United States v. Duke, 20800.

• Citation: 332 F.2d 759
• Decision Date: 22 May 1964
• Docket Number: No. 20800.,20800.
• Parties: UNITED STATES of America, Appellant, v. Leonard C. DUKE, Circuit Court Clerk and Registrar, Panola County, Mississippi, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

332 F.2d 759 (1964)

UNITED STATES of America, Appellant, v. Leonard C. DUKE, Circuit Court Clerk and Registrar, Panola County, Mississippi, et al., Appellees.

No. 20800.

United States Court of Appeals Fifth Circuit.

May 22, 1964.

Harold H. Greene, Gerald P. Choppin, Attys., Burke Marshall, Asst. Atty. Gen., H. M. Ray, U. S. Atty., John Doar, Atty., Dept. of Justice, Washington, D. C., for appellant.

Peter M. Stockett, Jr., Sp. Asst. Atty. Gen. of Mississippi, William A. Allain, Will S. Wells, Asst. Attys. Gen. of Mississippi, Jackson, Miss., Herbert M. Fant, Sardis, Miss., James McClure, Sr., James McClure, Jr., Sardis, Miss., Robert T. Riser, Batesville, Miss., Joe T. Patterson, Atty. Gen. of Mississippi, for appellees.

Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.

TUTTLE, Chief Judge.

When this suit was filed by the United States on October 16, 1961, Panola County, Mississippi, had 7,639 white persons, and 7,250 Negroes of voting age. At least 5,343 white persons were then registered to vote. The only Negro registered to vote in Panola County was R. H. Hightower, 92 years old, who had registered in 1892. This does not tell the whole story, because another Negro, E. H. Holloway, was registered on January 5, 1952, but he is now deceased. Also, after this suit was filed, and before the trial in the court below, one Houston Potts, Jr., was registered in April, 1962.

Proceeding on the theory that such a situation could exist only because of state action which unconstitutionally interfered with the exercise of the voting franchise by the Negro citizens of Panola County, the United States brought this suit against Duke, Circuit Court Clerk and Registrar of Panola County, and the state of Mississippi.

The complaint alleged that the defendants, in conducting registration for voting, have engaged in certain racially discriminatory acts and practices which deprived Negro citizens of Panola County of the right to register to vote without distinction of race and color; that these deprivations were pursuant to a pattern and practice; and that, unless restrained, appellees will continue to engage in such acts and practices. The prayer was that the trial court make a finding of the existence of a pattern and practice of discrimination and issue an injunction enjoining appellees, their agent, employees and successors from engaging in certain acts and practices.

Considering the registration requirements in Mississippi, there are three periods of substantial significance touching on the issues of this case. The Mississippi Constitution of 1890 requires registration as a prerequisite to voting. Prior to 1955, Section 244 required that an applicant, otherwise qualified, be able to read any section of the Mississippi Constitution, or understand it when read to him, or give a reasonable interpretation thereof.

To be otherwise qualified, an applicant must (1) have fulfilled the residence qualification; (2) be a citizen not less than 21 years of age (or reach the age 21 before the next election); (3) not have been convicted of any disqualifying crimes enumerated in the Constitution or laws of Mississippi; and (4) not be insane. Payment of poll taxes, while required for voting, is not a prerequisite to registration.

After April 4, 1955, when the State legislature implemented the amendment of Section 244 of the Mississippi Constitution, the following additional requirements for registration became effective: applicants must be able to read and write any Section of the Mississippi Constitution and give a reasonable interpretation thereof; they must demonstrate a reasonable understanding of the duties and obligations of citizenship under a constitutional form of government; and they must make sworn written application of registration on a form prescribed by the State Election Commission. These additional requirements applied only to persons registered to vote after January 1, 1954.

In 1960, shortly before the passage of the Civil Rights Act of 1960, the state legislature authorized the destruction of the application forms. Mississippi Code, Section 3209.6, as amended. In addition, a new section (241-A) of the Mississippi Constitution added the requirement that an elector be of good moral character. In 1962, implementing legislation was enacted (Section 3235, Mississippi Code). The legislature also amended Section 3209.6 to require the State Election Commission to include in any application forms which they prepare for the use of the registrars spaces for information showing good moral character (in order that the applicant might demonstrate his good moral character to the registrar). Finally, two additional statutes were passed and became effective in May 1962. One (H.B. 822, Reg.Sess. 1962) provides for the publication of the names of all applicants for two successive weeks, following which a two-week waiting period is required before an applicant may become registered. The second (H.B. 904, Reg.Sess. 1962) provides for a procedure by which qualified electors may challenge the good moral character of an applicant.

Although we have given the requirements down through the enactment of the laws in 1962, the three periods of importance here are the period before 1955, the period between 1955 and 1960, and the period from 1960 until this suit was filed on October 16, 1961. It must be borne in mind that registration is permanent in the state of Mississippi, and, once a citizen's name is on the registration books, he is not required to re-register.

The record before the trial court fully substantiates the contention of the United States that at least until the date of the filing of this suit voting was, for white persons in Panola County, Mississippi, a simple corollary of citizenship. It is equally clear that the exercise of this basic right of citizenship was exclusively enjoyed by the white people of this county. The question presented to the trial court, and preserved for our attention, is whether this condition existed without a course of conduct by the state or local officials which amounted to an illegal interference with the Fifteenth Amendment rights of Negro citizens of Panola County.

The trial court, after requiring the United States to file a more definite statement to charge specifically the alleged discriminations with the degree of specificity required under Rule 9(b), Federal Rules of Civil Procedure, dealing with allegations of fraud,¹ proceeded to a hearing of the case on oral testimony. Although in its findings of fact the trial court did not resolve all of the conflicting testimony, it found that between 1932 and 1959 not more than five or six Negroes had applied to register in Panola County, and that one of these had been registered. It found that there was no evidence showing that any particular Negro who had been otherwise qualified had been denied the right to register because of race or color and further that there was no evidence that any Negro had been denied such right because of race or color. It found that there "was no evidence"² that Duke or the state of Mississippi or anyone else in Panola County had done anything to intimidate or discourage Negroes from attempting to register. The court doubtless intended to say that it found against such evidence rather than that there was "no evidence."³ The court found that Duke and his deputies helped white applicants but it found that there was no evidence showing that he refused to help Negroes. The court found that the registration of white people who should not have been registered apparently occurred "largely by inadvertence because of the lack of training of the sometimes inept deputies and without the knowledge or discretion of the defendant Duke." The court found that women deputies always referred Negroes to Duke "as a matter of personal preference by the women." It is undisputed that on each occasion when Negro applicants sought to register, they had to wait for Duke's arrival from some other place if he was not in the office. He was usually at Sardis.⁴ The court found that no denial of the rights of Negroes was shown from the fact that whites had been registered who did not meet the standards for registration set by the Mississippi laws. It also found that it was not shown with respect to any of the Negroes who testified that the "lesser and mistaken standards applied to some white people could be met or surpassed by them."

Statistical evidence agreed to by the parties showed that there were more than 2,000 Negro residents of Panola County who had received seven or more years of schooling. Although no figures were introduced, we can doubtless take judicial notice of the fact that with approximately 750 Negro residents having had some high school training, there must have been a significant number of high school as well as grade school teachers, principals and other school professional personnel among the Negro race to conduct the public schools of Panola County, under the "separate but equal" school operation that is required under the Mississippi laws.

This Court has said, "In the problem of racial discrimination, statistics often tell much, and Courts listen." State of Alabama v. United States, 5 Cir., 304 F.2d 583, 586. In United States, ex rel. Goldsby v. Harpole 5 Cir., 263 F.2d 71, at page 78, we said:

"We cannot assume that Negroes, the majority class in Carroll County, had en masse, or in any substantial numbers, voluntarily abstained from registering as electors and, by such action, had rendered themselves ineligible for jury duty. If the registration officials freely and fairly registered qualified fied Negroes as electors, that fact rested more in the knowledge of the State. The burden was on appellee, as the State\'s representative, to refute the strong prima facie case developed by the appellant. The only Negroes ever proved registered as electors in Carroll County were two who had died before 1954."

Her...