Clayton v. North Carolina State Board of Elections

Decision Date29 September 1970
Docket NumberCiv. A. No. 2446.
Citation317 F. Supp. 915
CourtU.S. District Court — Eastern District of North Carolina
PartiesEva M. CLAYTON, Eugene Greuling, Philip R. Cousin and Perry Leazer, Plaintiffs, v. NORTH CAROLINA STATE BOARD OF ELECTIONS and J. Brian Scott, Chairman, and Ernest J. House, Hiram H. Ward, L. H. Jones, and Jerry Alvis, Members, Defendants.

James B. Craven, III, Everett, Everett & Creech, Durham, N.C., for plaintiffs.

Robert Morgan, Atty. Gen., James F. Bullock, Deputy Atty. Gen., and James L. Blackburn, Staff Atty., Raleigh, N.C., for defendants.

Before WINTER, Circuit Judge, BUTLER, Chief District Judge, and GORDON, District Judge.

WINTER, Circuit Judge:

This is a suit to enjoin the enforcement of Chapter 1039 of the North Carolina Sessions Laws of 1969 which amended N.C.Gen.Stat. § 163-147. Prior to its amendment in 1969, § 163-147 provided that no person shall "loiter about or do any electioneering within the voting place or within 50 feet thereof." (emphasis added.) The 1969 amendment extended the distance to 500 feet in Cumberland, Durham, Franklin, Guilford, Warren and Vance Counties, six of North Carolina's total of one hundred counties. The 1969 amendment is claimed to be unenforceable for failure to comply with § 5 of the Voting Rights Act of 1965, 42 U.S.C.A. § 1973c, and for denial of equal protection of the laws and other rights guaranteed by the Constitution.

The case has been heard by a three-judge court, convened pursuant to § 5 of the Act, on agreed facts and the post-trial submissions described hereafter.

I

Plaintiffs, residents of three of the six counties in question, sue for themselves and others similarly situated. They allege that they desire to electioneer at the polls in each of the six counties by distributing political brochures, leaflets, handbills and cards, and that if they are required to maintain a minimum distance of five hundred feet from the polls, their political effectiveness will be nullified. Defendants, sued in their representative capacities, comprise the North Carolina State Board of Elections, which, by N.C.Gen.Stat. § 163-22, is charged with supervising all elections, making reasonable rules and regulations with respect thereto, and compelling the observance of all election laws by the county boards of elections and other election officers.

The Voting Rights Act of 1965 applies to Cumberland, Franklin, Guilford and Vance Counties; it is inapplicable to Durham and Warren Counties. In the complaint it was alleged that neither the State of North Carolina, nor any political subdivision, has instituted any action with respect to Chapter 1039 in the United States District Court for the District of Columbia, as contemplated by § 5 of the Act, and that Chapter 1039 was not submitted to the Attorney General of the United States in accordance with the provisions of § 5 of the Act. These allegations were both admitted in the answer.

At the trial an affidavit of Mr. Alex K. Brock, the Executive Secretary of the State Board of Elections of North Carolina, was filed over objection, in which Mr. Brock stated that he either personally delivered or caused to be mailed copies of the North Carolina Election Laws in their entirety, both before and after the 1967 and 1969 sessions of the General Assembly of North Carolina, to Mr. Maceo W. Hubbard, Chief of Eastern Section, Civil Rights Division, United States Department of Justice, and Mr. John Doar, Assistant United States Attorney General, and that there has been no disapproval, objection or rejection of any provision of the election laws contained in the General Statutes of North Carolina enacted by the 1965, 1967 or 1969 sessions of the North Carolina General Assembly. Pursuant to leave granted at the trial, counsel for plaintiffs have filed a letter from the United States Department of Justice, written in the name of Jerris Leonard, Assistant Attorney General, Civil Rights Division, by Gerald W. Jones, Chief, Voting & Public Accommodations, to the effect that a search of the files of the Department of Justice "shows no record that changes in Sections 163-147 and 163-116 of the General Statutes of North Carolina were ever submitted pursuant to Section 5 of the Voting Rights Act of 1965."

In response to a request of the court at the trial for corroboration of the statements contained in the affidavit of Mr. Brock, a letter has also been filed by him stating that he wrote no covering letter at the time that he caused to be mailed the election statutes enacted during the 1969 session of the General Assembly of North Carolina to Mr. Hubbard and Mr. Doar, as set forth in the affidavit. Mr. Brock explained that he had experienced unsatisfactory results with previous attempts to correspond with the Department of Justice and as a consequence be personally delivered the documents in Washington. The dates of delivery are unspecified.

II

With respect to the four counties covered by the Act (Cumberland, Franklin, Guilford and Vance), we conclude that Chapter 1039 is unenforceable because of a failure to comply with § 5 of the Act.

Section 5 is sweeping in scope. With regard to jurisdictions subject to the Act, it renders inoperative "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964" (emphasis added) unless it shall have received prior judicial approval by the United States District Court for the District of Columbia or unless it "has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission." In Allen v. Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), the Court considered whether four types of election law changes fell within § 5 of the Act. While the changes considered were dissimilar to that in the case at bar, the Court thoroughly considered the legislative history of the Act, its purpose and its scope. It said:

The Voting Rights Act was aimed to the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race. Moreover, compatible with the decisions of this Court, the Act gives a broad interpretation to the right to vote, recognizing that voting includes "all action necessary to make a vote effective." * * * We are convinced that in passing the Voting Rights Act, Congress intended that state enactments such as those involved in the instant cases be subject to the § 5 approval requirements.
The legislative history on the whole supports the view that Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way. (emphasis added, footnote eliminated)

393 U.S. at 565-566, 89 S.Ct. at 831.

Despite defendants' argument to the contrary, we deem the Act applicable to any change in "standard, practice, or procedure with respect to voting," not just to those which have a discernible racial discriminatory purpose. Whether a change is inconsistent with the basic purpose of the Act to eliminate racial discrimination in voting and against voters is a question to be decided by the procedures prescribed in § 5 of the Act. Until they have been employed, any such change is rendered inoperative. The Virginia bulletin concerning writeins, held inoperative under the Act in Allen v. Board of Elections, supra, is authority for the conclusion, as well as the language from the opinion which we have quoted.

Admittedly, North Carolina changed electioneering practices in the four covered counties in 1969 from what they had been on November 1, 1964. We think this change was a change in "standard, practice, or procedure with respect to voting" within the meaning of § 5. An effective vote, inter alia, is a vote by a qualified voter in accordance with how he intends to vote. An indisputable aspect of American voting procedure is the distribution of sample ballots and other campaign literature on election day at the polling place or a reasonable distance therefrom. This practice tends to educate prospective voters as to the propositions to be voted on and to remind them of the stance of candidates on issues important to the voters. Many voters expect and rely heavily on polling place distributions of sample ballots and campaign literature to assist them in casting their vote. The right to vote certainly includes the right to be educated on the candidates and propositions for which a vote is to be cast. To increase the closest distribution points to the circumference of a circle having a five hundred foot radius rather than the circumference of a circle having a fifty foot radius will result in a greatly increased burden on political parties and render more difficult the distribution of campaign literature to persons converging on the polling place. More importantly, distributions to far fewer voters will be accomplished under the 1969 statute than previously.

It is argued, however, that even if the 1969 amendment constituted a change in "standard, practice, or procedure with respect to voting," the amendment was submitted to the Attorney General and not objected to within sixty days. Under the applicable legal test, we disagree.

As a purely factual matter, the affidavit of Mr. Brock could support a finding that Chapter 1039 was submitted to the Attorney General, although the affidavit is far from convincing in the absence of a specific statement as to the approximate date on which Chapter 1039 was submitted, and, in the absence of a flat statement that Chapter 1039—a purely local measure—was included within Chapter 163 of the General Statutes claimed to be submitted. Conversely, as a purely factual matter, the letter from the Department of Justice could support a...

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7 cases
  • Francis v. State of Md.
    • United States
    • U.S. District Court — District of Maryland
    • September 27, 1978
    ...L.Ed.2d 739 (1969). The classification does not affect directly the right to vote as was true in Clayton v. North Carolina State Board of Elections, 317 F.Supp. 915, 920-21 (E.D.N.C. 1970) (three-judge For these reasons the court concludes that the Maryland juvenile statutes challenged by t......
  • Lake v. State Bd. of Elections of North Carolina
    • United States
    • U.S. District Court — Middle District of North Carolina
    • March 31, 1992
    ...397, 398-99, 9 L.Ed.2d 317 (1963); Weintraub v. Hanrahan, 435 F.2d 461, 463 (7th Cir.1970); see also Clayton v. North Carolina State Bd. of Elections, 317 F.Supp. 915, 919-20 (E.D.N.C.1970). Plaintiffs' § 1983 and state election law claims come under our pendent jurisdiction as substantiall......
  • Mi Familia Vota Educ. Fund v. Detzner
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    • U.S. District Court — Middle District of Florida
    • September 18, 2012
    ...action brought against governor, attorney general, secretary of state, and board of elections); Clayton v. North Carolina Bd. of Elections, 317 F.Supp. 915, 919 (E.D.N.C.1970) (enjoining, in covered counties, an unprecleared state law in a partially covered state in a case filed against sta......
  • Miller v. Daniels, 80 Civ. 7082.
    • United States
    • U.S. District Court — Southern District of New York
    • March 2, 1981
    ...and Beatty v. Esposito, 439 F.Supp. 830, 832 (E.D. N.Y.1977) (requiring such allegations) with Clayton v. North Carolina State Board of Elections, 317 F.Supp. 915, 918 (E.D.N.C.1970) (three-judge court) (not requiring such allegations), this Court need not address the issue, in light of the......
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