Hadnott v. Amos

• Decision Date: 19 October 1970
• Docket Number: Civ. A. No. 2757-N,3171-N.
• Citation: 320 F. Supp. 107
• Parties: Sallie M. HADNOTT, Reverend William McKinley Branch, Jack Drake, John Henry Davis, Robert P. Schwenn, Thomas Wrenn, Dr. John L. Cashin, Jr., and the National Democratic Party of Alabama, a corporation, for themselves jointly and severally, and for all others similarly situated, Plaintiffs, United States of America, Amicus Curiae and Party, v. Mabel S. AMOS, as Secretary of State of Alabama, et al., Defendants, Edward F. Mauldin, as Chairman of Alabama Citizens for Humphrey-Muskie, for himself and all others persons similarly situated, Defendant-Intervenor. Emmett F. HILDRETH, Complainant-Respondent, v. Mabel S. AMOS, in her capacity as Secretary of State of the State of Alabama, J. Dennis Herndon, in his capacity as Probate Judge of Greene County, Alabama, R. J. Westbrook, in his capacity as Probate Judge of Marengo County, Alabama, W. E. Dearman, in his capacity as Probate Judge of Sumter County, Alabama, Defendants, and Jack Drake, Defendant-Petitioner.
• Court: U.S. District Court — Middle District of Alabama

320 F. Supp. 107

Sallie M. HADNOTT, Reverend William McKinley Branch, Jack Drake, John Henry Davis, Robert P. Schwenn, Thomas Wrenn, Dr. John L. Cashin, Jr., and the National Democratic Party of Alabama, a corporation, for themselves jointly and severally, and for all others similarly situated, Plaintiffs, United States of America, Amicus Curiae and Party, v. Mabel S. AMOS, as Secretary of State of Alabama, et al., Defendants, Edward F. Mauldin, as Chairman of Alabama Citizens for Humphrey-Muskie, for himself and all others persons similarly situated, Defendant-Intervenor.

Emmett F. HILDRETH, Complainant-Respondent, v. Mabel S. AMOS, in her capacity as Secretary of State of the State of Alabama, J. Dennis Herndon, in his capacity as Probate Judge of Greene County, Alabama, R. J. Westbrook, in his capacity as Probate Judge of Marengo County, Alabama, W. E. Dearman, in his capacity as Probate Judge of Sumter County, Alabama, Defendants, and Jack Drake, Defendant-Petitioner.

Civ. A. Nos. 2757-N, 3171-N.

United States District Court, M. D. Alabama, N. D.

October 19, 1970.

COPYRIGHT MATERIAL OMITTED

Charles Morgan, Jr., Reber F. Boult, Jr., Norman Siegel, ACLU, Atlanta, Ga., Orzell Billingsley, Jr., Birmingham, Ala., and George W. Dean, Jr., Destin, Fla., for plaintiffs.

Jerris Leonard, Asst. Atty. Gen., Civil Rights Division, U. S. Dept. of Justice, Craig M. Crenshaw, Atty., Civil Rights Division, U. S. Dept. of Justice, Washington, D. C., and Ira DeMent, U. S. Atty., Montgomery, Ala., for United States.

MacDonald Gallion, Atty. Gen., of Alabama, John Bookout, William N. McQueen, Leslie Hall and Gordon Madison, Asst. Attys. Gen. of Alabama, Montgomery, Ala., for defendants Amos, Grouby and other Probate Judges, Governor Brewer and MacDonald Gallion.

L. Drew Redden, Rogers, Howard, Redden & Mills, Birmingham, Ala., for defendant Amos.

Perry Hubbard, Tuscaloosa, Ala., for defendants Herndon, Lee and Yarbrough.

Ralph Banks, Eutaw, Ala., for defendants Seale, Henderson, Carpenter, Drummond, Gould and Owens.

R. Clifford Fulford, Levine, Fulford & Pope, Birmingham, Ala., for defendant-intervenor Mauldin. In Civ.A. No. 2757-N.

R. Clifford Fulford, Levine, Fulford & Pope, Birmingham, Ala., for complainant-respondent Hildreth.

MacDonald Gallion, Atty. Gen. of Alabama, Leslie Hall and Gordon Madison, Asst. Attys. Gen. of Alabama, Montgomery, Ala., and Perry Hubbard, Tuscaloosa, Ala., for defendants.

Charles Morgan, Jr., Reber F. Boult, Jr., Norman Siegel, ACLU, Atlanta, Ga., Orzell Billingsley, Jr., Birmingham, Ala., and George W. Dean, Jr., Destin, Fla., for defendant-petitioner Drake. In Civ. A. No. 3171-N.

Before GODBOLD, Circuit Judge, and JOHNSON and PITTMAN, District Judges.

GODBOLD, Circuit Judge:

The numerous issues in these consolidated cases concern elections and voting.

In Hadnott v. Amos, No. 2757-N, plaintiffs challenge the action of Mabel S. Amos, as Secretary of State of the State of Alabama, in accepting for filing, for use on election ballots, party emblems that are so like the emblem earlier filed by the predominantly black National Democratic Party of Alabama (NDPA) as to be likely to mislead the voters. The plaintiffs also challenge as unconstitutional provisions of the Alabama Constitution and Alabama statutes requiring that a state circuit judge must have resided in the circuit for which he is elected for one year preceding his election, and assert that if this residence requirement is constitutional Jack Drake, a candidate for circuit judge in the Seventeenth Judicial Circuit of Alabama on the NDPA ticket, has complied with it and is entitled to have his name appear on the ballot in the Alabama general election to be held on November 3, 1970. They challenge the failure of the Board of Registrars of Greene County to register Drake as a voter in that county, and question the constitutionality of the residence requirements for voters provided by the Alabama Constitution and statute. They ask that if Drake is not allowed to appear on the ballot for reasons relating to residence, no person in the counties composing the Seventeenth Judicial Circuit be allowed on the poll list or be allowed to vote by absentee ballot until it is determined that he has "indicia of residence" in compliance with Alabama law and greater than the "indicia of residence" possessed by Drake.

Hildreth v. Amos, No. 3171-N, was removed to this court from state court.¹ The plaintiff is the incumbent circuit judge of the Seventeenth Judicial Circuit and is the candidate of the Democratic Party for reelection. He seeks to have Jack Drake barred from the ballot as a candidate for the circuit judgeship in the November 3 general election on the grounds that he has not met the one-year residence requirement, that he is not a registered voter, and has failed to comply with the Alabama Corrupt Practices Act relating to filing of a designation of his finance committee. The probate judges of the three counties in the circuit are responsible for preparation of the ballot for their respective counties. Judge Hildreth asks that we restrain them from putting Drake's name on the ballot.

At the threshold, we dismiss the action as to Edward F. Mauldin, who was an intervenor in earlier proceedings in No. 2757-N but is not involved in matters now before us.

I. Party emblems.

The preparation and filing of political party emblems to be used on the ballot is governed by Tit. 17, § 149, Code of Alabama:²

Party emblem on ballots.—Each political party shall, by its state party convention or state executive committee, adopt, prepare, and file with the secretary of state, at least sixty days before each election for state officers, by engraving or otherwise, at least one hundred and fifty copies of an emblem to be printed at the top of the column of such ballot assigned to such party, as a distinctive and characteristic heading thereof; and such emblem shall not be more than one inch and a half square. No party shall adopt an emblem similar in appearance to an emblem already adopted by another political party or organization, and the secretary of state shall, upon the presentation or offer to him of any emblem which in his opinion is so like any other emblem already filed as to be likely to mislead any voter, forthwith notify the committee or any officer thereof or any person sending or offering such emblem of such similarity or resemblance, and shall require such party, organization, or committee to adopt, prepare, and file another emblem. The emblem once adopted, prepared, and filed as aforesaid, shall continue the emblem of the party adopting the same until it is changed by the same or like authority as prepared, adopted, and filed the original emblem, and the changed emblem as prepared and adopted, is filed and accepted by the secretary of state as in case of the original emblem.

The emblem must be "distinctive and characteristic," and it must not "mislead any voter."

At a date not clearly shown, but apparently in 1968, the Secretary of State accepted for filing and for use on the ballot the emblem of the Alabama Conservative Party. It depicted a light-colored bird, at least to some degree stylized rather than literal in depiction, standing upright with wings outstretched, holding in claws and beak a streamer saying "We dare defend our rights." There has been considerable doubt about the bird's genealogy. By some persons it has been considered an eagle, by others a dove or a pigeon. It has even been suggested that it is a short-legged chicken. Whatever its ancestry, it was gentle, conservative and peaceful in demeanor, more likely to be bearing an olive branch than a militant slogan.

In 1968, and at a date apparently later than the filing by the Alabama Conservative Party of its emblem, the NDPA sought to file as its emblem a circular seal around the outer rim of which was the party name. Within the circle was a long-eared donkey, with head, ears and tail erect and standing on all four legs. The donkey was three-dimensional in effect, with a dark or shaded body, and wore a blanket with the letter "D" thereon. Previously the Alabama Independent Democratic Party (supporting the Humphrey-Muskie presidential ticket) had filed an emblem employing a donkey. Its emblem was not in the form of a seal. The donkey was in one dimensional outline with no markings or shading. It was standing on its forelegs and kicking with its hind legs. Its short ears were laid back and its tail down. Alongside it was the slogan "Progress for America." The NDPA and Alabama Independent Democratic donkeys were not even remotely similar except that both were recognizable as donkeys.

Secretary of State Amos rejected the NDPA emblem on the ground that it "would lead to much confusion among the voters of this State." In so doing she noted that the Attorney General of Alabama had pointed out to her the statutory test of whether it was likely to mislead any voter.

The NDPA then adopted its present emblem, which consists of an eagle in a circle, around the rim of which appears the party name. The eagle is in flight, with wings, head and tail extended, dark of body, light of head and beak. Its demeanor is not gentle—in fact it appears to be pouncing on prey. The Secretary of State accepted the emblem, and the party used it in the 1968 election and since then. There is no evidence that the Alabama Conservative Party ever complained of similarity between the NDPA eagle and its earlier bird.

In March, 1970 the Alabama Conservatives sought to clarify the uncertain ancestry of their particular fowl by filing a new emblem which made it trimmer and slimmer, eliminated its dovelike breast, wings and visage, and substituted eagle-like parts and a stern and commanding demeanor, and made it more stylized. Whatever it was originally it now is unmistakably an eagle.

In August, 1970 the Alabama Independent Party filed its emblem, a flying eagle, with outstretched wings, dark of...