Decision Date24 November 1970
Docket NumberNo. 27935.,27935.
PartiesThomas E. GILMORE et al., Plaintiffs-Appellants, v. The GREENE COUNTY DEMOCRATIC PARTY EXECUTIVE COMMITTEE et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Oscar W. Adams, Jr., Birmingham, Ala., Norman C. Amaker, Jack Greenberg, James N. Finney, Fred L. Wallace, New York City, for plaintiffs-appellants.

Perry Hubbard, Hubbard & Waldrop, Tuscaloosa, Ala., for defendants-appellees.

Before TUTTLE, DYER and CLARK, Circuit Judge:

TUTTLE, Circuit Judge:

This is an appeal from the United States District Court for the Northern District of Alabama which denied relief to the plaintiffs-appellants, who claimed that the denial to black illiterates of the right to use sample ballots at the polling places in a democratic primary election was a violation of the 1965 Voting Rights Act; that the failure to purge the voting list resulted in there being more white registered voters eligible to vote than there were white residents of the county; and that the method adopted by the voting officials denied to the illiterate black voters the right to a secret ballot, guaranteed by the State of Alabama, and assertedly guaranteed as a constitutional right.

The election involved here has long since passed. It was the county primary election for 1966, held soon after the enactment of the Voting Rights Act of 1965. It was an election approached with much interest by the black voters because of the fact that for the first time illiterates had been registered and thus were permitted to vote, and black residents of Greene County out-numbered white residents by approximately 81% to 19%. The failure of the black voters to carry the election for all of the black candidates seeking office naturally caused considerable disappointment and resulted in this litigation.

It is interesting to note that the first named plaintiff, Thomas Gilmore, has now been elected sheriff of the county — the office to which he aspired in 1966, and that other black residents, possibly among the other plaintiffs, have now been elected probate judge, coroner, and to the other county offices. To some extent, therefore, much of what the plaintiffs originally sought has now become moot. However, since the defendant county officials frankly stated in oral argument that they were equally interested with the plaintiffs in learning whether the procedures proven to have been followed violated the plaintiffs' constitutional rights, and since the complaint seeks a declaratory judgment, we proceed to consider the still open issues in the case.

The trial court granted approximately a year during which the plaintiffs were given ample opportunity to prove whatever facts bore upon the improper handling of the election procedures in Greene County. The record supports the trial court's findings that there was no evidence showing that any white person was permitted to vote who was not an actual registered voter or that more white persons voted than were properly registered.

The principal complaint that has survived the election deals with the conduct of the election under the direction of Judge J. Dennis Herndon, the county probate judge (now, in the 1970 election, to be succeeded by a black official), and particularly his refusal to let illiterate voters take sample ballots into the booth, rather than requiring them to direct poll officials the manner in which they wished their ballots to be marked. There is no proof that Judge Herndon treated black illiterates any differently than he treated white illiterates. It is undisputed that all illiterates were denied the right to take marked ballots or other lists with them to aid in their voting. Literate voters were not denied this privilege.

Appellants first argue that the refusal to permit black illiterates to use sample ballots was a violation of Section 5 of the 1965 Voting Rights Act, 42 U.S.C. § 1973c, because this was a procedure required to be used by an illiterate in casting his vote which was not in effect as of the effective date of the Voting Rights Act. Appellants argue this on the theory that illiterates were not permitted to vote at all prior to the Voting Rights Act, and any procedure adopted by Judge Herndon thereafter amounted to a change that required the prior approval of United States Attorney General or the United States District Court for the District of Columbia. The difficulty with this argument is that Alabama statutes expressly recognize the possibility that a "qualified elector" may be "unable to read" and it makes provision under such circumstances for him to be given assistance by two inspectors. See Title 17, Code of Alabama, Section 359. There is no proof that the denial to illiterates of the right to take sample ballots into the booth was any different prior to the adoption of the Voting Rights Act and the procedure followed by Judge Herndon. Thus, we agree with the appellees that the procedures were not such as were required by the Voting Rights Act to be approved by the Attorney General or the United States Court for the District of Columbia.

The actions of the managers of the several polling places, acting under the instructions of Judge Herndon, were, in some respects, unjustified under the Alabama Statute.1 The improper conduct referred to is the refusal of the managers at the polls to permit an illiterate to take a "sample ballot," whether it be written in the form of a ballot or merely a slip of paper with names on it, into the polling booth to assist him in casting his ballot. It appears from the record that some of the newly registered black voters wished to hand a list to the two persons designated to have their ballot marked in accordance with the written list. Instead of permitting this to be done, the practice was uniformly followed that one of the "assistants" read the names of the candidates and the office and the other entered the mark opposite the name which the voter said he wished to vote for. There was some contention made and some testimony to support it, which was not expressly denied, that some read in rapid and unintelligible manner and others that all of the names were read and the voter was required to remember the names and designate them for the marking of the ballot. We need not determine the correctness of this testimony, nor how widespread it may have been, if it occurred at all. There is nothing in the Alabama law which forbids a voter, whether literate or illiterate, to take a memorandum of names with him into the polling place to assist him in the marking of his ballot. Indeed, as is indicated above, it is undisputed that literate voters in Greene County were permitted to do so, but that illiterates were not.

The trial court, in its conclusions of law, seemed to consider that the issue here involved an effort to use something other than "official ballots" for voting. The court said

"The actions of some of the polling officials in denying the use of previously marked cards and sample ballots was proper. The elections in Alabama must be by official ballot only. See Title 17, § 165, which is mandatory," citing Walker v. Junior, 247 Ala. 342, 24 So.2d 431.

This, however, was not the problem raised by the action of the managers at the Greene County primary election.

There was no effort made by anyone to cast a ballot by using a prepared paper. The effort was simply to have the sample ballot used as an aid to cast the vote.

It is difficult to see how a voter, particularly an illiterate person who is casting his first ballot, could better perform the function as he wished than to have given careful consideration to the qualifications of the candidates and the choices he wished to make and then have a friend or other third person, write the list down in accordance with his choice, then take it to the polling place and hand it to the "inspectors" requesting that his ballot be prepared accordingly. Assuming that the "inspectors" carried out their function in accordance with their instructions from the voter, this would not differ from a literate voter making out a memorandum, which, in the case of a long ballot, may be absolutely necessary for even the...

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5 cases
  • Whitfield v. Oliver
    • United States
    • U.S. District Court — Middle District of Alabama
    • August 1, 1975
    ...blacks from the political process have also tainted the primary machinery of political parties. Gilmore v. Greene County Democratic Party Executive Committee, 435 F.2d 487 (CA5, 1970); United States by Clark v. Democratic Executive Committee of Barbour County, Alabama, 288 F. Supp. 943 (M.D......
  • Furey v. Hyland
    • United States
    • U.S. District Court — District of New Jersey
    • June 6, 1975
    ...the Fourteenth Amendment requirement that all persons receive equal protection of the laws. See Gilmore v. Greene County Democratic Party Executive Committee, 435 F.2d 487, 491 (5th Cir. 1970). 10 A person on probation is "in custody" within the meaning of Sections 2241 and 2254. DeRosa v. ......
  • James v. Humphreys County Bd. of Election Com'rs, GC 72-70-K.
    • United States
    • U.S. District Court — Northern District of Mississippi
    • October 4, 1974
    ...379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Jackson v. Godwin, 400 F.2d 529 (5 Cir. 1968); Gilmore v. Greene County Democratic Party Executive Committee, 435 F.2d 487 (5 Cir. 1970). Defendants do not question the efficacy of these settled doctrines, but suggest that the issue ought t......
  • MacGuire v. Amos, Civ. A. No. 3654-N.
    • United States
    • U.S. District Court — Middle District of Alabama
    • May 13, 1972
    ...5. The court held that the Act applied; the rationale for that decision is persuasive.3 See also Gilmore v. Greene County Democratic Party Executive Committee, 5 Cir. 1970, 435 F.2d 487. (In a case involving political party action, the Fifth Circuit Court of Appeals found no violation of th......
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