Bell v. Southwell

• Decision Date: 14 April 1967
• Docket Number: No. 23582.,23582.
• Citation: 376 F.2d 659
• Parties: Mary Fishe BELL et al., Appellants, v. J. W. SOUTHWELL et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

376 F.2d 659 (1967)

Mary Fishe BELL et al., Appellants, v. J. W. SOUTHWELL et al., Appellees.

No. 23582.

United States Court of Appeals Fifth Circuit.

April 14, 1967.

C. B. King, Dennis J. Roberts, Albany, Ga., Jack Greenberg, Charles Stephen Ralston, Melvyn Zarr, New York City, for appellants.

George R. Ellis, Jr., Geo. R. Ellis, Americus, Ga., for appellees.

Before BROWN, GOLDBERG and AINSWORTH, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

A Georgia election was conducted under procedures involving racial discrimination which was gross, state-imposed, and forcibly state-compelled. Nevertheless the District Court by summary judgment held it could not set aside such election or order a new one even though in parallel cases the unconstitutional discriminatory practices were enjoined and all persons arrested were ordered discharged immediately. We reverse.

The underlying facts out of which the controversy grew may be quickly stated. The Justice of the Peace for the 789th Militia District in Americus, Sumter County, Georgia, died on June 23, 1965. The Ordinary¹ on June 26, 1965, called a special election to fill the vacancy, which was held on July 20, 1965. Mrs. Mary F. Bell, one of the plaintiffs, a Negro, was a candidate as was the winner, J. W. Southwell, a defendant, and four other white men.² Following Georgia procedure, the results of the election were canvassed and the defendant J. W. Southwell declared the winner. Of the 2,781 votes cast, Negroes actually voting numbered 403 out of a total of 1,223 registered and qualified Negro voters in the District. On July 29, 1965, and after the expiration of the time for election contest under Georgia laws, this suit was filed. The District Judge by opinion denied relief for three reasons, two Georgia and one Federal. First, even assuming the admitted racial discrimination intimidated Negroes from voting, if all of the qualified Negroes not voting were added to the confined vote of Southwell's opponents, the result could not have been changed.³ Second, if the election were voided, the Ordinary would be required to appoint the successor and the appointee would surely be Southwell. Third, Federal Courts simply do not have power to void a state election.

This suit, brought on their own behalf and on behalf of other Negroes and other voters in the District by Mrs. Bell, a qualified elector and candidate, and two other named Negro qualified voters, against the defendants Southwell and Horne, the Ordinary, invoked the Civil Rights Acts, 42 U.S.C.A. §§ 1971, 1981, 1983, 1985, 28 U.S.C.A. § 1343(3), (4). The main charge was that the election officials including the Ordinary had conducted the election in violation of the rights established under the Constitution and laws of the United States. The specific allegations fell in two categories, one relating to the election system and the second to specific acts of intimidation. In the first it was alleged that voting lists for the election were segregated on the basis of race. Likewise, voting booths were segregated according to race, with one booth for "white males", another for "white women", and a third for Negroes. During the course of the election, a number of qualified Negro women voters were denied the right to cast their ballots in the "white women's" booth. In the second group were charges that the officials barred representatives of candidate Bell from viewing the voting, another was physically struck by an election official and police allowed a large crowd of white males to gather near the polls thus intimidating Negroes from voting. In addition, the plaintiffs were commanded by a deputy sheriff, acting under directions of the Ordinary, to leave the white women's polling booth and after their respectful refusal to do so on the ground that they had the constitutional right to vote without being subjected to racial discrimination, they were arrested. With precision, through simultaneous motions for temporary restraining order, preliminary injunction, show cause orders, and the immediate release from arrest, the plaintiffs requested that the Court declare the defendant Southwell was not the legally elected Justice of the Peace, that he be enjoined from taking office, and that the Ordinary be ordered to call a new election.

In addition to the answer, which in the main admitted the maintenance of segregated voting lists and polling booths (group 1) and denied the specific acts of misconduct (group 2), the defendants filed a motion to dismiss and subsequently three affidavits which bore primarily on the election statistics (see notes 2 and 3, supra) and a verified denial of the physical violence.⁴ The Court properly treated it as a motion for summary judgment under F.R.Civ.P. 12(b).

It rounds out the picture to state that this record affirms without contradiction that two parallel companion cases were before the District Court, one by the United States against various officials of Sumter County, the other an identical suit by these appellants-plaintiffs against the same Georgia officials.⁵ Hearing them simultaneously with the application for preliminary relief in the instant case, the District Judge in those two cases entered an injunction enjoining the defendants from maintaining racial segregation at the polls, from maintaining segregated voting lists, from arresting or interfering with Negro voters, and from prosecuting the plaintiffs for their conduct leading to their arrest on July 20, 1965.⁶ 10 R.Rel.Law Rept. 1247.

Subsequently the Court on the basis of the pleadings and affidavits granted summary judgment, F.R.Civ.P. 12(b) for the defendants. In the opinion the Judge specified the three grounds previously mentioned — (1) the actions complained could not have affected the outcome of the election, (2) if the election were voided, a new election could not be ordered since §§ 24-406 and 408, Ga.Code Ann. requires the Ordinary to fill such a vacancy by appointment, (3) there is no authority, statutory, constitutional or equitable, for a Federal Court to void a state election.

We think that the Georgia problems are inconsequential and deserve only the later brief discussion. The claim invoked the protection of the Federal Court under statutes which assuredly give it jurisdiction to vindicate constitutional rights. Since it is clear that constitutional rights of the plaintiffs, the Negro voters as a class, indeed all voters, Negro and white, of the District were infringed, the sole question remaining is the sort of relief to be granted.

By the decrees in the companion cases (note 5, supra) which all properly consider to be a part of the matter presented additionally by this case, the trial Court in unmistakable terms and action characterized the practices as flagrant violations of the Constitution. These steps were taken, so the Judge said, "to insure that in the future, elections in Sumter County will be free from discrimination." Despite his determination that for the future these glaring racial discriminations could not go on, the trial Judge concluded that a Federal Court was either powerless — or at least ought not to exercise power — to set aside a State election. The Judge was apparently influenced by two factors. The first is one going to the existence of power or the propriety of its exercise. On the basis of Reynolds v. Sims, 1964, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and other reapportionment cases, the trial Court recognizing that a prohibitory decree could took to the future, nevertheless held that it could not rectify the past since, as the Judge put it, "only a few minutes' reflection is needed to realize that the implications of such a decision would be staggering." The second slipped over into a Georgia reason that, granting the existence of this crude discrimination, there is no way to tell whether the result would have been different in its absence. Hence, no harm or injury is shown by these complainants. Neither of these factors warrant, in our view, the complete denial of relief.

Drastic, if not staggering, as is the Federal voiding of a State election, and therefore a form of relief to be guardedly exercised, this Court in Hamer v. Campbell, 5 Cir., 1966, 358 F.2d 215, cert. denied, 1966, 385 U.S. 851, 87 S.Ct. 76, 17 L.Ed.2d 79, expressly recognized the existence of this power. Of course as that opinion emphasizes, not every unconstitutional racial discrimination necessarily permits or requires a retrospective voiding of the election. But the power is present and Hamer, announced subsequent to the action of the District Court below, would require reversal without more for re-examination by the District Court of the appropriateness of injunctive relief.

As to the second we do not think the Court could justify denial of effective, present relief because of any assumed inability to demonstrate that the outcome would have been different. The appellants seem to suggest that the existence of such flagrant racial discrimination would raise a presumption that the vote of every actual and potential voter was affected. On that approach, it is not Negroes alone who suffer, it is the body politic as a whole, both Negro and white. And this is certainly true at least to the extent that the trial Court legally could not assume — as it evidently did — that all white voters would vote for white candidates, all Negroes for Negroes, or that no whites would vote for Negroes in a free, untainted election. See Hamer v. Campbell, supra, 358 F.2d 215, 219.

As long as we bear carefully in mind the limitations that Hamer imposes on this stringent relief, we think it is a mistake to cast this in terms of presumption. The fact is that there are certain discriminatory practices which, apart from demonstrated injury or the inability to do so, so infect the processes of the law as to be stricken down as invalid. Virginia State Bd. of Elections v. Hamm, 1964, 379 U.S. 19, 85 S.Ct. 157, 13 L.Ed.2d 91...