set history which, through tive strained principles which have

forth the basic processes of deduction from events reviewing questions guided court wholly ambiguous significance, may fur- presented by motion to dismiss: nish dubious bases ev- inference 54 ery direction.” principle “The cardinal of statu- tory is to construction save principles With these in mind we * * * destroy. to as between provisions examined constitu- interpretations possible aof two statutory tional and chal- sections here statute, by it would be one which ambig- lenged if determine by other unconstitutional uous or We find uncertain. them valid, duty adopt plain that our is to plain, simple straightforward. which will save the act. Even meanings Their trans- intention are a is the avoid doubt the rule serious parent unambiguous. completely We same.50” have, therefore, that their determined changed constitutional status cannot be consistently an inter- Courts should seek by delving legislative supposed in- into supports pretation of a statute which tent, purpose. history or posi- constitutionality avoid, where vague that the meth ble, holding or is likewise true the statute application od or administration indefinite.51 good person applying register person shall be of moral character. shall “The power Legislature sworn, application for “The shall have the make a registration written provisions prescribed of this sec- to enforce the a form to on legislation.” appropriate tion commis- board election the state exhibiting sioners, therein the essential Board 50. National Labor Relations necessary qualifications to show facts and Laughlin Corp., Jones & 1, 30, Steel 301 U.S. vote, register and he entitled to 621, 615, 81 L.Ed. 893. 57 S.Ct. written, entirely application to be said Dairy Prod 51. v. National United States signed applicant in the dated and al., Corp., 29, et 83 S.Ct. county ucts registrar, presence with- 594, 9 L.Ed.2d 561. suggestion from out person assistance pro- whatever; memorandum Ritchie, Insurance Co. v. Merchants’ vided, however, applicant if 541, L.Ed. 540. Wall. 18 5 application rea- write his is unable to Robbins, v. McKesson & 53. United States disability, same, physical son of 305, 937, Inc., L. 100 351 76 S.Ct. U.S. disability, be writ- his oath of such shall Oregon, 1209; Ed. States v. by the ten at dictation his unassisted 6 L.Ed.2d 575. U.S. S.Ct. county registrar. “Any qualifications or additional new Walling, Gemsco, Inc. v. U.S. required imposed herein shall not be at L.Ed. 921. at any person duly registered who was F.Supp. Schnell, D.C., Cf. Davis v. qualified prior elector this state 872, 878: January 1, phrase in stat- "When a word or Legislature power “The ambiguous, shall have the it is ute or constitution is provisions court, construing duty to enforce the of this sec- the meaning legislation.” appropriate phrase, at- of that word tempt In all exact “Section 241-A. whether an determine addition required meaning so, qualifications person if to as- was intended and register pur- meaning.” (Emphasis to be for the certain add- entitled to pose becoming qualified elector, ed.) needlessly prolix. validity procedure cannot would be the statutes invalidity affect the adopt say those two it to that we the statutes themselves. Suffice upholding opinion Harris, Giles 475 at as our here sections constitutionality at L.Ed. of Section the Su- preme there cited Court authorities stated: its face.56 The support completely for the still valid are “If constitution the sections plaintiff points fact made. The concerning registration illegal were required admin to follow the there was inception, in their it would be a new him available to does istrative remedies doctrine constitutional law that logic or not from correctness detract original invalidity could be cured holding, court’s constitutional by an administration which defeated controlling approve which the iden we their intent.” questions presented. tical here negated: The reverse effect has also been Darby de Since the date “A statute not be void held cision, Supreme of the United Court because of of an the action executive again stamp placed of con its States has applying provisions. officer its approval on of a liter stitutional the use Even when there is an abuse of exec- qualifi acy permissible test as voter against power utive which the courts requirement. cation North Lassiter v. cannot in- relieve because their County Elections, ampton Board of ability to control dis- administrative 985, 45, U.S. L.Ed.2d 1072. 79 S.Ct. Congress cretion, the act under The court there stated: which not the action is taken is ability rendered invalid than it more to read and write “The absolutely action which is un- to stand- likewise has some relation intelligent designed promote authorized.” ards Literacy and illit- use the ballot. Indeed, any statutory other method eracy creed, race, col- are neutral interpretation permit would members or, sex, reports around the Branch, will, the Executive at make Literacy world and intelli- show. legislative unmake do enactments. We gence obviously synonymous. are arbitrary discriminatory not hold that people may intelligent Illiterate administration of lawa which is valid society in our voters. Yet where give right on its face will not to a rise newspapers, periodicals, books, and offending action enforcement printed matter canvass and de- rather, official; holding limit we our might campaign issues, bate a State the determination that such administra- who conclude those change tion cannot the constitutional should fran- literate exercise the status of the law on its face. Harper, chise. Cf. Franklin v. XII. 779, 221, appeal Ga. dis- S.E.2d analysis Complaint 804, missed 339 U.S. 70 S.Ct. required by should the motions before us 94 L.Ed. 1361. It was said last cen- begin properly tury with a consideration that a liter- Massachusetts validity acy 244 of the Mis designed Section test was insure sissippi ‘independent intelligent’ Constitution. This same section exer- present form was this Court suffrage. before cise Stone Darby Daniel, D.C.1958,168 F.Supp. Smith, 413-414, 159 Mass. N.E. appeal agrees. which was taken. 521. North Carolina We do very opinion judgment We could well fashion our not sit in on the wisdom point literally rescripting policy. say, at this Sec of that We cannot how- opinion, ever, I II tions from this but such that it is not an allowable one County, Except II, Duke Power Co. v. Greenwood for Subsection 4 of Section 672; Cir., relating exhibits, newspaper 91 F.2d Affirmed 302 because question 58 S.Ct. 82 L.Ed. 381. before here. us opinion equates Louisiana Their stand- constitutional measured provision with Alabama’s constitutional ards.” Amendment, was con- Boswell Barnes, cer- 65 F.2d In Trudeau v. Davis, 336 U.S. in Schnell v. demned 659, 54 S.Ct. tiorari denied For 93 L.Ed. 1093. Appeals 78 L.Ed. Darby out in and because the reasons set approved Louisiana’s Fifth Circuit legal and noted factual differences embracing requirement constitutional agree Mississippi’s above, cannot we reading interpreting its Constitu- presents questions. same Section How- tion and that of United States. ever, 27, 1963, the case on November three-judge opinion Louisiana Louisiana, of United States v. State concep- places emphasis on its also much two-judge majority supra, of a three- “literacy” tion of the difference between hearing judge panel that District Court “interpretation.” “understand” was that case case held Trudeau phrases to two said be The latter are light longer no valid in the of the deci- meaning in the words without definite Schnell, supra, sion in Davis v. “the law and unlike words “read” They pointed also more recent cases.” agree cannot with the “write.” We court, perhaps out that Trudeau be- all, court’s there. First observations poor presentation of cause of the that, it to us the Su- seems clear when case, did have the “benefit” evi- “Literacy preme Court stated intel- discriminatory purpose ligence dence proof obviously synonymous” are “discriminatory affect” of the opinion above, quoted in its in Lassiter interpretation Louisiana think test. We require it did not mean that tests which especially this citation is invalid view showing comprehension, understand- Supreme holding Court’s in Las- ing interpretation literacy or are not siter. Rather, tests. we court believe the there logically that an meant demonstrate note, moreover, We these differences intelligent, person illiterate could be but between United States Louisiana and literacy permis- nevertheless being presented, the case here it there require standard for sible states contended: dictionary prospective electors. The de- Registra- Loúisiana Board of adjective “in- fines the “literate” power tion has will remove at educated; letters; specifical- structed registrar voters; parish ly, able read and write.” It defines- registrar’s parish 2. The whim alone noun “literate” “one who can read determines who will be tested and who and write.” The transitive verb “read”' registered testing; will without go over, especially,, is thus defined: “to 3. No written records were made apprehension meaning of, cases, precluding most test thus the use words; as characters or to take pur- of such records for check or review language, by interpreting- of, sense as of ; poses expressed. the characters with which it is Registrar Louisiana vested something To writ- utter aloud render power;” with “raw give ten, especially an inter- so as to prescribed by 5. The Louisiana’s test significance. pretation' To of its inter- legiti- law has rational relation to a meaning pret; of.” The to discover the governmental objective; mate it vests “to- is defined: verb “read” transitive Registrar; unrestrained discretion peruse go understand- or to over with subjective, it is unreasonable and is in- ing.” [Emphasis added.] capable equal enforcement. Mississippi’s eligibility. appearing to voter uisite requirements In Note 7 at 360 U.S. fully among de- . those court 3 L.Ed .2d or ob- adverse comment pointed scribed without have some out states requirement literacy prereq- servation. sort of as a necessarily 1971(d) Literacy permitting un- must include recourse to this § Court, meaningful regard derstanding if it is to be the without whether the aggrieved party qualification requirement of shall voter have exhausted remedies, Supreme in Lassiter. administrative or Court discussed were ability Darby. literacy encompassed also If before the court in Nowhere syllables Complaint -orally pronounce of a Bill does the us before allege anyone grouping letters, a corre- without aver who claims to understanding comprehen- register sponding have been denied the signify began meaning, “simple,” “cheap,” even sion of their would ad- nothing. might remedy open person a book A look at ministrative Missis- under sippi Spanish law, pursued .or or French let alone it or letter written exhaust- ability to off ed it. .and have the write pronounce found there and them words reasons, distinguish For all of these we nothing ¡orally, if knows but he Louisiana, the case of United States v. meaning thought conveyed by those supra, presented by situation words, he cannot said to be literate Complaint now before Court. To reasoning Spanish or This French. holdings may the extent conflict support by .draws to 42 added reference here, with those we do not follow it. (e) U.S.C. 1971. subsection thereof appraised Section 244 should be in Congress recognized literacy and (cid:127)the derstanding un- yet way, suggested by another qualification as valid voter Supreme Hopkins, Court Yick Wo v. separate places .requirements in two in Sheriff, appointed their to court directions vot- case, sug- L.Ed. 220. In that the court ing referees.58 gested simple but effective test to de- proce- lack of an effective review termine if a statute vests ordinance significant arbitrary power dure is another difference be- charged in the officer Mississip- tween the Louisiana case and with its enforcement and administration. pi’s Section 244. In Section IV of the This test is as follows: n opinion Darby, court discussed in case, persons [In that who wished n detailthe machinery Mississippi which operate laundries in woodenbuild- provided reviewing Tad at that time ings required were to obtain con- Kegistrar.59 decisions Since the sent of Supervisors.] the Board of Darby decision, only change in the re- “ * * * applicant if for such an procedure require -view been being every way consent, a com- n CountyElection Commissioners to con- petent person, qualified and hav- documentary both .sider oral and evi- ing every complied with reasonable provides dence. The statute still any public in- condition terest, should, demanded hearing pointed novo. As we de failing to obtain the n outin Darby, Mississip- heart of “The requisite supervisors consent of the [registration] machinery pi’s lies business, prosecution to apply of his any person appeal to the judicial redress County Election Commission.” process require of mandamus to particular upon supervisors would We also call attention to consider and act case, to the fact that the of 42 words U.S.C. sufficient an- his it would be a proof literacy solely or an under in- “Where mined on the basis of answers subjects required by standing voting report of other cluded in of the ref- provisions law, valid of State the answer eree.” applicant, written, if in shall be report court; procedure cluded in such oral, if 59. A review the Court stenographi Appeals Peay Circuit, it shall be taken down of the Fifth v. cally transcription Cox, supra, and a included characterized thus: report remedy wholly administrative, “[T]he to the court.” simple, cheap ought applicant’s literacy “The and under- exhaust- be standing subjects plainly.” of other shall deter- ed say interpretation law made reasonable for them swer authority registration been refused them had conferred either the Registrar assent, County without their to withhold Election Com- mission, responsibility.” a mandamus action reason and without would most surely requirement in a result that the test, the Because the result applicant registered, ques- because under con- there court held the statute tion before the court would be: did the arbitrary.60 purely sideration to be applicant give interpreta- a reasonable comparison, call atten- we For sake tion? presented in Schnell tion to situation Seeing depart no reason to from our Davis, supra, and the Boswell Amend- opinion Darby Daniel, hold that we implementing re- ment and its quiring statute Section Constitu- registra- applicant for voter tion is valid its face and does not vio- to establish the satisfaction late the Constitution or Laws of the Registrar quali- that he or was she United States. sug- apply If the mandamus test fied. we gested by Wo, XIII. would have this Yick we fully applicant qualified situation: Complaint charges next request would court to mandamus that Section 241-A of the Registrar place his on the name Constitution violates the Constitution of Registrar persist in his rolls. The could the United States. Goodmoral character the mandamus action denial resist prerequisite prac is a for admission to simply stating that he was satisfied Supreme tice before the Court of the attempt applicant’s estab- States,61 the Court of Claims qualified. lish to him that he or she States,62 the United and United States complete This would be a answer to the Court,63 Custom each ten cir proceeding mandamus without reason Appeals.64 cuit Courts of moral Good given responsibility and without further prerequisite character is a for naturali Registrar’s part. on the Connecticut,66 Alabama,67 zation.65 69 Georgia,68 provisions Mississippi’s require a Under and Louisiana all 244, prospective good just Section situation is elector to moral be re- good Here, qualified applicant Atkins, verse. if a character or In character. proven confusing Circuit, opinion 60. This lias into the rules of the Fifth at courts, Mississippi practitioners a number least for as evidenced their holding. descriptions A varied Southern District. reading opinion careful of the discloses 65. U.S.C. 1427. It should § § 8 Supreme that Court did not hold the although § noted that 1101 sets out sev- municipal ordinance unconstitutional. good for eral criteria determination They did order Tick Wo released character, moral it concludes with the charge criminal him dis- any person statement: “The fact is missed, ruling but the basis for their foregoing not within of the classes arbitrary because the found statute was preclude finding shall not that for other applied by to have been Supervisors Board person reasons such is or was not of in an unconstitutional man- good moral character.” ner. Chapter 9-12, 66. Section Gon.Stat- 61. Rule 5. Conn., utes of Rev.1958. 62. Rule 77. Constitution, 67. Section Article Constitution of 1901. 63. Rule 10. Constitution, (6398) Section 2-704 variously appears 64. This in Rules 7 Const, (This Paragraph IV, 1. § art. except or 8 of each of the for Circuits provisions is one of the alternative Circuit, the Fifth. practice admission to this write.) those who cannot read and before District Court is re- quired, LSA-Constitution, VIII, and since Article Section this district requires 1(c). Statutes, admission to the State Courts of See also LSA-Revised requirement Mississippi, imported Vol. Section Ch. Title is

953 applicable to Appeals written a definition have supra, 323 F.2d registration applicants all for voter approved Ala- the Fifth Circuit good would of the licenses mentioned requirement moral charac- bama undoubtedly in a proper have cumber- ended written that a condition ter wordy some, Mississip- could have provided. enactment examination is meaning nothing very provide to the inherent supra added pi outlined statutes might well stringent words themselves and requirements for such hear- efficient and ing their have detracted as to moral 3217-01 § character. application.71 through effective 3217-14. § registra ^Requiring applicants for good requires Mississippi presently good qualified moral tion as electors ofbe of: moral character patently is is character reasonable Operators 3495 § Taxicab discriminatory on the basis race. 5156 Incorporators Banks § allegation note that there We 5165 § Bank Examiners Negroes charge moral have bad 8632-09 § Architects Attorneys though trait, racial character as a even § allegation per in would not se Barbers § validate the enactment.72 It does dis § Dentists way in a criminate —but in no Embalmers § wise unconstitutional. It bars those § Nurses every moral bad becoming character of race from Optometrists § beyond voters. itWhile § Pharmacists prerogative Court’s to commend the Physicians § measure, enactment of such a authority do have we Podiatrists § say that such an enactment Accountants § entirely is petence within the constitutional com 8914-07.70 Veterinarians people Mississippi. regulation is a calcu argument pointed out Counsel improve quality lated the elec good require majority of that a states though might torate curtail its num applicants for licenses moral character may justifiably thought This ber. engi- barbers, architects, attorneys, pathway government. to be a to better neers, doctors, undertakers and medical objects Complaint embalmers, pharmacists, require- real The estate to ground public that, salesmen, on ac- ment since more veterinarians Negroes registered, than whites but few exam- are now countants. These ples greater impact has numerical will fall the term wide use that Negroes. argument legis- statutory on This in statistical found situations where legal logi- sought privileges without merit.73 also It lacks lative bodies to extend worthy thought provision applies equally cal merit. The to those whom it citizens every unregistered person every to of confidence and trust. We mention race, good now and for all to It to time come. these instances demonstrate that partake widespread invalidity not has does de- moral character found meaningful States, acceptance tected v. United as a concise and Guinn description of an L.Ed. a desirable attribute Wilson, supra. v. It and Lane cases to to be These citizen. ing. seems us self-defin- Any legislature attempt involved situations to where the electorate might employ along it lino. 70. All that that Cf. references are to sections of the Gani, D.C., F.Supp. Mississippi Petition of Code of Annotated. agree We with the court Raabe v. Mississippi, 72. Williams v. State, App. 119, 7 Ohio when it stated 583, 42 L.Ed. “good phrase that moral character” supra; accurately Legis- Mississippi, defines 73. Williams itself as as the Hughes, supra by any lature could define it other Snowden terms Mississippi. alleges exclusively pro- It The white. law had been paragraph practically last regulations applied visions of the of Section ex- new clusively Negroes 3209.7), exemp- (and Mississippi 3209.6 Code of because the to 1942, Annotated, registered whites are unconstitutional all to was extended being perpetuity. posterity In conflict with and. void as their contrary requirements frankly of Title- Wilson, dis- court Lane v. Rights Ill of Civil of I960.74 problems Act amendment cusses solely provisions require The Act elec- this situation cure offered voting Negro tion officers to retain certain rec- race. inevitable of the terms period twenty-two ords for a months. provisions struck down of the result that, discriminatory provide racially It is not The statutes result. pending- appeal applies new eases where there here. This enactment so particular application registrants Negro alike. where white registrar abandoned, been waived “the registra- present voter If statistics required preserve is not to retain or figures compared can tion as census provisions here- records under made make a climate would create of.” and valid enactment otherwise wholesome discrimination, If this statute were to construed as- then be void because of race requiring registrars destroy governing every requirement vot- records other named, ing newly under the it would or covered circumstances enacted —whether similarly antiquity at most be in conflict Federal void with the with be —would (42 1974). does Each such Statute U.S.C. It not on same basis. statistical requirement required do making any so. words “not to re- enactment necessarily interpreted tain” registration should not be mean affect would “permitted destroy.” this con- the other and With of one race than more plaintiff’s theory, struction the in. invalid. State statutes do thus under any way figures with are considered conflict Federal enact- If census registrar comply atmosphere, If ment. does not same sterile and unrealistic provisions III, they discrimina- Title he can- demonstrate race justify noncompliance flagrant his states the' tion must be most any compulsion portion basis of derived of the and midwestern northern construed, few, any, Act. if must be Ne- nation because permissive only, readily groes since can found there. susceptible fact, of that construction. good Plaintiff moral contends susceptible we cannot see that it is requirement ra- character “facilitates” other reasonable construction. These say discrimination, cial but do not concluding paragraphs of Sections- how, objecting lack of than 3209.6 and 3209.7 are constitutional. statutory us definition. It seems to legislative definition, that a which could Mississippi' Section heavily constitutionally that, on bear more mandatory Code of 1942 makes it pe- some racial traits undesirable complete applicant spaces an all blank Negro group, culiar to as racial application “properly form and re might “facility” just such constitute sponsively” sign together same, and avoiding is instead it. It our view required with the oath. sufficiently that the words are direct 3212.5 Section Code self-defining. plain to be 76requires registrar of 1942 endorse to “passed” application the word on the XIV. qualified applicants, form of it the makes responsibility Complaint applicant The next turns its at to make statutory inquiry tack to the to law of determine the State whether he she 74. 42 U.S.C. 1971-1974e. House Bill No. 1962 Session. 75. House Bill No. 1962 Session. Constitution, provides when passed, it conferred endorse- necessarily citizenship, did not con- or “not of “failed” of the words ment right suffrage.” good on fer the be endorsed to moral character” application forms. unsuccessful Reese, In of United the case States v. charged sections 92 U.S. court L.Ed. two It is these by es- stated: racial discrimination

'“facilitate” formal, tablishing or inconse- technical “The Fifteenth Amendment does grounds quential omissions errors right suffrage up- not confer the agree. disqualification. do We anyone.” on registrar required is the statutes 'The Blacker, In McPherson v. all forms of to make this endorsement ;(cid:127) L.Ed. S.Ct. it was stated regard applicants to race. all without right “The to vote intended respon- also makes it statute right protected to the refers to vote inquiry sibility applicants of all to make established laws and con- applica- the status their determine stitution of the state.” challenges Again, unac- are tion. companied these Pope Williams, any allegation fact 48 L.Ed. the court stated: against a racial the statutes directed privilege responsive proper “The to vote in state com- trait. The given by pletion by applicant is not tion, is the Federal Constitu- a form neu- by any race, of its amendments. creed and color. re- tral on privilege cannot, opin- springing is quired in our endorsements citizenship of the ion, facilitation racial States. constitute * * * privi- words, anything, In other would discrimination. If. lege complete by requiring in a vote state within the a more hinder jurisdiction regis- itself, of the state to be of the action taken record may direct, exercised as trar, available which would be may challenge terms as to it his action. of a event proper, provided, course, seem ground invalidity involves Another discrimination made between of the statutes. We fhe numerical effect individuals, in violation of the Fed- rejected previously discussed eral Constitution.” ground as a which uncon- vehicle recently Northamp- may As deprivation as Lassiter v. be establish- stitutional County Elections, supra, ton Board of ed in with our discussion connection good requirements court stated: moral character n 241-A of the Constitution. Section long “The States have held to been to those here. adhere same views We powers have broad determine right of conditions under which the It is next that these statutes contended suffrage may application hypo- be exercised.” into a (cid:127)convert the form examination technical unreasonable We assume that Missis- the State of arbitrary which constitutes an restric- sippi must believe that the information “right tion on the exercise of the required application forms on its voter thought unnecessary vote.” It necessary proper information here the status of the Fed- reiterate qualified unqualified determine the sovereignties eral and in relation- applicant require- status of the under its suffrage, ship ap- but it believe, ments. If it did not so then the pears to us to be of sufficient a matter requested; information should not be indulgence. moment warrant to believing but, required, it to be it seems Happersett, completely Manor v. 21 Wall. to us that it within prerogative L.Ed. to demand form pointed completed properly responsively out: and registrar nearly ninety years peo- and that writ- a full “For make ten If it is ple upon record of his actions thereon. acted the idea that exacting examination, authority we do and white citizens to harass —which Negroes. so, not determine it be-—it is one which Even to it is true likewise requires power to be administered that the ity the statute statutes vest and author- regard Negro race, whites, without to or color. creed citizens to harass beyond Negro jurisdiction Negroes, It is of this Court citizens to harass question. to white citizens to harass whites. The pow- choice as to to whether exercise the We do not find that these statutes vest purely pri- er conferred or not is one of arbitrary power unlimited discretion or subject vate decision not to the mandates registrar. “properly” in the The words of the Fourteenth or Fifteenth Amend- “responsively” indicate to this Court regard ments. With to the contention enough intelligent definite standard objective provided standard is to application. comple- and consistent The grounds challenge, limit the we dis- signature ap- tion of the oath and also agree. grounds The to the are limited pear requirements to be normal on their good applicant moral character of the tricky application face. No form is al- requirements appli- and other which the leged does, fact, or exhibited. If it qualified cant must meet in order to be to operate “trip” applicants into a dis- register to vote. qualifying again omission, operates indiscriminately of race or color. Even challenge the re- is made thought if require- we it were an unwise arbitrary onerous, quirements are ment, we cannot for that reason alone challenges di- are unreasonable. These find it to be unconstitutional. After a legislature’s in the wisdom rected careful review of the statutes themselves any and not of the statute enactment light objections in the made, of all we grounds permissible ob- of constitutional opinion are of the that Section 3213 and grant jection. in the We do see Mississippi Section 3212.5of the Code of registrar authority to take the 1942 are constitutional. challenge of a under advisement matter regis- power unlimited to forestall upon The next attack is made Surely the tration on a racial basis. Mississippi Section 3212.7 of’ the Code contemplates be inter- and must statute preted through of 1942 and 3217-01 Section require action on reasonable 3217-13 of the Code part officer of the administrative requires 1942.78 Section 3212.7 discharge of the conferred duties registrar publish name ad previously him under the authorities every registration applicant dress presume that We cannot mentioned.79 vote, for two consecutive weeks. The correctly impartially ren- he will not publication paid cost of such is to be out each citizen his due. der general county. of the fund of Four again have statutes whose Here we days pub teen after the date last wisdom we are not to debate. free regis lication must be allowed certainly feel could challenge by any qualified trar for elector community should be advised each county. period After this of the names and of its mem- addresses registrar required proceed to de through the bers who seek exercise applicant’s qualifications. termine the political the franchise to control its fate. through pre- Sections 3217-01 3217-13 certainly power It is within the state’s challenges procedure scribe the solemnity that additional determine hearings concerning challenges formality should added to the act made. registration. application for We alleged say requirements These two statutes are to be unable to that the power unconstitutional because vest these bear no rela- reasonable statutes Hughes, supra. 77. House Bill No. Session. Cf. Snowden v.

78. House Bill No. 1962 Session.

957 valid and constitutional. interpreted üonship poll nation of the to eliminate the tion 3209.6 of the tion of tionality poll to discuss further the contentions As to the tion of We, therefore, hold thought subject all ma.” If the nomination that a application criticized Amendment amended immaterial. Sections 3217-01 move reference tive Complaint of race 1942. Section 3232 was amended so as and due good a situation where the state but it would be further ment to the Constitution of serve that this designate States.82 part permitting registration, primary, books. Section books, office, view the new statute moral good Supreme where to criticism for process to be on the “horns to a so of Section section of our violates as to the form to contain a demonstra designation of we could state to as to left moral character. character statute81 general or the Now, race destruction of having requirements, Complaint challenge legitímate appears race Code of 1942 we deem papers clause of the Fourteenth Court, this requirement through make ruling on the constitu- requiring race of candidates for elec having race, designation Section 3212.7 3209.6, done Fifteenth last Code requiring 241-A of the elector voters provision and ballots shall special elections, making equal protection pertinent Section might it state it finds itself constitutional, race 3217-13 to be so. categorically acted to records, prerequisite unnecessary it would be in addition of a dilem- 80 term, for requiring could be from the and Sec a record interest. Code elimina- Amend that, 3232 of also be section. of race for the United county desig held was was ob- re- we believe turn on a tions or lieve inquire Everson v. Board of Education of legislature wholly L.Ed. 711: Justice Black cautioned in the case of road Co. motives of such an ing L.Ed. And 3209.6 to Use of Platenius v. Township, portuned too those U.S. Mississippi’s in this if sense of 32, Darby, seq., wealth of though solidated We hold We would state’s supra statute down S.Ct. we light long taking state, “But must not strike that state see the discussion and in Palmer did not who 960; decision, S.Ct. unrecognized. supra, 26, 27, 28, 52 L.Ed. 111].” power. L.Ed. into the motive or any given presumed improper 207 U.S. In all of these case proportion inquiry opinion v. we it would be no it determination not its constitutional 330 speak than it would be to Street Massachusetts, valid and..constitutional. Tennessee, and Hans v. our 16, Section approaches draw hardly Constitution Court to 991; Memphis judges do not withholding question U.S. 63 L.Ed. or the executive branch comments See if it sufficiently to be for the United States supposed Ry. F.Supp. ^[79] out this situation.83 As Mr. 1, Arkansas, 20 How. feel that a of a court for mak 3232 and Section v. 33 L.Ed. Interstate Con of this Co. v. After propose strike down 67 is within the at made statutory 108; Ohio, being more Louisiana, power above, validity 85, at S.Ct. already object Holmes, J., executive ac secret inten U.S. motives. Common verge having question in pp. & C. as to the Beers 88, fitting power 248 U.S. observed say statutes 504, permit we be Ewing even 176, proper areas, [28 much must leave Rail- sub- im- In 91 et Wiener, Bill No. 1962 Session. v. House 83. Fernandez 326 U.S. 116; Sonzinsky L.Ed. 66 S.Ct. Supp.) (1960 81. LSA-Revised Statutes States, v. 18:1174.1. 554, 81 L.Ed. 772. See also the article Martin, 84 S. and cases cited Footnotes 21-23 Anderson Darby Daniel, supra. opinion in Ct. L.Ed.2d 430. readily position ad- people That was stantially therefor. and the all which bar, during it is legislature mitted counsel at but written have years tragic, 42 U.S.C.A. ex- contended that tedious, § in which sometimes necessary pressly provided gov- such author- to maintain endeavored analysis A ization careful representatives for this suit. laws, ernment this reveal of that of the statute will pray section Union here Indestructible Indeed, fallacy system of that contention. up a substitute this Court set granted expressly the authority was United States voting qualifications Negroes, ask- for against bring certain suits ing to that we preventive persons for relief certain to Order said defendants “7. Rights against violation of Civil certain any register Negro ap- as a voter Mississippi is The State others. registration plicant pos- who simply person as en- not such was following qualifications sesses not de- visioned that statute. registering none of to vote and grant signed, national or intended to disqualifications as forth in set authority sovereign any to blanche carte Mississippi Constitution any arbitrarily capriciously select 1890: law, package of a which of laws state “(a) He is a citizen not less invalidated, it claratory de- desired to have years age; twenty-one than by a test in manner relief “(b) has been He resident constitutionality of the thereof. state, county and election dis- sovereign suability The prescribed by period trict for the law; Mississippi by in this the United States presents question at that serious case read; “(c) He is able to Contrary very of this suit. threshold “(d) He has been convicted herein, question pre- no dissent any disqualifying enu- crimes sented, by anybody in this relied merated Constitution immunity a state case to afforded laws of and is not in- by the to Federal 11th Amendment sane.” perfectly clear in this Constitution. It is Complaint, amended, The fails thus find case United States must to a claim state relief express authority in 42 U.S.C.A. § n canbe granted and should be dismissed (c) bring suit, or it without prejudice, prayed

with and the relief authority in this case to sue the State judgment A .should be denied. accord- Congressional Mississippi. Act This ingly, costs, with will be entered. very carefully right limited bring a United suit under States COX, WILLIAM HAROLD District offending person act person by depriving another Judge (concurring): him of under majority opinion of the Court preventive act, and for relief. Ordi- case, prepared by Honorable Ben narily, “person” not in- the term does CAMERON, F. United States Circuit municipal corporation, clude a or a Judge, very forcefully correctly de- unless the inten- the statute itself makes case, unconditionally cided this joined and I very Significantly, do paragraph clear. so executing opinion in that 1971(e) the last contains consequent judgment Court, Congress its own lexicon. made clear my but wish add therein concurrence things that prerequisite the word “vote” meant all expressed. as herein including regis- voting, necessary Initially, vote, prop- and as a tration fundamental where casting having application, osition of universal the ballot and it counted. phrases authority Other had in- known words and States well comply specifically or maintain this in the ab- were defined stitute suit legislative Congress express statutory sence authorization intent.

959! ordinarily not con- Then United States v. State of Ala- that a knew state bama, D.C., F.Supp. purview person 720, within the 171 the district a sidered character, speaking legislation and it did court of the 1957 this Civil. legis- Rights carry Act, person proper said that a did in- out not deem sovereign specifically clude act or mean a state. On. lative to make this intent sovereign appeal per- state as a that decision in United to extend to a States clearly provides Alabama, (5CA) v. F.2d that: State of 267 This act son. reiterated, engaged, 808, very strongly any person has or Court “Whenever grounds amplified that view. The Court- there are believe same reasonable engage person any in that case said that the state of Ala- is about to person any deprive pur- practice bama was not a would within the act or Rights any right ap- person any privi- view of the 1957 Act or Civil pearing Yet, lege (a) (b) 1971(c). 42 U.S.C.A. subsection secured year present Attorney section,” almost a later when the act- this then General may 1960, attempt was amended in in the was- institute civil action by Congress change any preventive made make name the United States Congress the first two Then sentences act which' relief under act. this appeared exactly verbiage provided in the same as- in such a suit United Rights ín the 1957 Civil Act. shall for costs the same States be liable person. private provides as a The act statutory A the- intent authorize that if either a state official violated sovereign States to sue a paragraph (a) paragraph (b) of that lightly not to be inferred. Such author- section that the state be made ity found in in the. must be a statute party (not suit relief very clearest terms before Federal against it) pro- but as a conduit mere jurisdiction will Court of a assume preserve jurisdiction cedural vehicle to sovereign state. v.. United States oifending died, where officials Alabama, supra, Judge Hutcheson as- resigned happened in the Alabama judge, speaking chief 267 for the Court provi- situation which was met page 811, F.2d at said: “Absent such sion in the act. But state of Mis- specific conferring jurisdiction, a fed- sissippi simply person not a within not, court eral would could not- indeed concept act, of this and is not suable in sovereign jurisdiction assume over a S., this case. In Sims v. U. 359 U.S. precedent state without a determination S.Ct. L.Ed.2d it is said though that, jurisdiction had not- ‘person’ when “[w]hether term expressly language conferred, been used in a federal statute includes a State of the invoked statute carried the neces- abstractly declared, cannot be but de- sary, implication the unavoidable that- pends upon legislative environment, congress gravest considera- Helvering, State of Ohio v. U.S. thought tions after the utmost 725, 727, 1307;] 370 [54 S.Ct. 78 L.Ed. con- deliberation had intended to and did Georgia Evans, State of 316 U.S. fer it.” 972, 973, S.Ct. 86 L.Ed. [62 1346.]” The State Board Election Commis- Pape, In Monroe v. S.Ct. (composed Governor, sioners the- 5 L.Ed.2d the Court held Attorney State General and the Secre- municipal corporation was not within tary assigned State) statutory the ambit of a statute which related to prepara- duties in connection with the person might deprive who a citizen of applications tion of forms of which the- a civil under U.S.C.A. § registrars qualifica- testing use That same rule was followed the Court register applicant tions of an to vote.- Egan City Aurora, acting are thus in: These commissioners 741; L.Ed.2d where the legislative discharge capacity in the municipality are, held that a is not a therefore, not: function ordinarily person meaning amenable to suit. But their act. within the said registration exactly discharged forms blank official when have been duties Legisla- applications as directed forms of release these counties; registrars ture. use Board of Elec- gravamen complaint and the in its of this thereafter have ab- entirety tion Commissioners Mis- is that two sections registra- nothing solutely to with the sissippi Constitution, do and six state stat- any voters, conduct of tion of or the implementing those constitutional utes complaint of as to The the State election. all unconstitutional and void sections are Mississippi, State Board and as to said opinion The of the United States. the therefore, is, of Election Commissioners case and under in this acts laws attack clearly any possible on its without merit Mississippi 241- are Constitution § complaint (all does not aver that face. The A1 and 244 and six statutes state designat- the Board Election Commission- statutes) of to as referred herein anything, (Chapter Mississippi or threatened to ers have done ed as H.B. 900 (Chapter 574, 1962),3 H.B. 901 anything prepare Laws than those do other registered he be able shall not be unless “Section to all other addition 241-A. of the any to read and write section be of a to required person qualifications give a rea- register and constitution of this state of the purpose to entitled becoming thereof to the interpretation sonable elector, per- such qualified a registrar. good county He shall demonstrate moral character. son shall be registrar Legislature un- county the reasonable to to have the power shall obligations derstanding of the duties and by section provisions enforce of this legislation.” under a constitutional form citizenship appropriate government; he shall also demonstrate “Section 244 n in ad- Every shall, elector registrar that he is a county per- to the foregoing qualifications be dition to the good The per- son of moral character. any to and write section able read applying register make son to shall give and the Constitution of this State registra- written sworn, application thereof to interpretation a reasonable prescribed by tion on a form the state registrar. county He shall demon- exhibit- commissioners, board of election registrar a reason- county strate ing quali- facts and therein essential understanding of the duties and ob- able necessary fications to show he is ligations citizenship under consti- register vote, ap- and said entitled government. per- tutional form of plication entirely written, to be dated and applying register make son shall signed presence in the by applicant registra- written sworn, application registrar, county without as- by form prescribed on a to bo suggestion any from person sistance commissioners, board of election state whatever; or memorandum provided, exhibiting and therein the essential facts however, applicant if the is unable qualifications necessary to show that he by reason application write his register vote, ap- is entitled to said his disability, same, physical entirely written, to be dated plication disability, oath of such shall written be signed by in the applicant pres- by at his dictation the coun- unassisted registrar, county without as- ence registrar. originally ty enacted each As suggestion any person sistance and it provision is is further declared to whatever; provided, or memorandum mandatory ap- be and not directory; however, if the unable applicant plication should have been and shall not application by to write his reason of phys- be declared approved applicant ical disability, same, upon his oath register qualified to to vote unless all disability, such shall be written at his blank spaces application and the reg- by the county unassisted dictation oath properly responsively filled Any qualifica- istrar. new or additional out as applicant; oath, imposed tions herein shall not be re- signed such, shall be applicant; reg- quired any who person duly application, such, shall be qualified istered and elector of this state signed separately applicant at Legisla- prior January 1954. The places provided thereon for applicant’s ture shall have the to enforce power signature. Provided, however, pro- provisions of this section appropriate visions imposed herein shall not re- legislation.” quired any who person duly was a register registered 3. “Section 1. Person not un- qualified elector A person less he can read and write. prior January 1, 1954; except 1962),4 (Chapter H.B. 905 H.B. 904 Laws Laws 1962),5 1962),6 569, Mississippi (Chapter 572, (Chapter Laws H.B. Missis- idence; applicant takes; date of what oath from and after the effective if tliat permitted person person more than one act no shall same name precinct, applicant register he what name unless demonstrates good called; applicant county registrar moral wishes to be that he is of whether convicted, required by provisions so, has been and if when and character any where, of the crimes referred to 241-A of the Constitution Section any pro- Mississippi. Section Section 2. Should Constitution of Mis- sissippi, theft, arson, bribery, unconsti- which are of this act be held to be vision obtaining money pretenses, invalid for under false or otherwise tutional forgery, perjury, reason, holding shall not be con- embezzlement bigamy, validity ap- and the moral affect the character of strued to plicant; designed ability part portion all of this act. to test the applicants registration of for to vote Mississip- 4. “Section 1. That Section any to read and write section of the 1942, Recompiled, pi the be and of hereby Code give Constitution of this state and fol- to read as amended same interpretation thereof, reasonable and poll The Form of book. lows: 3232. county registrar demonstrate poll shall of each election district book understanding reasonable of the duties top printed of or written at obligations citizenship and of under a designate page the elec- words to each government; constitutional form of and to used, it is to be tion district for which county registrar demonstrate to the applicant that columns, appropriate and be ruled shall person good ais of moral char- headings, printed as fol- or written with required by acter as Section 241-A of registration; name of lows: Date of Mississippi. ap- the Constitution of Such electors; age; blank and a number of plications designed shall be to exhibit All for the dates of elections. columns qualifications essential facts and register within four before who months necessary person to show that such regular any election shall be entered register Copies entitled to and vote. of immediately poll after such books application such blank forms shall be poll election, before, and not so that county registrar delivered to the of each show the names of those books will county, copies sup- and such shall be qualified to vote at such election. When plied county registrar to each as need- election commissioners determine required by ed. The oath Section of disqualified voting, any elector by the Constitution shall be administered being delinquent tax, by poll for reason of registrar. supervisors The board of precinct, or removal from the other proper is authorized to make allowances cause, on the fact shall be noted supplies reasonably necessary for office registration book and name shall be his by appeal this act. If no has been or poll dis- erased from the book. After provided by is taken as ing law from the rul- delinquency qualification for has been re- registrar any application subsequent years, name of moved registration, any application for or if for shall be reinstated on the such elector registration is abandoned or waived poll re-registration, book without applicant by making the application therein another registra- fact be noted in shall registration any before tion book.” judgment final or decision been ren- any prior application, 5. 1. “Section The state board of election dered on or other- shall, prac- same, as soon wise commissioners as waived or abandoned registrar required and thereafter at such as ticable times is not to retain or may preserve any advisable, pro- deem consistent record made under the * ** Constitution, prepare ap- Reg- of visions series hereof. 2. Section plication blanks, including register registrar oath of istrar voters. The offering person register, register registration in com- shall on the books pliance of with Section of the Constitu- the election district of the residence state, including person anyone appearing tion of this of such blank before furnishing information, him, being, upon found, forms of examination showing application, compliance of date which shall with Section 244 of the Con- registration ap- stitution, amended, compliance date of if as such and in plicant approved registration; with Section 241-A of the Constitution of applicant; age; occupation ; registered name of to be entitled to be on; employed, elector, upon person taking where business carried if as an such by whom; place residence; date such began; previous place Page residence of res- 6. See 6Note on 962. required by as Section moral character required Mississippi. subscribing 241-A of the Constitution Sec- the oath b3' Mississip- any provision Section Should sec- tion 242 of the Constitution Jf. may persons pi; tion of this act be held to be unconsti- be entitled who but any provisions register Section tutional son, otherwise invalid for rea- under the holding Mississippi, who shall not be construed Constitution of validity any disqualified part reason to affect the other would be otherwise portion age, modified of this act. the oath take subscription circumstance, and the sufficiency and the “Section writing his elector the oath shall be made the statements truthfulness of regis- proper column in the name vote, register application * * * Form book. Section tration thereof, good moral and the the contents registration registration books. register applicant character of following form: to be books are They material, and act is- to vote top printed at shall have require- adopted to further enforce pages prescribed Sec- the oath register set out to vote as ments to Missis- tion 242 of the Constitution of laws the State the Constitution appro- sippi, shall be ruled and beneath qualified Any Mississippi. Section 2. headings columns, priate may challenge county elector of the follows, respectively, printed shall be applicant any good moral character registration; of elec- names viz: date requirement ap- tors; age; occupation; where business days (14) plicant within fourteen to vote by whom; on; employed, place if carried publication last of after the date of the district; oath in the what of residence applicant of such the name and address per- If more than one does elector take? registrar by filing in an affidavit with the by district, what of same name in son duplicate setting facts which forth appellation to be does elector wish filing challenge Upon based. the the is met of Has the elector all the called? challenge registrar any shall of such the requirements 244 of the Con- of Section thereafter, days (7) exclu- within seven Mississippi, as stitution of amended? filing of the such chal- sive of the date of require- Has the elector met all the by mail, lenge, applicant certified send to 241-A of ments of Section the Consti- on to him at address shown addressed the Mississippi? Signature of elec- tution copy application, of such af- the one tor; column headed remarks. the date, fidavit, time and and notice of the reg- oath elector take?’ the ‘What does registrar place will hold an where the ‘general,’ the word if istrar shall write hearing to determine the administrative sufficiency general pre- take the oath the elector application or chal- of the ‘minister’s,’ scribed, the word or ‘minis- registrar, lenge. Section 8. The 3vlio- wife,’ if ter’s he or she take the oath county is au administrative officer by parenthetical as the sentence modified registrar, in he is here- which serves as ‘special thereon; and as the words to authority by power full vested with age,’ will, provided if the elector as in to hold and conduct such administrative Section of the Constitution Mis- thereon; hearing and his render decision sissippi, age become before the elec- may comple- he render his decision at the regis- proposed tion next after he to hearing may the or take the mat- ter; headed, in column the ‘Has the just may as court ter under advisement met, if elector etc?’ he has mot all the hearing do. Section Such shall be (cid:127)£. requirements-of 244 of Con- Section the registrar held in the office of the or stitution, amended, as 241-A and Section designated place by at some other the Mississippi, of the Constitution the county courthouse, registrar pro- ‘yes’ word shall be entered. And shall be set within reasonable time further, registra- vided when a new mailing after the of said no- date county in tion is ordered that new (2) judicial If be tice. there two dis- registration purchased shall be books county, in then the hear- tricts the prescribed comply to with the form here- ing be in the had the courthouse of shall provided further, persons in. And judicial application in district which the registering any registration in such new register made. his to is On own motion qual- duly registered books who were good shown, registrar or for cause the prior ified electors of to Jan- may change the date and time suck uary 1, 1954, reg- shall be entitled to hearing hearing. by reg- such At registration in ister such new books in documentary may istrar he hear oral and requirements of accordance with the law challenge of, of, support in evidence date; except in existence on said sufficiency ap- of, or denial persons registering plication, good all after the effec- moral character of the require- any good applicant, and as to tive of this shall bo date act 1962),7 (Chap- ready sippi and H.B. 903 footnotes access thereto Laws 1962) analysis set out Laws thereof. ter applicant in order decide within same and in the must meet time ment register provided qualified same as is now Sec- manner for an to be vote. registration registrar may appeal issue sub- tion 5. or denial The registration by registrar. poenas by Section served the Sheriff appEcant county secure their attendance as If or chal- lenger appear production of docu- does not at witnesses and the time and hearing. place by registrar at such Obedience set hear- ments any by ing subpoena 'may any challenge, may, registrar be secured discretion, hearing registrar filing Circuit his reset or may vacation, proceed Judge, ap- time or in and determine term whether petition seeking pEcant not, may enforcement, and the as the case be, quaEfied person obey subpoenaed the order shall under the Constitution and judge reg- therein. The laws of the the Circuit made persons Judge, person in jurisdic- ister Circuit vacation or term The vote. hereby time, registrar may whom the vested with decides appeal provided petition, just if tion to hear and determine such above hearing proper make orders thereon and issue had held. been Section appropriate petition process, Strict rules of evidence shaE be en- said place hearing provided shall at such forced at be heard time and herein may days’ specify (5) for. as he no- AAEtnesses five examined Section 6. parties. reg- applicant attorneys, tice to all or his challenger challengers istrar shall administer to the witnesses their testify attorneys. provisions who in said hear- Section IS. administrative ing provide the same oath as is used this act are intended to trial of cases additional Circuit Court. administrative where- method registrar require parties may chaEenge Section 7. The third shall the suf- ficiency testimony application register all taken before him to be competent good stenographer ap- taken a and the plicant, moral down character an reporter, transcript or and are not thereof shall and intended to affect registrar right, duty authority be the filed with and retained and the the registrar qualifications, as a record of his to office. AE costs of determine such proceedings may provided by law, chaEenge such be as now taxed the if no registrar by any party. in is accord with the made third manner practice pertaining to in the Chan- costs cery (10) days 7. “Section 1. Court under the laws of State. AYithinten after registrar reg- receipt by any ap- Section S. If the the the decision of the plication appEcant qualified register the istrar be that to to before is vote and register given sufficiency to under the consideration Constitution and is to the appEeation, registrar Mississippi, laws of the of the the he shaE shaE de- registered; reg- pubEcation newspaper be forthwith Ever for in a but if the here- appEcant quali- istrar finds inafter described the name address is appEcant ap- fied under said Constitution such as and laws stated in said registered, plication register pub- to be he shaE and shall cause same to be applicant ap- (2) the but shaE lished once mark his each week for con- two pEcation ‘faEed’; newspaper having but if in he finds that secutive weeks appEcant good general county is not of in moral char- circulation the where applica- appEcant appEed register, acter he shaE so endorse such has the upon to newspaper pubEshed tion and state the facts but if no which is finding good county, pubEcation the of lack of in such moral then shaE charac- newspaper pubEshed ter is based. Section 9. be made in At such hear- some ing registrar, appEcant adjoining county held the an or other but of any person persons general chaUenging county or circulation of the sufficiency appEca- applicant. truthfulness or residence of the Section 2. may represented by counsel, tion be The said name and but address be shaE under a applicant any pubEshed chaEenger may ap- newspaper in said pear pro they heading regis- ‘Applicants se in and on his own behalf if entitled: may pubEcation choose. tration to AVitnesses be exam- vote.’ AVhen said completed, proper proof ined or shaE have cross-examined as in trials in been pubEcation ap- the Circuit Court. Section 10. An be to shaE furnished peal may registrar preserved be taken to the Board of Coun- and same shaE be ty by any per- Election Commissioners against registrar may Page sons whom the 8. See Note S on any registrar complaint sort device however or clever con- as to the may registrar it be. County, of Claiborne cealed Amite County (all registrar County, of Pike must It be remembered this is not of Missis- District within the Southern voting registration case, It is a case. of this sippi, divisions in different but registration precedent a condition but registrar against district; of Co- voting Mississippi and the United registrar County, of LeFlore ahoma States, may plaintiff, preventive seek registrar County of Lowndes and the against registrar (as person as a relief County, divisions all in different official, indeed, private but not as a pre- Mississippi), District Northern individual) 1971(c) under on the basis § question. difficult a much more sents registrar doing or that such is threat- 1971(c) Surely, authorized § ening something to do in violation of against registrar 1971(a). bring is not stated U.S.C.A. a suit States any complaint any violation, of vi- that either these or threat one registrars did, Rights to do of a citizen ever threatened Civil olation of the statute, anything through citi- in violation of that but discrimination registrars any manner, were extent is stated that these zen character, appEcant good but moral be office. cost as a record Ms complied proof publication not otherwise thereof shall general county en- paid state to out Constitution and laws of this of its registrar legal vote, shall Sec- title him to then the rate for notices. fund at the days, appEcation (14) upon the the word fourteen endorse tion If within ‘faEed,’ pub- specifying, reason of the last without exclusive of the date aforesaid, therefor, so to do reasons of the name names lication appEcant publication, assistance last constitute the date after county, application. ap- qualified S. If other another Section elector of qualified reg- challenged, registrar, plicant otherwise than the shall good ister, prescribed by law, but fails to demonstrate manner good applicant registrar applicant is of moral moral character registrar finds, requirement applicant so must and the character applica- qualified regis- registrar shaE endorse order meet good registrar vote, char- within the words ‘not of moral shall ter acter,’ time, the facts or under the circum- and shall a reasonable why applicant appEcant stances, has finds not to whether reasons he determine J¡. good complied laws of moral character. Section the Constitution and qualified Mississippi applicant him un- If is not otherwise of of to entitle the State register laws fails said Constitution and and to to vote. der good he of moral to demonstrate that registrar registrar character, then shaE en- 1. When the shall the 8. “Section applicant appEcation upon to the the word determined that dorse have qualified ‘failed,’ register register to and endorse thereon the to vote has good character,’ the of moral but and laws of words ‘not under Constitution applica- Mississippi, latter on of he shaE endorse if he endorses the ‘passed,’ application rea- he the facts and word shall state equivalent applicant why mean- he to be or word or words of sons finds a ing, applicant good shall be entitled of moral character.” and the request regis- register upon for his person registrar, foregoing The footnotes and in NOTE: tration made reg- deputy deputy registrar, opinion BiEs if a refers the House or appointed. As now set out the com- has under attack as istrar been Chapter by law, person plaint required than reference to the they appear registrar registrar deputy where or a shaE the Session Laws the register any applicant. and are the same as those referred to It shall be reg- being applicant Mississippi responsibility sections of the of an for as majority inquiry registrar, as in the make Code 1942 opinion. contained istration to reg- registrar, deputy deputy if section of the Ses- or Each appears sepa- appointed, as sion Acts now istrar has to determine been though applicant passed and rate section of the such Code whether qualified register. If Section 2. references are to same laws. enforcing, application literally administering The law its and and as and enforce- eight written, package hand, completely and which ment with an even laws Signif- regard simply color, or without race this suit was filed to invalidate. icantly, gov- any bar, for the defies criticism of its at counsel tenable consti- any intention, validity. or tutional ernment disavowed charge any purpose by dis- the suit to Darby Daniel, D.C., case admin- crimination whatsoever F.Supp. 170, carefully and was a studied istration of one these statutes either prepared opinion judge court a three registrars. paragraph But these composed distinguished of three Federal prayer original complaint re- jurists Mississippi. That decision quested finding the Court to: “Make a constitutionality settled the law to the county registrars that the defendant 244, Mississippi Constitution 1890 § deprived negro have citizens implementing and statutes and decided 1971(a); secured 42 U.S.C.A. and § correctly appeal and no was taken. deprivations that such have been and are There, hold, the Court said: “We there- pursuant pattern practice to a of ra- fore, wholly plaintiffs failed cial discrimination.” complaint Nowhere establish that the amendment Section any charge, is to be found Mississippi 244 of Constitution any statement ultimate fact to the ef- face, 1890 is void on its because it fect that either one of the sections product hold, on base motives. We Mississippi (§ Constitution 241-A hand, the other said amendment 244) imple- § either one the statutes passed the statutes in connection itwith menting (Mississippi said Laws sections fact, are valid their on face and in 570, 571, 572, Chapters 569, legitimate are a exercise the State 574) wrongfully, and ly were or erroneous- sovereign right prescribe and en- applied any discriminatorily qualification force the of voters.” That grav- person. manner to colored decision is decisive most of consti- amen and sole basis the action again questions presented tutional here. registrars claim is that these suggested literacy It is very ap- test properly administered and is invalid plied alleged because of the laws which to be these are sweep registrar thereby of discretion afforded a unconstitutional, thereby and that giving applicant. a test to an claim has accrued to the United States. will im accordingly be noted plaintiff The mand, asserts de- regis plementing do not statute vest a preventive relief, but any naked, power trar with unbridled provided by relief which could arbitrary any application. action legislative enactment sense, honesty, play Common fair opinion in chief forth demon- sets guiding genuine stars inter strates. pretation contemplated as such is here. Precisely, reg- claim these Hopkins, 356, In Yick 118 6 Wo v. U.S. alleged istrars is that are to be en- referring 220, S.Ct. L.Ed. in to 30 gaged administering in these constitu- county laundry ordinance tionally being invalid laws. The claim designed put which was the Chinese specifically more that since 5% laundryman business, out the Court negroes registered, all adult and are since power given condemning in it said: “The approximately of all adult white 67% to them is not confidedto their discretion registered, disparity citizens are legal term, sense but resulting and cir- granted imbalance such purely to their It mere will. necessarily acknowledges operate arbitrary, will cumstance with and neither against negroes. guidance discrimination in The nor restraint.” Likewise fallacy readily apparent. Lightfoot, 81 of that claim Gomillion U.S. Page Page 2 on Seo Note 3. See Note 3 9G0. 9C0. guide lack of standards and because con- Court L.Ed.2d S.Ct. application of laws for in such lines was de- statute a state demned of fairness change The standard such terms. signed bound- and intended person of an honest Tuskogee and reasonableness ary substan- as to exclude so applying properly has been municipality. such test in tially negroes from the all judiciary a accepted generally amply complaint “The The said: require- compliance all of the full with alleges discrimination. claim of race play. process fair and respondents ments of due Against have claim suggested, in brief their never either vagueness not con doctrine does The countervailing argument, any mu- in oral appeared phrase in if it demn the even nicipal [was] Act 140 function which “moral Words like criminal statute. nothing designed There is “good behavior,” serve.” turpitude,” and has this Court which statute before ambiguous phrases nebulous such and intent, purpose or Sec- effect. appeared almost for have our statutes 1942, cap- 702, Mississippi Code century. have understood The courts con- to be tioned: “Rules —how words according applied them them phrases con- All words and strued: understanding practices common according tained the statutes are used respect De In Jordan v. thereto. ordinary accepta- common their L. George, U.S. meaning; tion and technical words but several Ed. “We 886 it is said: phrases according technical to their determining difficulty in times held meaning.” good char- The moral term marginal are whether certain offenses citizenship requirement for is not acter language meaning un within vague meaningless term. It must vague der does not automatical attack according be understood and construed ly render statute unconstitutional acceptation of to the common States v. Wurz indefiniteness. United phrase. It does mean define re- bach, 1930, 280 399 [50 S.Ct. U.S. quire prudery or matchless excellence 167, 168, Impossible 74 L.Ed. 508]. must moral conduct and It behavior. required. specificity standards requirement construed its context as Petrillo, 1947, U.S. States qualification suffrage ap- that the 91 L.Ed. [67 1877]. S.Ct. plicant possess accepted commonly language conveys test is suf whether the average good standard citizen ficiently warning pro definite as to the negro applicant moral character. A need by com scribed conduct when measured up not measure standard of understanding practices. mon Con highest community, class in his citizen nally Co., v. General Construction statutory but the standard would not be 70 L.Ed. [46 by measuring up met to the lowest stand- 322].” person might enjoy priv- ard of ileges who Savoretti, (5CA) Brukiewicz v. citizenship. does not term affirming F.2d 541. This Circuit in readily precise lend itself definition or findings good of the examiner as to the comprehensive exact standards. No defi- petitioner moral for nat character of a good nition of moral character ever uralization said: “A wide discretion is legislative attempted by any body been determining judge trial vested judicial Likewise, tribunal. no court ‘good whether or not moral character’ comprehensively has ever defined due exists. is to as that be determined process, probable cause, care, but due generally understood, peti term is but through ages down courts and the the up to tioner’s character must measure juries country of this average have resolved thou- that of the munity com citizen in the depending upon sands of in which he is controversies he resides before citizenship entitled to naturalizaton.” meaning the terms without a those suggestion containing States, 476, that laws In Roth 354 U.S. v. United 1304, 1498, ques- 1 77 S.Ct. L.Ed.2d invalid nebulous terms were themselves

967 However, it constitu is settled that the test is not the Court tion before obscenity personal principles tionality moral statute the indi of a criminal judge process vidual too court before whom to violate due because said may applicant come; vague support for crime. decision is to conviction be recognized “Many based what he or it decisions have believes be obscenity the ethical standards at these terms precise. statutes are current the time. Court, however, Day, Cir., con United States ex rel. 2 This has Iorio v. sistently 920, 921; precision Repouille 34 is not F.2d held that lack v. United States, Cir., 152, 153; requirements 2 165 F.2d itself offensive to the ‘ * * * Francioso, process. Cir., 163; v. due States 2 164 Constitu F.2d [T]he impossible States, Cir., require Schmidt v. United 2 does stand 177 F. 450, ards’; 451, 452; required 2d all that is is that Johnson v. United States, language Cir., ‘conveys sufficiently 588, 590, 2 186 F.2d definite A.L. warning proscribed R.2d 240.” as to the conduct when measured common understand 78, S., (5CA) 300 F.2d In Kahm U. v. * * ing practices *.’ United on for to an attack a statute in answer Petrillo, 1, States v. 7-8 [67 U.S. S. “Nothing vagueness is more it was said: 1538, 1542, Ct. 91 L.Ed. 1877]. These jury in- in a for a case common than volving charges words, applied according proper negligence, as for ex- judging obscenity, already standard for homicide, ample negligent to determine discussed, give adequate warning of the up proven conduct measures whether the ‘ * * * proscribed conduct and mark reasonably prudent of a the standards sufficiently boundaries judges distinct (2CCA) Levine, man.” v. United States juries fairly to administer ‘obscenity’ says: is a 83 F.2d “Thus * * the law marginal *. That there many variables, function of and the ver- eases which it is difficult to jury dict of is not conclusion of determine the side line which syllogism find of which are to particular fact situation falls is no suf really premise, the minor a small bit but language ficient reason to hold the too legislation hoc, ad standard like the ambiguous to define a criminal offense care.” * * Id., page *.’ at [67 U.S. S. Gundling City Chicago, In page 1542], Ct. at See also United 633, 635, 44 L.Ed. U.S. Harriss, 612, 624, States v. 347 U.S. note Chicago city an sub- ordinance of the 808, 815, 989]; 15 [74 S.Ct. 98 L.Ed. mayor question mitted Boyce Lines, States, Motor Inc. v. United party of a fitness cigarettes. to have license sell 329, 330, U.S. 340 [72 S.Ct. question This was submitted ; Ragen, L.Ed. 367] United States v. judicial the exercise discretion 374, 378, 523-524 [62 nature. No standards contained are 383]; 86 L.Ed. United States v. Wurz guide mayor in the ordinance to his bach, 280 U.S. 396 [50 S.Ct. 74 L. upholding decision. The Court in 508]; Hygrade Ed. Provision Co. v. said: ordinance Federal attack Sherman, 266 U.S. 497 [45 S.Ct. “Regulations respecting pursuit of a ; L.Ed. Washington, Fox 402] very lawful fre- trade business are U.S. 273 [35 S.Ct. 59 L.Ed. quent occurrence the various cities 573]; States, Nash v. United country, regulations and What such 373 [33 S.Ct. 57 L.Ed. 1232].” trade, particular shall and to what States, (2 Marie Posusta v. United business, occupation they apply shall CA) applicant 285 F.2d questions determine, was de- are state to citizenship good nied for want of moral within their determination comes character and proper police power the Court said: “Much exercise scope been state, regulations written as to of unless the phrase, and, inevitable, utterly extravagant as was there has so unreasonable and disagreement meaning. been purpose as to its in their nature 968 rights personal property of its own of the citi- voters states creation. unnecessarily, of the United and in a manner The constitution States zens are suffrage arbitrary, up wholly or of does not confer the interfered de- law, they anyone.” stroyed process function of on The sole of the without due voting beyond power of in this area is to the United States do not extend subject prevent 14th, pass, form no discriminations under to state gen Amendments, in 15th and 19th but As stated for Federal interference. prerogative Crowley Christensen, [11 of a is to condi eral state pos- suffrage 620], Mississippi Sup.Ct.Rep. ‘the fit. 34 L.Ed. as it sees rights enjoyment proper fit it re of all has seen and deemed session subject (regardless color, quire of conditions as a voter his to such reasonable good by governing origin) possessed may author- race or of deemed to be ity country requirement to the safe- moral That was character. essential good health, order, organic ty, peace, and morals law of inserted by the state community.’ is there 241-A of the Whether its insertion in state § delegation power complained a the com- is not constitution. It is good defined, mayor to the is not moral is not mon council term character guide question. supplied have no no a Federal We and that lines are case is, therefore, ordinance, application, as so far it doubt that the and that concerned, subject objection power capri is a naked above considered mere clearly registrar. power irresponsible of the state within cious will some obeyed authorize, Chapter accord- to ingly.” must be An examination of Missis Again Suttles, sippi 1962,6 Laws will Breedlove demonstrate anybody arbitrary ap L.Ed. action in U.S. voting good privilege plication not derived is moral “The such test States, is United but conferred character cannot administra from the by exist and, hearing pro restrained state save as tion of such law. A full is hearing Amend- for. Nineteenth vided must be the Fifteenth The entire Quick provisions by reporter. of the Feder- and other ments recorded inex Constitution, appeal pensive procedure condition al suffrage the state is written into general appropriate.” as it deems this act in to the addition sec appeals tions the administrative repeatedly It has been held that rulings rulings registrar. His may properly require literacy test as finality no and has conclusiveness precedent suffrage. a condition binding upon no the election com effect significant (e) paragraph that in of this missioners, circuit on court same U.S.C.A. 1971 in the fourth appeal. the second successive paragraph subpara- unnumbered of that Chapter graph, provision literacy Laws for a made being provides: is next assailed as unconstitutional test wherein the act “Where proof literacy being understanding with 42 conflict U.S.C.A. § an registrar pre- subjects pro- requires required which valid pa- law, records and serve retain visions the answer certain coming relating pers possession applicant, written, if included in into his shall be registration period report court; oral, processes for a if shall twenty-two stenographically months. taken down and a Section be transcript punishable report that volume makes it crime included in such imprisonment for a fine and the de- court.” The United cannot recon- States struction, concealment, complaint mutilation or al- with the cile its this case an- perti- Supreme teration such records. nouncement Happersett, part act assailed Minor v. nent States appeal provides has been

Wall. 22 L.Ed. when ruling applicant from a “The no taken held: United States Page Page 5. See Note 5 on Seo Note 6 registrar upon application negro register right his to to in vote application Mississippi. or aban- his is waived when This is not a case wherein making application sought against registrar for doned another for relief is a judgment registration registrars final de- before discrimination. charged These any applica- prior having applied cision is rendered on election required registrar tion, sovereign then “the is laws of this an state with even' preserve any to made un- retain record hand to all citizens alike. It does provisions Clearly, any der the a state of action of kind hereof.” require against registrars. state act does not a destruction either one these provides are, therefore, undeniably such records but We faced with any purpose. kept complaint need not be state a which fails to state claim simply and upon any The Federal act intervenes granted. which relief can be supersedes and overrides the state en- positive duty It is the clear and require preservation to actment upon Court to consider and act motions such records circum- even under those like these before Court in this case twenty-two stances months after an any unnecessary in limine forestall de Attorney election General enable lay expense protracted litigation. in investigate of the United States teaching That is the unmistakable within records said time after an election Coleman, such cases as Flanders v. any question to determine and resolve 223, 228, U.S. 39 S.Ct. 63 L.Ed. relating therefrom to that election. The 948; Press, Kvos v. Associated constitutionality of that state enactment 269, 278, 183; 81 L.Ed. gain- under such circumstances cannot be Mass., State of Rhode Island v. Com. of said. (37 U.S.) 657, 718, 1233; 12 Pet. 9 L.Ed. Issacs, (1CA) Walmac Co. v. 220 F.2d Actually, against registrar a suit 111; Battaglia v. basically General Motors a local action. It cannot be (2CA) Corp., 254, 256, 169 F.2d joint cert. de in treated as this as a and sev- case against nied L.Ed. eral county defendant action these six 425. This registrars Court in its of a entirely sep- exercise for their judicial sound discretion received and arate and distinct and disconnected considered the motions of the defendants performance activities done jurisdiction for lack of and for solely respec- failure done their duties their to state a claim upon necessarily the defendants tive That so in counties. granted, could be registrar relief where no in one of ease provided by 12(b), prop Civil Rule has ever done officialact counties erly sustained county legally those motions the rea and could not perfect sons indicated any fallacy when became if do so. But in law exists ly apparent observation, every registrar to the Court that there in that then possible complaint. eighty-four substance each counties necessary this state would and indis- 8(a) requires complaint Civil Rule pensable parties suit, and for to this lack plain forth “a set short and statement jurisdiction anyone whom, showing pleader claim proceed Court could not in their absence entitled to relief” and “a demand for under Rule 19. Civil judgment for the relief to which he diversity suit, This is not and under per- deems himself entitled.” That rule general application venue statutes in this Court mits full of the Notice Pleading any complaint which is local in nature can be action Doctrine filed only in instituted the district the resi- under this rule in a Federal Court. Nev- important ertheless, pleader enough dence the defendant. The must here, however, considerations lie the ultimate facts and circumstances re- charges complaint give adversary fact that the lied nowhere rea- some anyone registrars of these ever sonable notice under the rules of fair wrongfully anything any play deprive apprise did him of the claim asserted any against of in the execution of citizen conclusions him. Mere Similarly, not it is asserted pleader factual laws. ultimate such without some Commissioners basis, some that the State Election statistics without and bare Governor, Secretary (composed assigned of thereto other causal connection General) unsupported Attorney did and ever State anything insinuations or than shallow 8(a) prepare satisfy form of other than not the Rule inferences does requirement applicants plain application to of for use for a short and state- register, complaint and not asserted that their con- it is of claim. ment The legislative performed pages, thirty-five legal cap not ex- ar- action was tains Legislature actly ranged seventy paragraphs, as so is directed 569, 1962).5 Likewise, (Chapter equally Laws is as certain- not short and ly and any plain. of it is not one in McGuire v. asserted not Court county (1952) registrars Todd, (5CA) in this af- six suit ever 198 F.2d anything, any- Rights to or threatened do a of a suit did firmed dismissal by Civil infirmity thing those laws and than administer the trial court such Haley exactly as as Cf: written. Jack of substance here. Childers, (8CA) 314 F.2d where right all A to declare state “But a of law it is said: or, mere conclusion voting qualifications for within allegation here, conclusory a as naked government has the state. The Federal bargaining f contract violates ed- authority power, or in this no whatever statute, efficacy wholly erl has no is and any field, except prevent to discrimina- jurisdiction upon insufficient confer among any denial of the allegation tion voters and federal court such where any facts on is unwarranted asserted and citizen to vote account conti’adictory Any pleaded well facts.” of his race color. extension Stripped power authority of such conclusions deduc- such the Federal usurpation pleader, complaint government tions of the would be authority simply declaratory judgment up- case seeks state and an encroachment sovereign priv- this court “[T]he that two on its domain. declare sec- ilege juris- tions Constitution vote a state is within the itself, and six to be statutes enacted 1962 diction the state exercised implement may direct, upon provi- those constitutional as the state being provided, proper, sions as invalid. as to it terms seem States course, readily counsel at the bar questions admitted in discrimination made be- individuals, from the bench that discrim- tween violation ** * suit;

ination was not involved in this Federal Constitution. plaintiff upon 1971(c) question pre- that relied whether conditions authority suit, might regarded as its sole for this scribed the state authority that there was no others as reasonable unreasonable suit Williams, Pope expressly is not a found in act. Federal one.” unless 48 L.Ed. 817. is an absolute dearth notice There anywhere complaint Speaking Amendment, 15th found in this to be States, Court in ever vi- Guinn & Beal v. United one the defendants 1971(a), by enforcing except 59 L.Ed. olated § “Beyond exactly written. At- said: doubt the those state laws away constituting laws the back- Amendment from tacks on those does take machinery governments general the state bone the entire election sense alleged suffrage predicated upon power over which this state are the longed has be- governments to those be- constitutional weaknesses infirmities ginning, possession in such laws themselves. It is assert- without the power sov- which fabric ed that the State ereign entity the whole ever, anything to or did the division and national author- Page 5. See Note ly organ- very poor impover-

ity and the considered a Constitution under the rely glean governments would ished source on which to of both rest ization legislative legislative body support, author- intent. A and both the without presumed say means, ity fall and the state would what it of the nation very says. ground. fact, what it not within com- mean It is recognizes province any legislator of or the the member of Amendment mand possession the general power dispar- of a the constitutional convention to age reg- validity state, the of an of such the Amendment seeks enactment since legislative body by particular sub- materials of such as to the ulate its exercise say ject source. That does not that which it mean with deals.” eyes a Court should close its and ears interrog- answered United States The surrounding and facts circumstances an propounded defendants the atories clarity expression enactment when of depositions out of which and took some necessary it makes to resort to extrane- gossipy found and irrelevant material the meaning ous evidence to determine the dissenting opinion half of in the last ambiguous statute, and intent of an or This material came was lifted. herein constitutional section. But there political of a stu- from the thesis science nothing hidden, or or concealed built-in writing at Miss who was for his dent Ole to either of these statutes would Degree, probably with no Master’s validity. affect its These statutes and thought playing important of such an constitutional sections here contain noth- prominent opinion. in a and role court ing invidious, insidious, or as in Gomil- my conception firm of It is the law that (cid:127)lion, Wo, strongly and in Yiek so relied subsequently prece- or statements even on in the dissent. These election stat- made of a constitu- member dents paragons equity utes are of of treatment purpose tional convention as to its and of all citizens of both races alike. legal possible could intent upon effect prod- validity of convention According to the universal rule of Supreme uct. What judge Court some state statutory construction, very there is the said in a book on the strongest presumption in favor of the problems Constitution as before validity of each these statutes. It is the convention and its solution strange philosophy upon which seizes problem state, certainly could race every charge every of discrimination and relevancy production. not claim for its unconstitutionality claim of in a statute affording meaning, purpose opportunity as open an intent and of an if an unambiguous from invitation act must be obtained such stat- invalidate expres pre- act and ute rather than itself sustain it. That legislators sumption validity every sions their committees. must attend throughout States, (5CCA) 126 F. statute Marche v. United the trial of case Ogilvie only by Hard and 2d 671. United States v. be overcome the clearest and (5CCA) convincing Company, contrary. most 155 F.2d 577. ware evidenceto the permissible In this It is to allow dis case we with never are met the extreme- ly legislators, and friend tenuous claim cussions views that statutes in these ly unfriendly legislation, to this to such case were bred and born in an at- mosphere disparage validity inequity invalidity ultimate legislative body. product work Any such evils inhere therein to invalidate regardless impeachment in such manner them fairness and im- unambiguous partiality would with enactment vi which such laws function every estoppel. Fleming principal olate speeches administered. A. legislator Corporation, (5CCA) H. of a discus Belo 121 F.2d committee, Congressional speaking sions of an enactment debates reflecting Congress explanations as of a witness even before intent meaning, enactment, just in an as or inten it is said: “It is committee fact, legislation purpose of this of a statute is universal- because compromise, pro- desiring register the views of the citizen to vote and

ponents opponents, and of the as to the that such discretion was thus unlimited purposes legislative act, Yet, effect of the unreasonable invalid. regarded Supreme are never value a con- Federal said that it, struction of and that passed is settled law Constitution and laws pursuant prescribing quali- statutes must construed in ac- thereto legisla- investing cordance the intent of the fications of the voter and ad- expressed language large ture as the ministrative officers with a but meaning may determining act as a whole. Its not be sound discretion in what sought by vague pe- necessary qualifications, the courts citizens have the repugnant numbrae the wishes and desires of its cannot be held to the 14th proponents opponents merely showing or its these are Amendment on a they operate against in debates.” as a discrimination ^expressed complaint the colored race. As the states In United States v. Trans-Missouri 50(b)] [paragraph provid- 241-A, that § Freight Ass’n., 290, 166 U.S. 17 S.Ct. ing good require- moral character 540, 550, 1007, 41 L.Ed. the Court said: provided “an with ment additional device is, too, general acquiescence a “There in registrars could discriminate congress that doctrine debates against negro regis- who seek to citizens appropriate not sources of information merely to ter vote.” Such an averment meaning to from which discover nothing suggestion possibility a of a language by passed of a statute that by Court more which was discarded body. Co., U.S, v. Union Pac. R. U. S. v. of Mis- ineffectual Williams State 72, page ; Aldridge L.Ed. [23 at 224] validity sissippi, supra, to assail Williams, 469], v. 3 How. 9-24 L.Ed. [11 eight all of an act. Unless these J.; Taney, C. [Great Mitchell v. Works facially invalid, suit laws are the entire Milling Manufacturing Co., Story, &] legislative must fail. Environment 648, Reg. page 653, Fed.Cas.No.9,662; at body, of its member- even evil intent Q.B. College, 693, v. Div. at Hertford ship purpose and an unlawful cannot page im 707. The is that it is reason legislation to because serve invalidate certainty possible to determine with sug- thereof. It is not contended even put upon what an act construction gested unregistered people that all white body legislative the members of a registration apply who do not have by resorting speeches passed it to the requirements comply all of with who individual members thereof. Those satisfy package this laws and entire agreed speak did not riot have ma5r registrar to the demonstrate did, spoke who those who and those qualifications possess all of other; might the re differ from each register disqualifications none of the way being only proper sult may fact that such laws to vote. The legislative act is from the construe negro inconvenience discommode act, and, upon language oc used upon hardship him work a citizen even history casion, by resort comply requirements to en- with such passed.” times when was register vote, him to does title 244, Mississippi Constitution Section infirmity present any constitutional Su- 1890 was before the United States sovereign of Mis- such laws. The preme in 1898 in Williams v. State qual- sissippi to declare 213, Mississippi, 170 U.S. S.Ct. register ifications of its citizens to com- it was 42 L.Ed. where every qualifications vote, and one plained this 1890 convention repeat- in this have been state therefor against char- 244 discriminated Substantially edly approved all as valid. which ne- offenses to acteristics and the requirements of the State gro prone; and that members are registration uni- been vote have for use no standards section contained exception. formly approved without registrar applying to a his test

97B (5CA) Atkins, 323 F.2d claim the other defendants v. United States granted. (5CCA) Barnes, If 733; 65 F. which can this suit relief Trudeau validity 563; not an attack on the 290 U.S. S. were denied 2d cert. laws, only 571; on North but an attack Lassiter v. these election L.Ed. Ct. regis Elections, County 360 the thereof these hampton enforcement Board trars, judge it would not be a three case 3 L.Ed.2d 1072. U.S. Sealy Department as it is. It is said not a It is not a school case. This is Penn., al., of Public Instruction et public These col- case. accommodations (3CA) 898; 252 F.2d cert. denied desperately questions lateral 1139, 2 L.Ed.2d U.S. S.Ct. sharp to confuse the drawn into ease regulations or method “Mere attack validity non vel issues as to the and clear is not a statute of cient suffi enforcement laws. Sta- election these justify interposition frequently those resorted to tistics are Bransford, three-judge parte court. Ex without who find themselves advocates 84 L.Ed. [60 S.Ct. gen- support in the factual substantial 1249], & Co. v. Mor William Jameson Here, much is made at hand. uine issues genthau, 1938, 307 171 [59 complaint dissent about 804, 83 L.Ed. 1189].” negro citizens be- of the adult 5% registered ing adult while 67% machinery The election in this state registered. This citizens are white every contains safeguard constitutional negroes judicially nev- knows that Court against any possible invalidity, including interest manifested substantial er process. that of 3217-03, due Under § Mississippi prior voting registering or registrar Code appeal from President to them to a direct “who is an administrative officer of the Kennedy of such to do so. The weakness county registrar” in which he serves as apparent is when it is more statistics power is vested with the full and author- complaint in case this that realized ity hearings to conduct administrative registrars link to not undertake does upon any and appli- render his decision any responsibility and ac- therefor register may cation to at or the time he therefor; assigns tually no causal reason take the matter under advisement as a could not be truth- because it doubtless fully may 3217-04, court do. Under § Missis- many very that said and certified sippi 1942, provision Code is made for negro (possessing qualified all citizens hearings county applica- on such disqual- qualifications and none register. may tions to He sub- issue registrar ifications) applied had to some poenas for witnesses under 3217-05. register rejected. Sure- and had been 3217-07, Mississippi Section Code ly, qualified who did colored citizen requires registrar all testi- register and had never bothered care to mony taken him before taken down voting, expect his about could not to find by competent reporter transcript and a registration had roll unless he on a name thereof filed with and retained him necessary to do the exerted himself to 3217-09, Mississippi his office. Section put it there. 1942, provides applicant Code that an registrars parties may appear person are thus Since the at counsel purpose hearing may this suit instituted for the sole such a examine having eight package in a these laws cross-examine witnesses as in the circuit unconstitutional, 3217-10, Mississippi declared since court. Section case, therefore, 1942, provides appeal an in- does not involve Code for registrars anyone registrar stance where these decision of anything wrongfully deny County has done Board of Commission- Elections any negro register general pro- ers. A vote section of the Code county, appeal it this Court his must follow that vides a further to the circuit jurisdiction sovereign state, Supreme no court and even to the complaint Chapter 573, Mississippi and that fails to state Laws state. Negro appeal provides for an of its adult citizens the circuit more than 5% registered judge in or in on means term time vacation to vote. This good requirement public of white moral character rule comes from the 67% provision hearings and is act. Liberal adults who are. contest whether quick appeals discriminatory this is “Constitution, decisions differentiate the result system laws, usages” customs, this entire from others election Rights Act, which have been condemned because violation of the Civil registrar’s 1971(a). acts unlimited to dis- were U.S.C.A. § powers cretion contained naked big That is a one. It is contest arbitrary capricious actions controversy little or more between one final and were conclusive. Negro individual and individual voters Registrars. Negro all is between These election laws at bar Indeed, adults and State. it be fairly upon their demonstrate face tween all citizens the United States recognition application all setting, is fit and the ting it play State. impartial rules fair treat- protagonists appear to be ment all of both alike. citizens races they really what are—the United States majority opinion ensuing judg- Mississippi. and the State of The de entirety inment in its ease irre- question is, therefore, cisive whether the fragably I correct and concur therein. may maintain this suit States and whether maintained Judge BROWN, JOHN R. Circuit Mississippi. the State of Once (dissenting) : nearly everything decided, falls opening bars, In the the Court1sounds place, superficial into becomes matter of the theme of a clash between the inde equence.2 cons that is Once estab structible union and indestructible lished, analysis sketchy even the en indestructibility The tone of state. good. by forced time3 will demonstrate two history politi For tells us that no things. dismissing First, com cal institution is indestructible. If it plaints claim, for failure to F.R. survive, is to it must save itself from 12(b), majority ignores Civ.P. set peril destruction. It is the of destruc principles procedure. tled federal tion which is what this case is all about. Second, application princi on of correct state, nation, For no and no can survive ples, complaint the Government’s and the if, professing democratic rule of the supplemental showing by answers to in governed, flagrantly denies the vot terrogatories adequate is more than to- ing right through racial or dis class might demonstrate that the Government crimination. prevail part. in whole or substantial resulting dispute. facts are not in Such consideration of the constitu- candidly must admit that no expose tional attacks will also the ma- opin- decisions, 1. As discussion of court registrar defendants, son of three Part ions, etc., inevitably calls use VIII; improper reg- venue as to one terms, Court,” such as “the or “this defendant, VIII; Part or neces- istrar sity Court,” I refer hereafter to the Court’s separate reg- trials each opinion decision the instant case pattern practice, istrar to obtain a majority. Likewise, by as the the ab- finding remedy, Part VIII. Circuit,” breviation “Fifth I refer publishing opinion its without await- Appeals United States Court of for the ing preparation dissent, time for of this Judge Fifth of which Circuit Cameron majorty presumably thought it de- I are members. Supreme sirable that this case reach the See, example, dismissal of the State along with, long or at least not too (the of Election Board Commissioners after, appeal in United States Governor, Secretary State, Attorney Louisiana, D.C.La., 1963, (3- State of majority General) opinion VI; Part mis- would; Judge) F.Supp. joinder defendants, party I 353-403. of causes of jurisdiction objective. VII; per- agree Part lack of over with this misconception I. jority’s fundamental suit. the nature the Government’s May The United Sue States not, majority repeatedly em- is phasizes, majority IX, As I read Part de- attacking the statutes one clares that this of broad at- character seeking relief Nor it one their face. brought may tack the United be face, and on their statutes valid because “expressly States because it has been discriminatorily being fact, valid in applied. are Congress.” authorized to Act sue sup- 1345. To avoid some U.S.C.A. § posed constitutional on the restrictions is, sure, an im- Discrimination right sovereign of the national to au- portant element of the Government’s thorize itself to sue its own Courts sought thesis. But the discrimination rights protect citizens, of its practice proved, in re- to be both in majority 1971(c) reads 42 U.S.C.A. sult, greater For a far function. narrowly. (d) This leads to con- theory it seeks the Government’s —which although Congress clusion that has au- factually— opportunity establish pro- thorized suits the Government underlying simply Missis- this: The tect identifiable individuals from actual sippi provisions and the constitutional or threatened discrimination identifi- regulating statutory implementing law able State officials the administration being— registration into of voters came laws, may not, of valid the Government currently statute, and are maintained —out under this tacking maintain suit at- organized deny constitutionality purpose by of statutes provisions or State contriving constitutional Negroes to vote bring discrimination, only about like having appearance of structure wholesale. An reverse of odd the dis- having legality, known, but de- built-in King carded notion that “The Can Do effectually did, would, and vices which Wrong,” No it is a that an declaration discourage deny overwhelmingly right only indestructible nation can little Negroes’ citizenship. full effort toward big wrongs, not ones. understand- means—the immediate are a of answers which number There ing judged, both its test—must be First, briefly put. I can conceive segre- effect, by purpose The Four- of no hazard. constitutional gated policy wide and the education teenth Fifteenth Amendments disparity quantity quality legislation ample specific if is resources by Mississippi to its education afforded required. I have considerable would Negro legislation Likewise, specific is children. doubt that needed. white and such, always Jurisdiction, as while registration must these enactments be question, no mo- threshold is here of background -considered might be affirma- ment. Whatever denying an effective -officialState action grant jurisdiction, clear that tive it is voting Negroes rights by fortu- use of Congress prohibited has such suits. enough registered. One in- nate to be proviso of 1345 is 28 U.S.C.A. § Design teresting facet of this Grand irrelevant, thus balance speed apparent effectiveness imposes requirement section to Federal Court de- State’s reflex by suit the United “commenced States” congressional cisions or enactments by expressly Act an authorized tend, seem, or which to restore some Congress. requirement This latter Negro portion small “by citizens’ any confined suits commenced rights. agency the United States.4 or officer” of by proceedings “Except other § commenced the United 28 U.S.C.A. by by Congress, States, any agency provided officer there- Act of wise juris original expressly Act of courts shall authorized sue district actions, Congress.” suits of all civil diction 976 given in a situation Whether the Unit exist here. %fLBM§-£Í-íM?e.Problems standing Congress ed has to sue on behalf States has laid dowiftEi" substantive may present problem. 1971(a), prescribed But citizens standard in § go jurisdiction machinery rights it does not effectuate supposed. 1971(c) as is here And as to and has § invested the Dis jurisdiction standing trict Courts with 1971 to sue in of fundá § vindication (d). Under structure whenever rights mental, citizenship vital of a “any person,” State, which includes the Congress recognizes may kind enagaging any practice “in act or private pers vindicated at the behest aof any deprive person which would Judge on,5 join I Wisdom in with Unit * * * right secured subsec City Jackson, Mississippi, ed States v. * * * (a) Attorney General Cir., 1963, 1, 14-16; 5 F. 318 F.2d * * * may institute in the name of that, apart 2d 870. I would hold States, the United action or other civil Fourteenth”'Amendment, Com proper proceeding preventative re * * there, merce Clause Here, Fifteenth course, lief it is here, Amendment national invest categorically alleged that sovereign power in Mississippi to institute and the other named defend citizens, depriving Negro appropriate judicial ants are its own Court adult ac quali “who are otherwise promote tion “to the interest of all” “be, fied law to vote” their engrained eradicating patterns of official * * * entitled and allowed to vote conduct which with national “collides * race, color, distinction of *.” without policy as embodied in the Constitution.” course, phrase Of “who other Debs, 1895, 564, In re 158 U.S. 15 S.Ct. qualified by impor wise law to vote” is 900, 1092; L.Ed. United States benefits, Injunctive tant. relief or the 273, Co., 1888, San Jacinto Tin 125 U.S. machinery, 1971(e), of the referee ex § 279, 747; at 31 L.Ed. United S.Ct. qualified.” tend to those “otherwise Co., Telephone Bell States v. American narrowly But to read it as does 128 U.S. S.Ct. majority would make the inef statute 450; Sanitary

L.Ed. District of Chica virtually fectual and useless. “Other go had; States, 1925, v. United qualified” simply wise means that 425-426, (a) L.Ed. 352. there been either no invalid statu- 1983; Pape, 5. 42 section, Attorney cf. U.S.C.A. Monroe in- General States, 5 L. stitute for the United or in the (cid:127) Ed.2d States, name of the a civil action proper proceeding preventa- or other pointed out, 6. As the Court “Debs has relief, including application tive permanent for a standing been relied on as a basis for temporary injunction, re- in three recent cases this circuit: straining order, or other order. Lassiter, W.D.La.1962, United States v. States, proceeding hereunder the United F.Supp. 20, 203 aff’d 371 [83 U.S. 10 S. shall be liable costs the same as a 21, 47]; Ct. 9 L.Ed.2d United States private person. Whenever, pro- in a Klans, M.D.Ala.1961, 897; F.Supp. v. 194 ceeding instituted under this subsection City Montgomery, and United States v. any official aof State or subdivision M.D.Ala.1962, F.Supp. 201 590.” 318 alleged thereof is to committed F.2d 14. any practice constituting dep- act or a 1971(c). portion 7. 42 any right privilege U.S.C.A. § rivation of or secured Rights here (a) section, under discussion was Civil subsection of this the act 1960, 601(b), 90, practice Act § 74 Stat. or shall also be deemed that of “(c) joined the section may now reads: Whenever the State and the State be any person engaged party and, if, prior or there are as a defendant to grounds proceeding, reasonable to believe that the institution of such person engage resigned is about to act or official has or has been relieved practice deprive any which would other of his office and no as- successor has person any right privilege office, proceeding may or se- sumed such be (a) (b) against cured subsection instituted the State.”

977 (b) tory provision no discrimination II. statute, the application of a valid in the applicant May The State have fulfilled substan- would Sued Be legal require- applicable tively all voting. majority’s ments conclusion that Mis- may sissippi one. sued a curious be is can a doubt the Government Without appre- rights constitutional Beset hensions, similar adversary champion to be the majority it did deal- who victims of its citizens are the —as ing right discrimination, with the United States States state Raines, United narrowly 1971(c) to 1960, 27, sue—reads 17, § 80 S.Ct. declaration of unconstitutionali- 524, 533,8 may avert a ty. be 4 L.Ed.2d and it this, having out But done it comes the discrimination comes done when holding that, place at the same partiality rank administrative being Congress perfect idealism, Cir., a practices. Lynd, State United States constitutionally may impute as 818; to it F.2d F.2d its act and deed the actions of denied, 1964, own U.S. cert. 486, language representatives. official Thus is § for 11 L.Ed.2d 416. in the broad But (c) authorizing drummed out of the Act all the Government instance in are but that rare which there proper institute “a civil action or other personal no officers to proceeding relief, sue. preventive includ tempo * * * ing permanent plain this case is and for The statute ** * rary injunction, or or other things plainly it is constitutional. Two der,” no there is indication that Con by 1971(c). First, accomplished gress impose any meant to artificial re matter, that a substantive it declares strictions because of source of the constituting “any practice a de- act or voting discriminatory deprivation of privation” rights (a) com- of subsection voting Discriminatory rights. denial “any or sub- official mitted basis, rights, on a retail or wholesale shall deemed division thereof” “be discriminatory practice or whether from Second, provides State.” statutes, towas attacked. invalid be procedural remedy sub- enforce right. by prescrib- is at stake is of dis- What It does this stantive Negroes things: may parity ing (a) franchised of treat- be two the “[s]tate regis- Negro joined defendant”; (b) party if ment bare so 5% may approach equality person holding trants ca- with no office there is registrants 500,000 (67%). being pable white If— sued as defendant sought— may joined, and to resolve that if a “the trial is then which the state proceeding discrimination,9 disparity due to be instituted nothing compel (Emphasis supplied.) Thus there is statute State.” statutory pursue room, for, Government the tortuous need there pace snail’s on behalf of individual voters a state construction to determine when may joined counties. individual defendants. urged beyond power finding it is “It of discrimination end 9. A was the Congress Cir., Lynd, to authorize the United States v. result 1963, bring support denied, States action F.2d cert. private rights. constitutional But 11 L.Ed.2d highest public opinion 818; there is interest 301 F.2d earlier found, due observance of all guarantees, constitutional District Court and the Fifth including finding flagrant, afiirmed, bear the the those that Circuit directly private rights, on most and we United States v. rank discrimination 1964, perfectly competent Ramsey, Cir., think it 5 331 F.2d Con 824. gress to authorize the States United guardian 1971(c) public 10. § be the interest 42 U.S.C.A. is set out injunctive supra. 7, in a suit for 17, relief.” 362 note U.S. full at 27, 519, 526, at 80 S.Ct. at 4 L.Ed.2d 524. $78 that, assuming, Ram- inference was foreclose the as in Atkins .And remanding permit may the trial sey,11 sometimes case District Court the silently against against State, end the Court at the the state relief refuse n ofthe Dogan passed on in both trial, the issue. But throw- this no reason Lynd14 Circuit, empha- and sizing Fifth ing trial even out the state before af- '.begins. the wide nature relief against by forded 1971 voter discrimi- § general immunity from has A state recognized nation, remedy that the sovereign. by United the national (cid:127)suit against run such.15 And the state as 621, Texas, 1892, 642- 143 U.S. v. States United second State of Alabama v. 488, 285.12 And 646, L.Ed. 12 36 S.Ct. States, 583, aff’d, Cir., 1962, 5 304 F.2d Congress prescribe forum in can 1962, 145, 37, 9 371 U.S. 83 S.Ct. L.Ed.2d commenced suit to be which the highly significant. 112, After a trial 1971(c) (d). v. Case done in it has § following by on the remand the merits 438, 92, 97, 1946, Boles, 66 S.Ct. 327 U.S. Supreme 601, pursuant to Court § 552; Cali v. L.Ed. United States 90 discriminatory District found Court 175, 187, 1936, fornia, 56 297 S.Ct. U.S. voting reg- practices part on 567; 421, 1251 80 L.Ed. 28 U.S.C.A. § though istrars. Even there were succes- (2). (b) registrars parties suit,16 sor per that in brief curiam The fact District the against Court rendered decree majority, heavily stressed .so of Alabama. Addi- tionally, findings Supreme v. Ala- Court United States the basis of dis- 924, 602, bama, 1960, crimination, specifi- 80 S.Ct. 362 U.S. it declared that 54 affirmatively 982,13 cally regis- applicants 4 L.Ed.2d did not named were to be cry Supreme far 601 constitutional is a

'hold tered. holding § affirmed holding subject unconstitution- from either the State was expressed against .(cid:127)ality apprehension on or an orders it and form of relief n constitutionality. What, all, granted appropriate.17 Similarly, it did Cir., 1963, Atkins, proceedings v. 5 1. States 15. 1 United series instituted 733, 739; Attorney 1974(b) v. United States F.2d § 323 General under Ramsey, Cir., 1964, (d) records, F.2d 824. 5 331 to obtain voter con stitutionality repeatedly upheld been York United also: State of New v. 12. See specific attack. In re Dinkens 310, States, 1946, 572, 66 S.Ct. 326 U.S. Attorney General, Cir., 1961, v. 5 285 Arizona, 326; States v. 90 L.Ed. 430, approving adopting, F.2d Ala 666, 174, 1935, L. 79 295 U.S. 55 S.Ct. Rogers, ex bama rel. Gallion v. M.D. Michigan, 1371; United States v. Ed. 1903, Ala., 1960, F.Supp. 848; Kennedy 187 v. 742, 379, L. 47 190 U.S. 23 S.Ct. Bruce, Cir., 1962, 860; 5 298 F.2d Unit Ed. 1103. Lynd, Cir., 1962, ed v. States 5 301 F.2d 818; Cir., Kennedy, 1963, Coleman v. 5 disclaimer, the Fifth Circuit 13. Of 867, denied, 313 F.2d cert. Atkins, supra, follow the stated: “We 705; Kennedy 10 L.Ed.2d present case.” 323 same course Owen, Cir., 1963, 116; v. Kennedy 321 F.2d 733, 739, n. 7. F.2d Lewis, Cir., 1963, 325 F. earlier had stated: “It But the Court 2d 210. n should be recalled that Ala- the State party and is bama is a to this action Although successor administra- discriminatory responsible acts parties, were tors still were abso- practices registrars. This is (cid:127)and lutely indifferent noncommittal. provided expressly § for in 42 U.S.C.A. F.2d at 588. Rights 1971(c) Civil as amended up The District Court set elaborate 601(b).” 323 F.2d Act of consisting monthly policing machinery reports to both the Court and the United subject Cir., 1963, Attorney Dogan, States v. States which were 14. United Cir., voting 767; Lynd, Kennedy verification checks on the rec- 314 F.2d 1962, denied, by agents ords F.2d cert. United States. at F.2d L.Ed.2d at 584. Similar relief was prescribed the Fifth Circuit .500. Unit-

979 injunction against actions, State unauthorized, direct if holds that these Mississippi Cir- admitting was issued the Fifth constitute State action. But pending appeal cuit in United States v. that this is State action to allow redress Lynd, Cir., 1962, 818, against transgressing 301 F.2d individuals, 5 argument merits, thereby overcoming after on the 5 affirmed the bar of the Elev Cir., 1963, 321 F.2d 26.18 enth parte Amendment under the Ex Young doctrine, majority insists that majority’s conclusion of uncon it is not imputed State action so as to be stitutionality on what rests best be Congress, the State where unfettered described the Eleventh Amendment Amendment, expressly the Eleventh Underlying approach dialectic. provides for suit the national sovex* philosophic the literal extension of the eign against the State. political economy discussions of parte consequence Young, 1908, kind found in Ex Were this the 209 inevitable 441, they U.S. 28 fictions —useful as for solu- S.Ct. 52 L.Ed. 714.19 are (See V.) approach tions of Part some of law’s In this formal incon- regarded gruities, J., dissenting Douglas, idealism, cf. State is an exist ing Ellis, 1960, separate apart 574, 595, Parker v. 362 U.S. from human beings 909, good carry 80 4 functions, S.Ct. L.Ed.2d 963—a who deal out its judicial history wholly incapable anything wrong would Worse, Logically, erased. unlawful. it would close the court- when through power instrumentality house resolution of conflicts of its be- illegal, govern- end, tween the national and achieves unlawful it has all, ownership merely ments not been whether concern the State at individ acting tidelands, uals offshore United excess of the maximum States v. Texas, 1950, authority might 707, 918, grant 339 U.S. 70 S.Ct. have been 1221, 94 pushes L.Ed. propo This result ed. then interference with the Logically, orders nents into Federal Court.20 another fiction. course, there would be no constitutional ordinary This is case in which not the judicial federal redress such “il perhaps actions of Government officials legal” excesses since this would not be authority sought in excess of to be concept “State action” as the used imputed to the State to make the State the Fourteenth Amendment or in the im directly responsible therefor. Here the plementing Rights g., Civil Acts. E. 42 actions taken individuals to a relate 1983, 1971(a). Consequent governmental U.S.C.A. §§ function which is in nature wholly ly, pei'sonal Mississippi private, majority unrelated concedes and the parte Virginia, 1880, Ramsey, Cir., 1964, 19. See also: Ex ed 100 States v. 339, 676; Cooper Aaron, U.S. 1958, 25 L.Ed. F.2d v. 1, 1401, 358 U.S. 78 S.Ct. 3 L.Ed. by separate unpublished 18. The Court or- 5; Raines, 1960, 2d United States v. findings proceeding der and contempt in the 17, 524; U.S. L.Ed.2d Registrar Lynd held the Greenhow, 1885, Poindexter v. contempt civil for violations of the in- 5 S.Ct. 29 L.Ed. 185. junction pending appeal. Certiorari was Mississippi denied, Lynd Meredith, States, See U.S. 83 S.Ct. 9 L.Ed.2d L.Ed.2d 416. granting contempt required motion of the The civil United States for order also party respondent leave to be named registrar (a) immediately reg- denying judgments certiorari hold approximately Negro ap- ister 40 named ing the Governor and Lt. Governor of plicants; (b) specified use sections contempt the State of in civil Constitution for “un- proceedings instituted the United derstanding” test; (c) rejecting cease curiae-intervenor, States as amicus Mere applications person for errors if the met (United Mississip dith v. Fair States v. specified order; the standards pi), Cir., 1962, 532; 313 F.2d Mere (d) applicant inform the of the exact (United Mississip dith v. Fair States v. application. pi), Cir., 1962, errors and deficiencies in the 313 P.2d 534.

980 Everything every activity. attack For action relates State. under here— here understanding test, promulgation process. no cir Under the elective high any registration application official, form, could the cumstances the duty registration-elective assistance, pro- low, to fill it out in the without involved against concerning process regarded private person. hibition er- be as advice “ * * * good rors, test, its character the moral Each takes character the right challenge agency imposed strictly of citizen all a state from the duties —are statutes; by prescribed it duties do Constitu- private tion and be statutes. Acts not become matters law done thereunder ” * ** truly by State, they performed merely are acts

cause are Allwright, by persons. private person, actions Smith State individual v. 1944, 757, 649, 658, 663, 321 64 S.Ct. U.S. Substantively, at late can there 987; Terry Adams, 1952, L.Ed. 88 v. question of the constitutional date be no 1152; 809, 345 U.S. 73 L.Ed. S.Ct. 97 directly charge power for de the State Morgan, Cir., 1958, Baldwin 5 251 v. rights accomplished nial voter 780, 790; 1961, F.2d F.2d at 287 statutory or its administration. structure 754-755, 9; Birmingham n. Boman v. guaranteed right 1971(a) Under § Co., Cir., 5 Transit 280 F.2d “ * * of race to vote distinction without By express their structure usage, law, custom, any constitution, provision, statutes voter Territory, regulation State reflect that the action of all is that of the contrary authority, to the or under its State and the State alone.21 notwithstanding.” Discriminatory State found and laws were principles Constitutions which These are than ordi- more unconstitutional in themselves be narily applicable theory if basic pur Supreme Court been voided kept carefully suit is the Government’s to this subsection.22 Guinn suant charging Negro mind. Unlike those States, 1915, 355- deprived voters of constitutional are Myers 1340; 59 L.Ed. rights because of discrimination in Anderson, 1915, valid stat- administration of otherwise L.Ed. 1349. utes, the thesis is here that these voter experience voter discrimi- registration Constitution) The rich (and laws ample con- for the nation affords an because, basis invalid their set- themselves ting, con- reasonable clusion that there established structure congressional to, permit de- nection between in fact did was intended voting suits, Negro the acts termination that in effectual denial government being vote, which, representatives proof final of local eating, pudding’s disparate acts of to be the is the be deemed rights hand, on the one vs. On such a the- State results 67% 5%. impossible ory, conceptually the Fourteenth for stat- be under secured (and provisions) other. on the constitutional to Fifteenth utes Amendments anything congressional actions, scope power than under State, State, Amend- and for the Fourteenth and Fifteenth See, legis g., § e. “The Miss.Code 3210.5: were is clear decided. comity acting 1971(c) registrar, history § while within lative U.S.C.A. authority jurisdiction imposes his and under limits on substantive personally rights protected by act, scope § shall not be liable judgment.” (a). 1971(c) provides And an en error of see Section “ * * procedure implement *. § § also forcement Miss.Code 3230: adjudged (a) not, any case, shall available (now virtue of Costs similar regis- § § the commissioners or the Bev.Stat. U.S.C.A. 1983) trar.” to enforce 2004. H.R. § Bev.Stat. Rep.No.291, Cong., 1st 85th Sess. Congressional designated (1957) 1971(a) 22. 42 § U.S.Code and Ad U.S.C.A. Myers p. Rev.Stat. Guinn and ministrative News when 981 enough is ments adoption surely broad the and to withstand motion to dis- * * * legislation ; sufficiency remedial miss the of a counteracting “necessary proper and so stated claim is not tested the may adopt such laws as applied the or en states strict standards once to de- force, which, they and amendment, the termine whether a ‘cause of action’ prohibited making sufficiently are from enforc was stated.” 1A Barron ing, proceeding Holtzoff, or such acts and & Federal Practice and take, 356, states commit (Wright and which Procedure at 360 ed. 1960). prohibited amendment committing taking.” from Civil press a technical But I this as do Rights Cases, 1883,109 3, 14, U.S. 3 S.Ct. charges complaint principle because the 18, 27 L.Ed. 835. discriminatory purpose effect and simple positive, terms. most direct III. reciting factual, example, For sta- after tistical historical in the first details Majority Applies Incorrect Stand- charges paragraphs, “one 15 ards for Dismissal adopted newly purposes” the chief professing stand- follow the "While to * * “* 1890, Constitution of was Gibson, Conley epitomized v. ards Negro and to to restrict franchise 99, 41, L.Ed.2d 1957, 2 355 78 S.Ct. U.S. perpetuate political establish and white pro- 80,23 majority a basic commits supremacy segregation in Mis- and racial subjects Govern- cedural error. sissippi.” accomplished, This was longer ap- complaint to tests ment’s propriate through complaint charges, the under- Rules Federal under the goes complaint standing clause. Procedure. Civil allege later, to under stimulus majority preoccupied two with of a decision Fifth Circuit25 which contrasting things, Its the other. each 244, construed Article the “read un- allegations approach emphasizes disjunctively provision, derstand” distinguished facts, from must be legal decision, 1954 school amendment to vital conclusions. This becomes requiring adopted ability read was to technically it is said thesis since was understand. The effect of this only well facts to dismiss admits motion unregistered subject body the vast 8(a) (2) does pleaded.24 But F.R.Civ.P. Negroes 475,000) (numbering adult over pleaded, require that facts be stringent * * requirements to new and complaint contain “shall that the (num- which the mass of white voters plain (2) statement of a short bering 500,000) subjected. had not been showing pleader is entitled that the claim * * Wright alleged, amendment, Professor This it is was “de- relief points signed out that perpetuate in white segregated general supremacy, racially political relief stated “Claim for legal may be society,

terms conclusions disenfranchisement adversary sufficient to inform Negroes.” Majority Opinion, note 1 and ac- 23. See 968, 486, 416; S. 11 L.Ed.2d 84 S.Ct. companying text. Lynd, 1962, Cir., United States 5 301 822, denied, F.2d cert. U.S. unani the Court 24. In the instant case mously all all motions of de L.Ed.2d overruled compel sought fendants Peay Cox, Cir., 1951, 190 F.2d allegations plead of dis Government heavily case This stressed specificity under crimination factual V, XIII, majority. See n. n. Parts theory 9(b) F.R.Civ.P. on the asserted aspect requiring 59. The of the case equivalent charges were these voter to exhaust administrative remedies ruling clearly correct. fraud. This legislatively Cir., Lynd, has been overruled. U.S. United States v. denied, 1964, 1971(d). U. F.2d cert. C.A. § legislation Similarly, claim” the motivation of and this “fourth scrutiny. subject judicial complaint 1960- detail recites free through very tiny If —and if is a one—that of the Government 1962 efforts Lightfoot, law, proceedings obtain were Gomillion v. ever the Federal Mississippi, L.Ed. registration records voter enjoin 110, proceedings uncon dis 2d it clear that to now makes other gets chiefly no criminatory practices, in Forrest stitutional racial discrimination 26 County judicial immunity simply cloak of be legislation. cause the used means alleging developments factually After legis supposed The “motivation” of the goes complaint proceedings, the the court no insula lators no and affords haven pro specific on to overcome to state that inquiry. judicial from tion injunctive Fifth Circuit’s visions assuming that, requiring especially assist to be those The second seems order — ance equality legally significant, Negro applicants to are to on an them there be Legislature evidentiary possible ways no of establish with whites —the charges. major ing package These the truth of enacted a laws.27 alleged ity reasoning num to run for in this unconstitutional facet seems to be by pretrial specific include reasons. These this The Government ber of course. interrogatories unreasonable, arbitrary disqualifica was from the defendants technical, inconsequential required formal, basis to the exact factual tion errors, “freezing charges, to be in” while for these the witnesses white voters Negroes by unregistered support thereof, “freezing on etc. used trial out” stringent requiring responses more The Government filed detailed standards publication presumably put applicants, its foot forward. of the names of best Negroes subjecting Consideration of these thus to harassment28 materials by whites, that “facts” cannot reveals these etc. all of is either be since established charges Of cannot these serious course hearsay In inadmissible.29 otherwise “legal be off as brushed conclusions.” concluding majority words, majority takes a tack cir- double inter that no forth looks to claim is set cumvent them. The first be seems rogatories can that no claim charges e., to establish that truth of these —i. 30 discriminatory purpose proved. a motion to dismiss But on effect—is legal consequence goes (6), since this 12(b) under F.R.Civ.P. many 516, Rock, 1959, was on fronts. This battle v. U.S. Bates Little 361 Kennedy Lynd, Cir., 1962, 480; F.2d 412, 5 306 Gibson 4 L.Ed.2d 80 S.Ct. 222, denied, 952, Investigation Legislative S.Ct. cert. 371 83 U.S. Com Florida 507, 500, 889, mittee, 1962, 539, L.Ed.2d Government 9 372 U.S. 83 S.Ct. sought, Fifth and after reversal 9 L.Ed.2d 929. Circuit, right rec obtained voter 1974(b). ords A § under few months majority passes fash- it off in this 29. The Cir., Lynd, earlier in United States v. ion: 1962, F.2d the Fifth Circuit interroga- “[We find] further injunction issued its own which was af sworn [have] been answered and tories hearing merits, 5 firmed after on the attorneys plaintiff for the various Cir., denied, 321 F.2d cert. in- the results of their and set vestigations forth 486, 11 L. legal up of [are] made Simultaneously Ed.2d 416. Fifth hearsay from evi- or factual conclusions Lynd in Circuit order found civil con dence or otherwise inadmissible [are] tempt. 18, supra. note See Majority Opinion, Introduc- evidence.” Bill These were described as House n. 1. 900, amending 3213; § H.B. amend- ing 3232; amending 3209.6; § H.B. § summary judgment 30. No motion 904; H.B. H.B. 903. granted filed so these materials do Alabama, 1958, pertinent 28. Cf. N.A.A.C.P. v. not become F.R.Civ.P. under 1488; 12(c) 56(a). 2 L.Ed.2d .a carded -which would -no n facts” of which the movant lative (cid:127)the ison the best "“[F]inal failure to state to understand. (cid:127)expressed, n terms. (cid:127)claim Cir. tainty proper 440; the .stage. Quite nothing principle Kohler v. which could be Arthur H. to no phrased Company, 1962, for failure is made to at least an tuous this ly from remotely beyond ing complaint This so often overlooked overcome. done. set granted 31 interrogatories basis of plaintiff simple problem, (1952), 2A 302 the notion thing. that that motivation, dismissed claim a relief of facts in is far from standard is entitling * * doubt that the proof Barron & in the reveals it and disposition is a series Jacobs, Cir., 1943, Mullins v. De Soto Securities F.2d Richland Co. v. Gomillion so often “the arguable standard appear bare unless should not be * * 200 on trial. This entitle Cir., 1943, the Fifth ^[3] under How a standard so ’* plaintiff state proved a claim 324, F.2d how the defendants accepted bones majority opinion him to relief. rephrased * * * “can * Des complaint Holtzoff saying, applied, these become repeated, A now support of his claim are irrelevant it “beyond 325. Of course him to a claim immunity of a civil basis contrary, once the 614, of of motion to dismiss plaintiff can appears * (Mississippi) had pleading is a tor- Isles v. Lightfoot, supra, unless would be entitled * prove Circuit has Government thoroughly negatives, Conley Harper, 136 F.2d support rule” 615 * however, dismissed * * unless” brings relief.” Of is it doubt” ^[1] should not it We have apparent- establish- to a cer- action Evans, 5 * * in these of of facts is “that appears v. Gib- “should is hard at this at simply set 5 Apart of prove legis ^[2] us to said, F.2d even each Cir., 391. detail historic ear- dis 55; his ”* on of it provide has worked- so tories establish firsthand in plaint will be ried this burden. But I trier can motion and how—faithful this las concepts stitutional cannot at this eral gro v. Harmer’s Heirs’ ent which struck F.Supp. proof ing against U.S. ance in Davis v. Monarch Ins. Co. of Ohio v. Abundant This material both 1961, 368 U.S. 521; from its 933, and Cir., Helena Parish School F.Supp. of stantial basis Story, ^[554] A the material startling County Supreme would explain” approach material. 69 S.Ct. consideration of a 1960, 933, Co., Cir., 1961, Davis v. 197 of 348, J.). under F.R.Civ.P. plainly the mechanism which the Ne 872, 1949, 872, aff’d infer 515, F.Supp. setting 69 S.Ct. 5 Prima Likely Evidence to Establish provisions 351 281 Schnell, burden be denied the v. Commercial Union Assur the restricted disparity. Court, analyzing 749, test of Schnell, S.D.Ala., stage setting. down an well admissible under materials 82 (7 Pet.) L.Ed. 781 Indeed, all, F.2d will illustrate the the Government’s F.R.Civ.P. admissibility of all of 93 had Facie and offers IV. 649, mem., since these aff’d S.D.Ala., to its Lessee, 749, these acquires make L.Ed. 401; came into achieve aff’d Testing 8 Board, 12(b), need This is vital mem., 1949, very 529, “understanding 286 Case legislative-con 1949, from 32 conception a blanket 1093; vantage 1883, great 43(a). L.Ed. mem., 1962, 3-Judge (81 Hall say. small F.2d 7 nearly all, interroga additional Spach, 5 336 meaning being E.D.La., 1949, L.Ed.2d the lib holding 32 U.S. rest factual Morris claim. 1093) v. St. pres “The com 388; vote U.S. Dal part sub (per —it rul 81 102, 1957, 46, 99, Preliminary 31. 78 S.Ct. its the United States Feasibility Study Advisability L.Ed.2d 80. and Developing Rules of Evidence Uniform effectually approach been Tliis Courts, Federal 30 F.R.D. for the adopted by Special on Committee (1962). Evidence of the Conference Judicial Circuit has described provision what Fifth legislative setting is inflexible,, “steelhard, reg- as the great vested discretion segrega undeviating policy of literacy require- official istrar made clear Jackson, City of merely racial tion.” United States v. to make a device ment was Cir., Mississippi, F.2d easy.” North- Lassiter discrimination many policy “is- Elections, It takes forms. County ampton Bd. in cus laws.33 It is rooted 45, 53, L.Ed.2d stated setting part tom.” of that course 1072. Of program parcel frequent, is the policy Part formal finds 33. The Sovereignty Commission, Emphatic Miss. legislative expression. State Interposition, [Laws §§ Senate Con- Code 9028-31-48 Resolution adopted by 1956] which the Governor No. Resolution current duty charged with the Legislature oí Missis- Chairman. of the State “ * * * perform any February sippi See also to do and commanding things necessary all acts proper deemed § 4065.3 Miss.Code protect sovereignty employees and its State that all * * * en- and each “be subdivision capacity them, here- Gov- croachment thereon the Federal official in their any branch, department give required” force and ef- ernment or agency “full * * performance official their thereof *.” Miss.Code fect 1942, specifi- Segregation political § of Resolution 9028-35. is duties and * * * cally Interposition for: are further ordained Public schools: Miss. and prohibit, any Const., 207; 1956, 8, by required art. § Miss.Code and directed 1942, (integration means, lawful, of peaceful 6220.5 a crim- §§ and constitutional offense), 6766, 6475-14, 6336-05, compli- implementation inal of or 6336-06(a). transportation Integration Public of and' Decisions ance with 1942, 2351.5,. Supreme terminals: §§ Court of Miss.Code of the United States ** * 2351.7, 3499, 7784, 7785, 7786, May 7786-01,. May 17, 1954, * * * County jails, any lawful, municipal prohibit by and 7787.5. and prisons: 225; means, peaceful and state Miss.Const. § constitutional and * * * integration 3374.5, 4259, 7913, mixing Miss.Code of or of the §§ schools, charity public hospitals: Negro 7971. and Insane races in white and public parks, public rooms, waiting public 6881-83, 6927,. of Miss.Code 6973—74. §§ n Further, amusement, places or as- it is a of recreation crime con- spire segregation sembly State, any by of overthrow the in this branch laws of State, government, any person em- Miss.Code of the federal ployed any by government, the federal admission to the Meredith’s Universi ty agency Mississippi produced or of fed- of like- commission board flood of * * * pro- government and to H.B. First eral enactments. Extraordi Rel.L.Rep. by any lawful, peaceful nary Session, 1962, hibit, and con- Race means, implementation (1962), provides “every of stitutional word * * * any orders, regulations any every spoken or rules of and official act * * * board, agency or of commission the fed- done or heretofore hereafter government, supposed by any officer, agent employee eral based on the or of the authority Integration said Decisions Mississippi anywise State connect * * * * prohibitions *. *. The keeping ed with or incident to the Insti of this Act are mandates direct- Higher Learning pub tutions of and the ed to the aforesaid executive branch colleges lic schools state * * * all individuals thereof * * * racially hereby segregated capacity only. Compliance their official declared and established as the prohibitions with said mandates sovereign sovereign or act acts of the * * * this act shall and is a full * * * Mississippi State complete defense to suit whatso- * * * person act of individual such equity, in law or ever or of a or civil given and shall be force full and effect criminal nature which hereafter be as the substantive law of this as state brought against the aforesaid executive * * * sovereign the official act * * * * * * employees officers or private state and not or individual * * * by any person, State * * * persons act of such Mississippi by House Concurrent Resolution No. government States, federal the United Extraordinary Session, 1962, First any commission, agency, subdivision employee Page 34. See 34 on thereof.” Note Negroes’ presence that a in the reveal The State historical materials The posed Constituting problem. open, frank, policy did not a real 53.- so so candid so problem. population .accidentally pass of the' the Ne- the voter 7% groes plain Amendment, represented The Fifteenth 57.6% way throughout posed But a prohibition, Whites were control difficulties. complete State, segregation but not without some difficulties found to make was accomplished delegates which one described This was to be and total. “preserving ascendency steps.35 through the white a number people revolutionary con- methods” Discriminatory Purpose “stuffing of 1890 sisting, plain * “in words” of ** carrying Constitution the elec- ballot-boxes tions fraud and violence until Leg- February 5, 1890, On machinery about whole was elections con- for a constitutional called islature Anticipating to rot down.” the Conven- the Constitution revise vention tion, George its work. Senator outlined Although than more 1869.36 50% duty”, reported first to have “Our he negro, population said, measures, “is to con- devise delegates elected (cid:127)one n Convention sistent with Constitution of the Unit- Negro. Conven- was a States, ed as will us to maintain enable August 12, opened on government, a home under the control adopted Constitution. a new November people of the white of the state.” Constitution, all males Under the registered age years, opening From over the note of the Conven- months vote, tion, single six Pres- resident the theme was the one. idiocy, insanity, disqualified Convention, Calhoon, (cid:127)and not de- ident n eligi- supremacy were of certain crimes for racial conviction scribed the race changes significant problems you have to en- ble.37 “one challenge for two residence 1890 Constitution were and was so counter” their * * * including arrange years, payment system the as of taxes “this ballot tax, requirement poll that object.” and a annual He was soon to effect one applicant temper or under- spell to read of Con- be able the the that out. The Constitu- of the State stand section was the Resolution vention reflected Committee. It first re- tion.38 of the Preamble (1962), Rel.L.Rep. paragraphs recites of its in 16 and 17 Race claims complaint purpose developments of on the admission of the chief the that the of fed- Ne- and the use to restrict the H. Meredith James 1890 Convention gro petitions perpetuate troops, Govern- white the and franchise and to eral supremacy. a redress filed de- the United States The Government ment of including grievances tailed, removal of “Pur- answers titled of voluminous University. incorporate Laws”, pose I from the all of which Meredith stage pro- of the At reference. judicial of this notice 34. The Court took ceeding, function the Court’s it is not Fair, Cir., 1962, 298 F. in Meredith mine) (nor otherwise deter- to credit or 2d 696. recognize other than to mine its truth plausibly 35. These were: available as evidence it is understanding (1) may test An F.R.Civ.P. 26 or lead to evidence. districting (2) of white versus (b). Careful black counties VII, Mississippi Art. Constitution system preserve (3) An electoral judicial § 2. control on executive and white elections Constitution 1890 art. (4) pure democratic of the white Use 241, 243, 244 re- 244. Miss.Const. §§ primary and among things, quires, voter membership. (5) party Restriction of the shall “be able to read section state; he be I Constitution of this shall discussion of this subdivision response when read in able to understand the same on materials furnished draw interpreta- give interrogatories requesting specific him, a reasonable tion thereof.” based the facts on which the Government object mount is to this Convention “Whereas” clauses cited in number it in the white in two transfer it to and invest the existence Apart repeal races, prejudices of the Fif- and race.” from distinctive their unchanging accom- instincts, of ra- teenth plished” “this could be nature Amendment being “by ways, several one race that “one cial differences so * * * qualification.”' charge an educational [of] and control other must have governments states,” “That is we are which Others what echoed. of such today supremacy instability in much here to secure the “and as would lead poetic only capable over- the white With people race.” are white tones, govern- remarked, maintaining” conducting “We embarked one and * * * supremacy, being ship “negro of white ment, same race freighted hopes.” great responsibil- it our And unequal with all wholly to such ** jt crystal clear it President Calhoon made then resolved ity generalized open- eloquence judgment his Con- more was the deliberate ing Negroes, Of he re- efficient address. vention that true “the ported great important to have “We want them remedy diffi- said: for the here, good repeal own their own and our but “lies culties” described means demands that we shall devise some Constitution Amendment XV (cid:127)x- -x- * practically ex- which shall be “such restrictions so ^at government negro may put cluded from control.” suf- limitations States, frage, the several contemporary views of the dele- These necessary proper for maintenance gates long look of are borne out * good governments and stable history. two been at least There delegate referring large surviving delegates of to the reunions One * * “70,000 Negro Convention, population one adult the Constitutional proceed- it the white vote” declared 1927. These excess another Negro ings duty prevent clearly purpose of be their reveal overthrowing present majority “primary purpose from Convention. The ** * government, adopt provision a solu- and then offered civil was to some good “How in this exclusive method: secure to the would Only, accomplished? government, to be end stable freed my adjustment negro judgment, by Republican rule. incubus * * * suffrage the basis of as will secure All desired understood permanent ma- which and should be evolved white race fixed some scheme * * * jority. effectively sphere people want would from the The white remove they protected politics ignorant of in and and know that are the the feel State * * * * * * * * possibility unpatriotic Negro. the *.”40 the ** They Negro meeting, of rule *. demand called the renunion was “ * * * * * * nothing this at our hands and that order the statement satisfy yeai's ago, day, thirty-seven on short of this will them ex- that the remedy is in our hands. 1890 en- cuse us. The Constitutional of Convention safe, organic gave if we will afford a certain which Missis- We can acted an law supremacy Anglo-Saxon government, permanent sippians in our white delegate recognizing Discussing adjourned.” state.” the achieve- Another government Convention, powers po- that of Chairman “the ments of this the litically lodged surviving delegates modestly constitutionally in of de- the easy Negro para- the race” declared that “the “It was no task the clared: Proceedings of of the Con- of Journal the Constitutional Convention (1910). of State of stitutional Convention the (Jackson, Mississippi: E. L. Proceedings Reunion of of the The 1890) Martin, 303-04. Surviving of the Constitutional Members Proceedings (1927). Mayre Dabney, of the The Convention Surviving of the Reunion of Members * * * delegate reciting con- One in a state detail to enact convention besetting eliminating problems practically from the the State described stitution legislative eight-tenths four-step ap- structure at least electors the State portionment (districting people, of the white citizens favor of its colored counties), plan States, the electoral for the Exec- the fifteenth United the face ** Judiciary, limiting Negro “fifteenth utive frage by suf- The amendment ** * poll tax, annual not violated” and the amendment was clause, Rather, adoption understanding it was this Constitution. suffrage by Anglo-Saxon “only in- lie concludedthat these “several circumvented * * * requirements genuity.” “as combined” have Of “the effort Negro intended, Negro practically ma- race” were reduced disfranchise the Amendment, jorities negligible quan- political to a of the Fifteenth in the face tity.” problem full He then the “three weeks” characterized the another described of “debating and its solution in “Concisely these doleful terms. this momentous issue” “ * ** correctly up, of mill out summed the result ground in our the two ills lesser. was franchise article chose the malady exchanged organic constitution, pro- present will She ever irresponsible for a functional Conven- from an class.” disorder. The tect us up- depended tion substituted a desiccated for a dis- Convinced “civilization ensuing supremacy in eased electorate. The ills of the white race present knowing Mississippi,” within full state are the check but well and correction citizens.” man to white “the colored vote” “race, could not be defeated because Understanding Test condition,” color, previous the work understanding early pro- was test was as one the Convention described posed. Despite advan- considerable which pedients whole circle ex- “we belted the tage legislating against would work favor his habits infringing weaknesses, and, white illiter- whites because the lower without acy Negro 76%), (white 11%; provisions rate of the Constitution — — some, it, expressed opposing provided perpetual “fear States, we trickery and fraud.” supremacy it will lead to [that] white Missis- * * Adopting “placed sippi hands test *.” apply the officer who is to the test Judge delegates, Thompson, one power disfranchise.” to defraud and remarking “scarcely after that there early days Recognizing in what those having a conceivable scheme the least Negro applicants in Cen- the Twentieth tendency Negro to eliminate the vote tury experience44 the test was were duly was not language considered the conven- that it didn’t criticized blunt regrettable declared, straight-forward honest, tion” then “It or man- “look * * * suggestions Rather, ly.” that all a farce were “looks like recorded; preserved, registration not had been decide wheth- make officer rightly interprets the would record be monument to a clause the er a voter Disclaiming resourcefulness the human mind.” re- Constitution.”45 the Thompson, Society, Mississippi Mississippi: 42. R. H. Constitu- Printed for the 1902) tion of 1890 —An Address Delivered 129-140. Mississippi Bar the State Association 9, 18, For- 44. 26 as to See notes (Biloxi, Mississippi: 1923) 16-17. case; Lynd contempt County and the rest United States v. also notes 9 MeNeilly, “History 43. the Meas- J. S. Ramsey, Cir., F.2d 824. on ures Submitted to the Committee understanding Franchise, Apportionment, that the Elective “Persuaded fraud,” re- in on Louisiana Elections the Constitutional Conven- clause was based jected 1890,” example. tion of Mis- See Publications the Louisiana, sissippi Society. (Oxford, D.C. Historical United States State vague sponsibility “anything in The Man’s so White Democi’atic Primary application in its ef- and uncertain its county delegate from a black fect” one reported proposition they are, as Few difficult it is simple acquiesced on the he had Negro registered, them to become voters a loaf better that “half effectually in elective excluded the was substantial than no There bread.” through process the means the demo- expressed public approval for the view primary.48 cratic The the heavy hand of delegates people that sent the “the one in been this too. su- white to secure the Convention artifice, premacy, not a trick statutory not Beginning the in 1902 with subterfuge, by fraud, stratagem, but primaries,49 execu- various the advent by brave, open, and honorable honest Par- Decocratic tive ty, committees methods,” declaring this under- categorically county, al- state and standing a fraud “section partici- lowed white democrats serpent was on it trail face all,” Typical the- pate. actions was these mephitic va- that “the he concluded in Committee resolution of the State ** por section which arises from the qual- “Resolved, in addition stuffing X'egistra- one like makes feel prescribed by law for voters ifications tion books.” primaries, therein shall said all voters In 1915 the State- white democrats.” distinguished Mississippi’s le- One of implication Committee, rejecting gal Supx’eme of its scholars and Justice “unjustly resolutions that reflect other Ethridge,46 Court, George H. does in this the white democratic elections Of flinch at word “discriminate.” “ * * * state,” declared that remarked, “It is said he just an honest election concluded [was] it discriminate this section while does against patriotic expression choice race, any person it discrimi- Mississippi.” democrats of white as to character and nature.” nates their elaborating dialectic, he then Not forecasting Perhaps like indifference recognized one of the meth- that “this is years later, school decisions ten Negro.” disfranchising aAs ods of Supreme decision Coux't lawyer Mississippi judge, holding primaries” un- to be “white judges see a were to he saw fedex-al change re- constitutional caused century quax'ter later of a big sult, only in “ methods. The first test * * * understanding test of § July Pri- 1946 Democratic came large- person who cannot read would be mary * election United States Senator ly registrar mercy *. at resulting in renomination of Senator registrar pick out section could practices were Theodore Bilbo. he desired and read to him and call investigation subject special explain eom- on him to it.” 46; 353, 371, La., F.Supp. factual detail n. Government tbe many these, materials, support paragraph 21 of com- also or similar plaint Judge 1952 white in notes from 1899 to are discussed 45, 46, Wisdom political promoted by, supremacy was and 88. being among things, Negroes ex- George Ethridge, Mississippi Constitu- Primary from the Democratic cluded 424r-29, 435, 439, (Jackson, Mis- as outlined elections. I treat 1928). sissippi; Printing Tucker House 36, supra. note §§ 47. He also with frankness discussed 1902, 49. Miss.Sess.Laws ch. 66. (timing registration) (ap- and portionment) (reapportionment). and 256 649, Allwright, 1944, 50. Smith v. 321 U.S. 987; Terry Ad 48. These are the answer 64 S.Ct. L.Ed. materials also ams, “Purpose in re- volume Laws” entitled interrogatories requiring sponse 1152. L.Ed. qualifications to his member and of the One accord mittee Senate.51 with principles party.56 party Com of the Democratic Executive the State The organization Begin- acknowledging mittee, that “back was not slow act. after ning days, actions, in 1948 Democratic successive it has in the old State * * * adopted Negroes specified principles that executive committee could * * * principles not to.57 And subscribe that white Democrats these meeting imprimatur soon part” in 1946 held had the take and the of the Mississippi.58 question posed the Su resolve decision, preme that while testified date, place by name, The answers show legal right thought Negro all “had county system Ne “ that worked. * * * it vote” nevertheless groes trying primaries to vote in were opinion although was the unanimous — challenged. successfully This continues nothing spread on in it— was this about up primaries to the most recent of 1962. Negro] didn’t want [the though Typical, spectacular, in was the * vote, therefore, vote he wouldn’t August primary cident on, conclusion, he that “we went all-Negro run-off in Mound town of say thought thing do was to the best County. Bayou, Mississippi, Bolivar nothing agitate the matter one Accompanying the ballot boxes was way or matters their another and let take challenge signed by written each pur course, and so course was challenging candidates voters all sued.” Negroes only) precinct (known to be nothing” plan as such were not in with This “do seemed voters accord principles the declared of the Democratic material work.53 The Government’s Party.59 Although regis there were specific places Ne- shows and names of Negro voters, tered none allowed to were groes attempting primary to vote frequently vote. Another used device away.54 who were turned separate poll was the maintenance of two “do-nothing policy” But did being county registrars, books one long prevail. Mississippi In 1947 the general poll election book which in Legislature require laws to Negro enacted qualified cluded the names of primary, partici- to vote in a other, order primary poll voters. The book pants prin- must be accord pursuant respective to instructions from Any ciples particular party.55 of the Committees, Democratic Executive ex challenged person may polls Negro registrants. at the cluded Hearings Special 51. Before The Senate 56. Miss.Code of 1942 § 3129. Investigate Campaign Ex- Committee penditures, Cong., 79th 2nd Sess. 57. Resolutions Democratic Hearings]. Party 1948, 1952, cited [hereinafter 1960. Hearings 52. 371-72. setting See 1952 Resolution out Senator, endorsing adopted by re- principles as a candidate nomination, Committee, on the eve of the election Democratic State Executive “Mississippi’s described it as sen- white Miss.Sess.Laws Ch. 464. primary urged legislatively approved, principles, atorial election” These “every among things: man wo- white Democratic declared “We be- participate Hearings segregation man” to in it. lieve the races unalterably opposed repeal Negro

54. A number of voters segregation modification of the laws of testified of their unsuccessful efforts to state, prac- and we do not favor the register vote, pp. or both. See 140- nonsegregation.” tice of 141, 120-121, 281-282, 225-226, 250-263, 283-284, 317-320, 124-125, 213-215 copy Resolution, H.C.R.No.57, 59. A Hearings. (see Ch. supra) Miss .Acts of 1952 note 55. Miss.Sess.Laws Ex. ch. 17. was attached.

990 Equal Negro Separate But Not Educa- franchise because of inferior Negroes education, tion education. It is for the inferior segregated characteristic, not its such, Segregation schools, as of important. Any quality appraisal of the directly appear in be involved must, course, of education reckon with registration. Certainly voter voter segregation.60 open, policy frank registration ve case cannot made bring change in state hicle about Negro Although age children school practice. But in massive custom always exceeded number of registration here, it is assault on voter children,61 general white level a direct element the Government’s Negro training teacher that for below charge thesis. The is that under Likewise, spent, whites.62 amount

standing test, first in Miss. conceived including salaries, teachers’ is far less 244 Const. as later amended Negroes despite spectacular for recent understand, 1954 to read and include was, is, ready increases.63 mechanism to dis- Negro Year White discussed in subdivi- matters sion come from the volume answers 379,678 493,987 1929 interrogatories “Comparison entitled 492,349 393,804 1949 Negroes Education for Per- White 329,215 337,871 1890-1963,” comprising pages sons response request example, to a for the factual de- out of For 1929-1930 support para- 3,900 corps approximately tail graph of the contention in teacher complaint public Negroes, 3,263 3,100 31 of the teachers white Negroes college graduates educational facilities were were whereas whites provided high 2,719 Negroes inferior to those were even school persons. white I graduates. By treat these as in notes 1954 there was consider- 48, supra. improvement, 36 and able but white teachers degrees college their out-numbered School Census Negro counterparts to one. three Negro Year White per child 63. The instructional cost aver- 207,652 292,581 410,089 age graphically 301,548 different: attendance 1939- 1949- 1956- 1960- 1900- 1929- $40.42 $78.70 $128.50 $173.42 $8.20 $31.23 White Negro 78.70 7.45 6.69 23.83 117.10 2.67 District, comparisons $45, following Senatobia Tate Coun- are selected lot ty expenditures averaging (Negroes) : follows mini- above per program mum on a child ba- listed Negro sis: White Pupil Cost Per Per Pu Negro District White pil Cost $ 2.24 $ Amite Co. 70.46 County average $ $161.00 87.00 Co. 59.42 15.63 Benton Separate district 142.64 19.SS Claiborne Co. average 181.00 106.00 139.33 12.74 Co. Coahoma 80.24 10.41 Hinds Co. figures may deceptive. Even these 175.38 Leflore Co. 9.52 Study Report the Educa- In the 171.24 4.35 Madison Co. Negroes County, Sunflower 245.55 Yazoo Co. 2.92 (Bureau of Educational Re- University Dui’ing every Education, search, school district 1954-1955 School 1950), spent Negroes. Mississippi: it was more than March for whites high $600, out, 134r-35, pointed Dis- at “Sunflower Coun- ran from a Glenwood $73,626 per capi- County (whites) ty trict, to a Tallahatchie 1939-40 received

991 legislation- recently, Only im- under He then facilities. recommended decisions, equalization petus pay school for of the 1954 of teacher re- “and moving parity near there been discrimination as between- Recognizing uncon- consolidated versus number of races.” that what exist- schools).64 (one separate urged' equal, solidated and two-teacher was not ed he high program providing in same is true enrollment “that a be enacted for schools, consequence equal recog- in a matter much facilities between the races designed interpretation nizing elicit test that children of both are- races understanding equal opportunities,” a constitutional in, entitled to provision citizenship.65 segregated course, duties of facilities.67 The same- views were echoed Governor White- is not a mere of statistics. This matter years two later. “It is true is- there responsible officials of oppor- wide variation in educational recognized publicly disparity have 68 tunities between the races.” necessity educational facilities and the improvement.66 for substantial reports Gov- And various official biennial Wright urged Superintendent ernor in 1950 action. “We the State of Public Edu- face,” joint portrayed great he told the cation session dis- Legislature, problem parity graphic “a serious in the terms. wide Over a space providing comparable years, matter of pinpoint educa- the causes. * * opportunities example, many tional For for the two races “in counties Negro problem our State.” He identified the children are to attend forced phases salary the three of teacher school ad- in mere shacks church building transportation, justments, 1930-1931, houses.” As of per- “98.3 per expended ta fund. Since 79 cent of the eduea- this amount was elsewhere— Negroes, $58,165 probably bles at time were on the schools for the whites. years was the amount received the basis of In the last two the difference Negro However, only $35,- children. the amount received and the amount [not spent spent Negro 564 was for ‘instruction’ for the children] is more than Negro $22,601 Evidently $22,601 figure.” children. twice the Negro 64. Between 1910 and 1930 schools were not consolidated. As of 1930- make-up of the schools was as follows: Number Consolidated Schools Nu Number Number mber Unconsoli One-teacher Two-teacher dated Schools Schools Schools White Negro 7S9

65. In 798). whites. for whites ture rollment rollment enrollment of improvement (white 77,694; Negroes 48,- one schools, (474 generations, 1930-1931 out of 752 Fortunately —285 ratio was still 26,667 (49,742). By 5,012 46 were schools) compared 1961-62 shows much about Negro with nearly present l/10th Negro secondary with an three to of that 61,323 en- en- fu- 68. In 1953 ate Journal 970. I killed the Wright Legislature, January 3, 1950. $ a bill Message by ^[*] Holly Springs, providing money Extraordinary bill when Joint Governor “Did Session for a I killed the school I sign Session Sen- Negro Fielding it? school No. L. always 66. It was Keport so. Governor Var- 69. Biennial and Recommendations recalling proposal daman Superintendent his for a con- of the State of Public stitutional Legislature amendment to “control Education to the of Missis- public sippi distribution of a school fund so as the Scholastic Years 1929-30 stop expenditure 1930-31, the useless [hereinafter cited Bien- reported saying black Report]. counties” is nial 992 high in for rized all children school for of schools facilities Ne- cent 76 groes.” grades eight period, in one to As of that same race were colored grades prescribed percent per in nine state board month $28 inclusive and 1.7 great majority ($170 per year) for a Negro of colored six-month The term for to twelve. beyond was, got course, the sixth teachers. It “ob- never children 70 salary grade.” spend problem vious that the fact is “that we one The * * * money Mississippi per problems our child in real in in Missis- less sippi.” Negro physical Even than in race the schools for facilities represented late as 1945 “one most race.” for the white schools pressing Negroes Mississippi” quality needs in suffered to meet for Teacher object simple colleges. but adequate then As con unattained from lack of elaborate, need not sequence done in “sehoolhouses quality “the of work negro sanitary, but com by majority should at least be school room high adequate.” report fortable and very The when teachers would not rank noting progress, 1955-57, any acceptable minimum considerable measured recognizing public but Negroes schools for “that to the leaders in educational known poor past” Negro teaching in

thought.” have been force “get specific made average pupils recommendation for “an of 50 had enrolled ting respon average deceptive all communities to meet the each”, but sibility truly equalizing grades for facilities” since “teachers in the lower fre Negro charge and whites.79 recommended quently in from seven their graduate training also ty-five fifty increase pupils. to one hundred and * * Negro teachers, supervi 3,700 administrative 1933-35, *.”73 In out Negro elementary sion since Negro schools houses, school two-thirds fully “many elementary teachers are publicly For other third were owned. qualified,” supervision of class local (1,440), schools “conducted were teaching pub room since “the fact churches, lodges, stores, tenant old Negroes poor lic schools have been houses, building or whatever is avail * * * past has a bear direct able.” being ing quality on the of instruction “ninety-four percent As late ** (cid:127) n .”80 done Negro high population the educable * age” findings *.” school “not in school All con- were of these have been hardly surprising studies, professional This was since “there firmed various twenty-eight including University counties Missis- those for the [were] any recog- Legislature.81 sippi which not have the State [did] Twenty Progress 70. Tears of Economic 1910-1930 General Social and Survey Characteristics, Mississippi, A Biennial Final Re- Scholastic Tears port PC(1)-26C, Educa- 26-112 1929-30 1930-31 Public Table at Mississippi (1961). [hereinafter tion in cited Twenty Progress]. Tears of Report 1937-39, 77. 16. Biennial Twenty Progress 71. Tears 107. Report 1943-45, 78. 21-22. Biennial Twenty Progress 72. Tears 90. Report 1955-57, 40, 79. 41. Biennial Report 1933-35, 73. Biennial 41. Report 1957-59, 40, 41. 80. Biennial 74. Ibid. Report of In- Committee 81. A See 1935-37, Report 75. Biennial Training vestigation Fa- of the Teacher Negroes Mississippi, Negroes Bul- “schooled” in that era cilities for Ibid. (1930) approximately letin No. 61 are still a factor since Education; Higher Negro (79,183) Department Edu- of the State’s 1960 8.6% Mississippi: Survey Report population A were born between 1923 and cation Trustees, entry grade (Assuming Board of Institutions to first at Learning grade Higher (1954) schooling terminating years, Brew- John E. Director; ton, eight.) Mis- Education in Public States Bureau Legisla- Report Popula- sissippi Census, : United States Census of legislation Pursuant all overworked, staffed underpaid, under- teachers.83 Negro counties were to make educational sur trained veys of educational facilities submit reorganization plan July 1, The 1890 Plan 1957. Sur Has Worked veys agen specified were to be made In the field discrimination, of racial university system. cies of the state figures Figures do best, count. tell the materials furnished the Government whole, story. if not the United States ex contain and summaries extracts Wiman, rel. Cir., 1962, Seals v. 304 F. many reports 1955 to in count made 53, figures 66, 2d at 67.84 The here are ies.82 Negro schools, toAs are devastating.85 many little less than In nearly per capita per all the same: with counties other than the six listed in the pupil expenditures running frequently majority opinion (Part IV), the actual Negro whites, two to in one favor of percentage reg result buildings shows that of run-down, school are inade Negro quate, unlighted, overcrowded, istered without voters runs from a low desks, facilities, high blackboards or needed to a This is in con- 0% 2.9.% Study Committee, pictures Negro tive Education Decem- of the schools that 1961; pathetic.” ber Public Education in Missis- situation is In a one-teacher sippi Report Advisory Study Groups, school, : inadequate, “the windows are * * * Higher Learning, lights Institutions it has no and the furni- ture consists of chairs and benches. Reports 82. The * extracted are Dr. John * supply There is no water *. Phay, E. Director Bureau of Educational Teaching aids, such as chalk boards and Research, University bulletin boards are desired.” Another Ralph Owings, Dr. S. Head and Profes- one-teacher schoolroom “has metal roof Administration, sor of Educational Mis- inadequate leaks. The windows are sissippi College. Southern * * panes missing and half the are *. lights (see There are no As for another era note su- furniture is pra), home-made benches. There is no water those “schooled” the 1955-57 supply another, important. attending at all.” In “the era are teach- Those then ing inadequate. (grades through 12) span years aides are most birth during en- tire Negroes facilities are not suitable for of 1939-1951. school.” born county, period Of throughout comprise approximately another “It be said that 24.6% county high (226,500) Negro population. the entire of the 1960 Negroes pre- school exists which See United States Bureau of The Cen- enough sus, sents a Population curriculum attractive United States Census boys girls hold in school. The General needs Social and Economic Char- youngsters being acteristics, these Mississippi, Report are not met.” Pinal PC * * * “may It (1)-26C, be noted Table at 26-112. Negro elementary schools, quality following concerning 83. The comments education and the materials available for Negroes county reports teaching in various seem to be far below that * * typical: program very “The is weak and the white schools. “ * * * * * * * * inadequate boys quality *. These both girls getting program quantity housing, availability are not of edu- * * * appears to of too much cation that be instructional materials * * Negro consequence. listing elementary *. The schools are below * * anything offerings those of would reveal the white schools. prove that would valuable.” “The build- Allen, 1953, inadequate ings Negroes Brown v. 344 U.S. are most 469; 97 L.Ed. Smith v. Tex deplorable and in a condition.” “There as, 1940, 61 S.Ct. teaching materials and dearth 84; Speller Allen, 1953, L.Ed. Negro equipment in all schools. 443, 477, L.Ed. shortage boards, chalk There is a bul- boards, reading material, charts, letin 36, 48, 85. I Negroes purpose. achieved —has cannot, example, declare the Court pos- present Only trial, at least is all one nature’s accidents. that this case, choice. can resolve the ture of this in the face of And other evidence drawn, inference, offer, after proposes once can- That the Government charged early stage or as matter of fact trial as a either not be off at this long go way law, by many voluntary matter of will thousands conduct —if establishing way Negroes. of adult For in whole —toward voter-registration-voting seeking interrogatories response the entire like allegations invalid, it has not because basis for the in the structure factual Negroes regularly, discriminatorily applied, be- complaint but been way consistently cause it meant to work denied was been register both, and has. or vote or the Govern- 1962 June Negroes

Whites Number Number Registered County Registered 21 Over 21 Over % % 7,250 5,309 7,639 2 .028 69 Panola 5,822 2,011 1,436 42 .72 71 Tunica 7,168 4,342 4,162 .8 57 96 Marshall 8,719 7,598 7,130 2.9 256 Vazoo 93.0 6,407 7,533 Copiah 8,153 25 .39 92.0 5,622 10,366 5,458 1.1 121 97 Madison 5,000 2,998 6,072 .03 1 83 Clarke 5,099 4,330 6,483 .07 5 85 Tallahatchie 8,757 4,773 3,530 8 .09 70 Holmes Kemper 3,113* 3,224* 3,221 .9 100 30 12,655 22,431 7,495 22 .3 57 Forrest 1,071 6,489 5,593 0 Lamar * figure Doubtless or the other error. This is as reflected in the answers. one significance generally also the an- This illustrates are found These on the Gov- of evidence discrimination These answers were swer volumes. theory. relating paragraph (f), (g), dis- It is not to show ernment’s to weigh approximately criminatory application, complaint. but to show the These discriminatory pounds, I structure. thick. result of a and are over one foot 36, 48, 60, and these as in notes treat Exigencies Meeting Lightfoot, From the Gomillion 364 U. then Reverses Law’s \S. 5 L.Ed.2d judicial into, permit inquiry would both rapidity even the The with which judicial for, redress racial dis slightest Maginot breaches Line crimination. continuing were closed demonstrates a purpose, but to institute Package The 1962 maintain a of discrimination. structure Only may complaint brief now be mention made The describes in detail the n against Registrar some the more vivid of these. Government suit Lynd, including County, ap- Forrest And For Or injunction peal, pending appeal resulting the Fifth 244 to Circuit thereafter first is the amendment to § contempt orders, judgments hearings, prescribe test. a read understand Though Consequently, Peay Cox, Cir., and affirmance.89 Negroes 123, opened up is in no Government sense confined to F.2d the door to understand, material set forth in- the effort answers to the who could read or terrogatories.90 was Government amend Constitution point legitimately impact also now In 1954 full all unsuccessful. publicly developments Lynd pressure of known soon under the realized prove Supreme cases demonstrate that it can the 1954 Court school decision. theory. nutshell, In a theory its With effective aid from Citizens White registration most, all, Councils, package if not both the the 1962 voter direct, bills was a immediate effort amendment and the school amendment giving Legislature to overcome or circumvent successive ad- the discretion to public adopted.88 Circuit, par- maintain verse decisions of the Fifth schools were Lynd ticularly, in the cases. just Was this action a coincidence? Lynd charged essentially was it an Or immediate and The effective re- dis- case sponse possibility criminatory application laws other- great number of under-educated adult wise assumed to be valid. One of the Negroes, segregated product principal weapons discriminatory for ad- acknowledged inferior, registration appli- schools then to be ministration was eligible'to orally Contrary would now at least be cation form.92 as- to the bland understanding interpreta- sumption majority that, an opinion in the now, tricky alleged ? application tion And if not would “No form is early eligible exhibited,” Majority Opinion be future and as more Part Negroes XIV, more developments would receive an educa- at in the equal Lynd quality tion as a of “in- result eases demonstrated that the form tegrated” formerly ambiguities, pitfalls, attendance at all was loaded with stage pro- traps white unwary, such, schools? At this and for the and ceedings, ready-made the minimum for is called a was device for racial dis- trial. For purposes, if those were the crimination.93 promulgated This material is found in the Govern- 92. This form is the State ment’s I Board, answers. treat it as notes Election 3209.6, § Miss.Code of 36, 48, 60, recently 85 and 87. as amended in 1962 to require space on the form to reflect 89. See notes 9 and 18. good information as to moral character. 90. These materials are found in the multi- example, age your 93. For items “3. State volume I answers. treat these as birth:”, long and date of “8. For how 36, 48, 60, 85, Also, sign property applicant in here.” as cases of situated “The will his name out, county.” Though perfectly filled and the otherwise assessed reject- frequently Negro applicants were 161-word, 124. is de- § 96. This section a sign bottom ed of failure to the because par- explanation tailed doning of the Governor’s (white Negro) con- line which most and pardoning power mecha- and the place minister- be the for a structed to applicant nism. general sign. (a) Both to the (b) fill oath blanks to and minister’s had descrip- long is § 97. 160. This section a years, “in out this State two residence Chancery jurisdiction tion of the (cid:127) — -(cid:127) of- and County Election District elaborating technical distinctions year.” though Even answer one equity estate between and in real law your place Item of resi- “9. Where proceedings. gave correct ad- dence the District” registrar hiring dress which would enable the for § 98. covers the of convicts precinct precisely voting private public from know work. or proper voting records District for the 155-word, de- § 99. 273. This section applicant and the Item 10 answer to description tailed of the constitutional “Specify residence the date when such amendatory mechanism. began” would establish it exceeded years year respectively, two and one governor receive § 100. “The shall 118. rejected wrong application was if the compensation as his services such election was in the blanks district named may law which shall neither fixed of the oath. during his be increased nor diminished term office.” space

94. “Item below a 20. Write setting your legislature empower may statement forth understand- 101. § 139. “The ing obligations governor appoint of citi- of- the duties to remove and zenship gov- county ficers, mu- constitutional form of under counties regula- nicipal corporations, ernment.” under such prescribed by tions as law.” 112. § shall “Taxation be uniform equal throughout Property a one- § This section contains state. proportion hiring shall be its value. on of con- taxed sentence restriction legislature may, impose however, The victs. specific Fifth Circuit found a series V. Regis- enjoined discriminations Legal No Obstacle Relief committing specific trar from acts. When the Govern- true nature registrar 818, F.2d was at 823. theory kept mind, ment’s none of give Negroes ordered to the benefit legal arguments advanced type the same theretofore assistance majority stumbling as a serves block. given reject- persons; to white to cease evidentiary ing materials, Negroes giv- applications If Government from without disparity ing estab rejection; lishes104 that the the cause or reason for rejecting obviously is the result a structure instituted or qualified and to cease Negroes purpose inconsequential thereafter maintained for the or no er- denying Negroes’ right vote, then rors. every statutory-constitutional each and Typical response the immediate helpful operation element 1962, Miss.Laws 570. Prior Ch. illegal machine must fall. amendment, required this section validity Apparent such applicant application fill face out the form significance. enactments will be of no suggestion without assistance U.S., 1960, Lightfoot, Gomillion v. any person. The added that amendment 125, 110; L.Ed.2d S.Ct. requirements of the statute were Hopkins, 1886, Yick see Wo v. 118 U.S. mandatory; application that no shall be 220; 30 L.Ed. Lane approved registered applicant un Wilson, 1938, v. 59 S.Ct. application all less blanks on the form L.Ed. 1281. Hence cases responsively” “properly out filled Mississippi, as 170 U. Williams applicant; and that both oath S. 42 L.Ed. application as such form must be Darby Daniel, S.D.Miss., 1958, F. signed separately by applicant. And Supp. majority (see 170 which the Part inject a new standard which would XII) holding stresses “on the face” defy Appellate a Federal Court determi consequence precedents are of little particular applicants nation that were persuasiveness. qualified law,103 as matter of Miss. Laws Ch. 575 was im enacted to preoccupation the ma- extended plement the 1960 244 jority Amendment (see X) Part thesis by inserting good qualification exclusively moral re voter com- character quirement. mitted to the states neither accurate required publi Another bill significant. nor All bends to the Federal applicants cation of the names of Constitution.105 public allowed members of the thereafter challenge applicants. such Miss.Laws elusive, Nor could undefinable 1962, “good Ch. 572. (see moral character” test Part 103. been Spencer This has done at least twice Camilla Cotton Kel- Oil Co. v. logg Sons, Cir., 1958, the Fifth Circuit. Alabama United 5 F.2d 257 States, Cir., 1962, 583, 584, 162; 5 304 F.2d at Smoot v. State Farm Mutual Auto- aff’d 594, mem., 1963, 37, Co., Cir., 1962, 371 U.S. 83 mobile Ins. 525), 5 F.2d 299 145, para question S.Ct. 9 L.Ed.2d And see I do know. That not graph unpublished contempt 2a the order before me or the Court since Lynd case, denied, 1964, yet certiorari Government filed motion 968, 486, stage, 375 U.S. 416; 84 11 S.Ct. L.Ed.2d for affirmative relief at this either Cir., 1963, summary judgment 5 321 F.2d 26. I or otherwise. judgment intimate no on these factual 104. Whether it will be able to establish matters. any portion supporting all or facts fact-finding Judge analysis either as a matter of or as 105. See Wisdom’s detailed law, of, a matter of either advance shibboleth United States v. after, (see Louisiana, (3-Judge), trial Carss v. Outboard Ma- State of 1963, D.C.La. Corp., Cir., 1958, 690; rine 353, 5 F.Supp. 252 F.2d why XIII) employed.as or ef since “is no reason [courts] an intended there n should ignorant discrimination, pretend no to be more instrument of fective unobserving than the rest mankind.” established it matter how well professional requirement 10 statutory permits. or business Standards respectfully I dissent. therefore unobjectionable kind, often otherwise praiseworthy, must not be available con purposeful discrimination shield Circuit, for Fifth its exercise. The ceal n example, requirement a similar held unconstitutional alumni recommendation get Negro hope such could since per Mississippi white assistance Cir., Fair, Meredith v. sons. Ludley 701-702; and see F.2d also CORPORATION, AMERICAN BACON ,v. Supervisors of Louisiana Board of Plaintiff, corporation, E.D.La., F.Supp. University, aff’d, Cir., cert. de 252 F.2d OF CAL MOLD CORPORATION SUPER nied, 1958, 358 U.S. S.Ct. corporation, IFORNIA, a Defendant. certainly look L.Ed.2d close 61. And Civ. No. 8009. given to a whole must be test when the ap public publication States District Court —from challenge California, plicant’s D. name —is invited to D. N. N. Negro. “good character of moral” March

,If rights First freedom Amendment pro expression are of association (see publicity tected note supra), surely Fifteenth Amend then rights deserving. just ment Finally, nothing North- in Lassiter v. County Elections, 1959, ampton Board 3 L.Ed.2d .1072, supposing that affords basis for understanding literacy .either a test or purpose- test is free from attack when

fully grant, deny, not chosen to voter

privileges. against Negroes, on the

Discrimination theory,

Government’s has not resulted discriminatory administration happened it It has because valid laws. happen. To

was meant to eradicate piece by evil, the attack need not be made

piece. be made frontal as

sault on the structure. What whole saying is that Government is purpose, and now knows that this was the the Court see what

all wants understand,” see and others can “[a] Waller, Enterprises Bailey Drexel Affiliated 106. Chief Justice Taft Terry Co., 1922, 5 A.2d 40 Del. Furniture 66 L.Ed. 817. treat notes and 60. Negro maps, library books.” “The The material comes from the Govern- buildings inadequate are most and in a stating ment answers factual detail * * deplorable condition *. support allegations the statistical quite complaint. evident from examination of date, high citing chapter, verse, county, ment, and a to a low 57 trast 100% % time, name, circumstance, iden- counties.86 in the same for whites Negroes who have tified thousands of might be ex- Of there several course sought these but who have been denied might figures. planations One for these rights.87 plausible This leaves as Negroes this is what the want. asserted the Government— inference might just acci- that this is Another plan, supplemented in- that the 1890 might A be that dental. third segregated society, in a ferior schools carefully proves aof the effectiveness operating in a white demo- closed man’s Negro. plan A to exclude the contrived changes primary cratic choosing possible inferences from those body large freezing in a pleadings or a mo- not a function of freezing out thousands of whites while dismiss, dismiss. On a motion to tion to

Notes

notes 87 and 88. you Mississippi?” resided “10. stage, proper at least at Specify when be- the date such residence judicial knowledge take the records gan,” called identical for information for proceedings Lynd and of all of the cases. yet resident, a native-born continuous discrepancies rejection. 91. See note 27. Item resulted 160,97 discrimination, 224,98 273,99 all greatest exceed § § source of having ingly complex provisions long, requirement lit course, Con- tle relation to the usual notions of applicant copy section of government (Item registrar nature our constitutional stitution selected simple, contrast, inter- In and its structure. 18) his reasonable and then write meaning 19) thereof, (Item ones were pretation direct and more fundamental given whites, frequently his under- never to but also a statement write obligations Negroes, 118,100 139,101 standing such as § § § the duties and 20).94 citizenship (Item 226.102 Lynd Mississippi Con- the use about case centered Those sections of Negroes injunc- application given frequently but form. stitution 124,96 affirmed), (later 112,95 pending appeal § tion were § never whites you per capita upon ani- to take: desire tax domestic “12. which oath Check (2) (1) habits are as from their nature and Ministers-- mals General- property. Property (4) (3) If under of other destructive Ministers’ Wife- gen- years years present, for under shall be assessed taxes but at according rules, laws, general Item uniform election -.” eral date s— legislature Sign named But or affirmation to its true value. may provide “21. oath “(a) special for mode of valua- 12.” was followed Question railroads, and OATH” for SPECIAL and assessment GENERAL and/or corporate property, consisting line railroad an affidavit with a and other Signature particular species property signature “Applicant’s be- marked longing corporations, “(b) persons, MIN- or as- As To OATH OF Oath” wholly in one WIFE” situated MINISTER’S sociations county. ISTER and/or “Ap- property marked But all such shall and a line affidavit county value, Signature plicant’s Im- at true and no As To Oath.” assessed county levy mediately minister’s shall denied the below line special signature line marked taxes such assessment there was another

Case Details

Case Name: United States v. State of Mississippi

Court Name: District Court, S.D. Mississippi

Date Published: Jun 22, 1964

Citation: 229 F. Supp. 925

Docket Number: Civ. A. 3312

Court Abbreviation: S.D. Miss.