United States v. State of Mississippi

• Decision Date: 28 December 1964
• Docket Number: No. 21212.,21212.
• Parties: UNITED STATES of America, Appellant, v. STATE OF MISSISSIPPI et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

339 F.2d 679 (1964)

UNITED STATES of America, Appellant, v. STATE OF MISSISSIPPI et al., Appellees.

No. 21212.

United States Court of Appeals Fifth Circuit.

December 28, 1964.

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Gerald P. Choppin, Harold H. Greene, Alan G. Marer, Attys., Dept. of Justice, Burke Marshall, Asst. Atty. Gen., Robert E. Hauberg, U. S. Atty., John Doar, Battle Rankin, Attys., Dept. of Justice, Washington, D. C., for appellant.

William A. Allain, Asst. Atty. Gen. of Mississippi, Peter M. Stockett, Jr., Sp. Asst. Atty. Gen., Breed O. Mounger, Tylertown, Miss., Joe T. Patterson, Atty. Gen. of Mississippi, and Will S. Wells, Asst. Atty. Gen., Jackson, Miss., for appellees.

Before TUTTLE, Chief Judge, and JONES and ANDERSON,^* Circuit Judges.

TUTTLE, Chief Judge:

This is another suit brought by the United States under the provisions of the Civil Rights Act of 1960, seeking to enjoin a Mississippi county registrar from engaging in racially discriminatory acts and practices to deprive Negro citizens of the right to register and vote, without distinction of race or color.

Filed, as it was, in August, 1961, the history of this litigation largely paralled a similar suit brought in Panola County several months later, in October, 1961. That action was finally terminated in this court when, on May 22nd of this year, we entered an opinion in the case of United States of America v. Duke, et al., 5 Cir., 332 F.2d 759, directing the trial court in the Northern District of Mississippi to enter an injunction largely as prayed for by the United States.

Because of the great similarity of the proof that was presented to the trial court in this case with that which was considered by us in the Duke case, and particularly in light of the specific findings by the trial court here, our recitation of the factual circumstances upon which we conclude that similar disposition is required in this case, can be considerably abbreviated.

At the time this suit was filed there were 4536 white persons and 2490 Negroes of voting age in Walthall County, Mississippi. The registration books showed that there were 4738 white persons currently registered to vote, and no Negroes. There had been a complete re-registration of the voters of Walthall County in 1946. The record does not disclose the reason for such re-registration. However, since the Mississippi statutes appear not to require a regular purging of the rolls on account of the death or removal of registrants, it may be that when the current rolls show substantially more registrants than there are eligible voters, the county election officials require a complete re-registration, under the provision of the Mississippi law, when "a new registration is necessary to determine correctly the names of the qualified electors."¹ Otherwise registration in Mississippi is permanent.

Even if these statistics are not proof of the fact, cf. United States ex rel. Goldsby v. Harpole, 5 Cir., 263 F.2d 71, 78, we find that the record before the trial court here 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 Walthall County, Mississippi, a simple corollary of citizenship. In the findings of fact made by the trial court in this case, the court said, "Substantially all white citizens who applied to register were allowed to register." As we stated in the Duke case, supra, "It is equally clear that the exercise of this basic right of citizenship was exclusively enjoyed by the white people of this county."

White persons who applied were permitted to register without complying with the current and increasingly difficult provisions of the voters' registration statutes enacted by the state of Mississippi on a time schedule that coincided with the indications that more Negroes would make the effort to register. As a result of this, "the barriers grew successfully higher, so that in 1960 the understanding clause was inserted, and in 1962 the good character requirement was added."

The registrar permitted illiterate white persons to register and gave assistance to white registrants in the filling out of their registration forms, so that it turned out, as was the case in Panola County, "the application was treated largely as an information form when submitted by a white person. It was a test of skill for the Negro. It was not even a test of literacy for the white, whereas any Negro applicant demonstrated his literacy in filling out the form. Moreover, even though aid was available to the white applicant when construing a section of the Constitution of the state of Mississippi, the sections given to such applicants were much simpler and shorter sections than those given to the Negroes to write and construe." On this point the trial court, in this case, found as a fact:

"John Q. Wood did assign white people easy sections of the Constitution to construe and helped them to do so; while he assigned Negroes more difficult sections of the Constitution to copy and never helped them. The law, indeed Mississippi statutes enjoined John Q. Wood not to help anybody on one of these tests and he well understood that duty but did not observe it. He thus employed this test in this manner to discriminate against Negro citizens and thus denied them an equal right to register, which he so much more liberally and generously accorded white people."²

It is not necessary further to recite the specific evidence touching on these matters, other than to say that these findings were supported by ample testimony. However, since part of the basis for the refusal of the trial court to find the existence of "a pattern or practice" of discrimination touching on voting rights, depends upon the trial court's assumption that the relatively small number of Negro applicants for registration was "occasioned solely by reason of the fact that Negroes have not been interested in registering to vote," and that "no probative value can be ascribed to such statistics 4738 white registrants and no Negro registrants because such imbalance in registration is not due in any part to any discrimination between the races," it is necessary to refer to one incident. On one occasion a Negro college student from Tennessee, who had been assisting in teaching Walthall County Negroes about how registration could be accomplished accompanied two prospective registrants to the office of Mr. Wood at the county courthouse. The trial court has not made a specific finding of fact on credibility as between Wood's explanation of what then occurred and that of the two Negro witnesses who appeared on this trial. In light of the court's implicit credibility finding that Wood falsely deposed with respect to the reinstatement of the illiterate voter, discussed in footnote 2, amounting to what the court called "his audacity to the court," we conclude that a fair statement of what occurred follows:

It is undisputed that when Mrs. Peters and Mr. Wilson applied to defendant Wood for the right to register, Mr. Wood replied that since litigation was pending he would not register them. Thereupon, John Hardy, the student, introduced himself and started to apologize; whereupon Mr. Wood took a pistol out of a drawer and told Hardy to get out and, following him to the door, struck him in the head with the pistol. The trial judge, in his findings of fact, referred to this as "an assault."³ The court made a finding that although the two Negroes who attempted to register at that time did not return thereafter, "that incident did not frighten or deter any Negro in the county from registering or attempting to register if he desired to do so."

Because of the remedial steps that are available under the Civil Rights Act, upon the finding by a trial court of the existence of a "pattern or practice" of deprivation of a voting privilege on account of race or color, 42 U.S.C.A. § 1971(e), the United States expressly moved the trial court to make such findings of pattern or practice. This the court declined to do on the stated ground, "There is no need or necessity for any finding by the court as to pattern or practice. There were relatively so few Negroes who applied to register to vote that it would be difficult if not impossible to make any fair determination on that question under the circumstances in this case. But that is not important to a proper disposition of this case under proper control by the court in this case in the further registrations by that office under the orders of the court accompanying these findings."

The trial court, while finding the existence of all of the facts that would constitute a pattern or practice of discrimination, nevertheless declined to make that specific finding. However, a finding of a pattern or practice is either warranted or not according to the facts, not what they were called. Where, as here, the court found a continual course of conduct constituting the policy of the registrar, which is discriminatory, this was tantamount to a finding of pattern or practice within the definition of the statute so as to call into play the procedural benefits arising under Section 1971(e). We dealt with this fully in United States v. Mayton, 5 Cir., 335 F.2d 153, where, at page 158, we said: "The words pattern or practice were not intended to be words of art. No magic phrase need be said...