James v. Humphreys County Bd. of Election Com'rs, GC 72-70-K.

• Decision Date: 04 October 1974
• Docket Number: No. GC 72-70-K.,GC 72-70-K.
• Parties: Kermit JAMES et al., Plaintiffs, v. HUMPHREYS COUNTY BOARD OF ELECTION COMMISSIONERS et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

384 F. Supp. 114

Kermit JAMES et al., Plaintiffs, v. HUMPHREYS COUNTY BOARD OF ELECTION COMMISSIONERS et al., Defendants.

No. GC 72-70-K.

United States District Court, N. D. Mississippi, Greenville Division.

October 4, 1974.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Conrad K. Harper, Joseph F. Dennin, New York City, Frank R. Parker, Jackson, Miss., for plaintiffs.

Richard M. Edmonson, Jackson, Miss., James T. Bridges, Belzoni, Miss., Thomas E. Childs, Jr., Asst. Atty Gen, Jackson, Miss., for defendants.

MEMORANDUM OPINION

KEADY, Chief Judge.

On July 7, 1972, six black citizens of Humphreys County, Mississippi, filed this suit individually and as a class action on behalf of all black qualified and registered voters of the county and all black qualified candidates offering for county and district elective offices, seeking to set aside the general election held November 2, 1971, secure a new election, and obtain equitable relief for future elections.¹ By their second amended complaint filed November 2, 1973, plaintiffs charged that various acts of pervasive racial discrimination by county election officials in the manner of conducting the election invalidated the entire electoral process. Federal jurisdiction is invoked under several acts of Congress and constitutional provisions cited below.² Joined as defendants were the members of the county board of election commissioners, the circuit clerk and registrar, various other county officers, candidates and election officials, and also the State's Governor, Secretary of State and Attorney General, sued as members of the State Board of Election Commissioners.³

The general election held November 2, 1971, in Humphreys County was first drawn into litigation in this court by an action filed December 28, 1971, styled United States of America v. Humphreys County Board of Election Commissioners, et al., No. GC 71-141-K. That action challenged the decision of some county election officials to reject entirely a total of 714 ballots where the voters' choice was clear in one or more contests on the ballot, yet unclear in one or more other contests. The decision of the election managers to reject these ballots was adopted by the county election commissioners, who accordingly certified the results of the contested races to the state election officials. After the suit by the government, however, the county election commissioners, on June 8, 1972, did count the rejected ballots for all contests where the voters' choice was clear and certified the new results to the state officials. The revised totals did not affect the outcome of any race. All blacks appearing on the ballot as independent candidates lost to white nominees of the Mississippi Democratic Party.

Thereafter, on December 28, 1973, a consent order was entered in GC 71-141-K enjoining the county election officials to count properly the ballots cast in all future elections. The consent order mandated the counting of votes cast for each office where the voter's choice is clear, even though the ballot is unclearly marked for other offices. The court retained jurisdiction to review compliance with its order and to issue directions appropriate to the enforcement of the judgment. Prior to the entry of this order, the court had consolidated the cases brought by the government and the private plaintiffs for a single hearing and disposition. Upon entry of the consent order, however, the United States withdrew from further participation in the proceedings, and the case went to full evidentiary hearing on the issues of racial discrimination broadly raised by the private plaintiffs.

The evidentiary hearing was extensive, and both sides offered voluminous and burdensome evidence consisting of live testimony from various witnesses, many depositions, reports and other documentary material. After considering this mass of sharply conflicting evidence and briefs of counsel, the court now makes a merits determination of the case, incorporating herein special findings of fact and conclusions of law as required by Rule 52, F.R.Civ.P.

An understanding of this case may be facilitated by reciting, at the outset, the claims of election irregularity made by the plaintiffs, to wit:

1. Election officials failed to count 714 ballots properly, as established by the government in its related action.

2. Poll watchers for blacks running as independent candidates were unlawfully excluded from certain polling places for various periods of time during the day of election.

3. Poll watchers for certain black candidates, at several election precincts, were either assaulted, physically abused, or threatened with bodily harm.

4. Illiterate black voters who cast ballots were either refused assistance in voting by election officials, or received misleading assistance; they also were denied the right to choose their own assistant, a privilege granted to disabled or blind voters.

5. The public, certain black candidates, and their poll watchers were excluded from the count of the ballots after the election.

6. The polling places at some boxes were established in buildings which were under the control of white incumbent candidates or which had an anti-Negro reputation, thus unfairly affecting the free expression of black voters.

Defendants deny the factual and legal bases of each claim, other than the first stated ground, which they contend has been adequately disposed of in the government's suit.

BACKGROUND FACTS

(a) GENERAL.

According to the 1970 census, Humphreys County has a population of 14,601, a majority of whom are black (9,512 blacks, 5,089 whites). The county has a history of opposing voting rights for black citizens, and prior to the adoption of the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq., very few, if any, blacks were registered to vote. Humphreys County was designated as an examiner county on September 24, 1965, and federal observers have been sent to the county on at least three prior occasions: November 1966, August 1967 and June 1968. By March 31, 1971, 2,083 of the non-white voting age population of 4,294 had been registered to vote, while 2,824 of the white voting age population of 3,001 were registered voters. A majority of the newly registered black voters were placed on the rolls by federal examiners, and not by G. H. Hood, the county registrar, who was unenthusiastic about registering black voters and generally uncooperative with the federal officials. Voter registration drives among both blacks and whites continued throughout the spring and summer months. As of November 2 the total registered voters, by precincts, were as follows:

                Precinct Number
                    Belzoni                 3638
                    Four-Mile                145
                    Gooden Lake              288
                    Isola                    999
                    Silver City              686
                    Lake City                130
                    Putnam                   413
                    Midnight                 271
                    Louise                   936
                

Although records of registration figures by race at the time of the general election were not kept, and hence such data is unascertainable, it is likely that some precincts, if not the county as a whole, had a majority of black registered voters.

Black citizens made various allegations to the Department of Justice of racial discrimination by Hood and by the election officials who conducted the August 1971 Democratic primaries, in which black voters, many of whom were illiterate, had participated. These charges were investigated by Peter Mear, a Department of Justice attorney, who visited the county throughout the July-November period. After checking reports on the August 3rd primary, notably a complaint by a white candidate concerning the kind of assistance extended to illiterate voters, Mear recommended to his superiors that federal observers be assigned to the Silver City precinct at the August 24th run-off primary. Six federal observers were assigned to this single precinct; the primary election went off smoothly and without any problems.

In the course of his continuing investigation, Mear, in October, was informed that substantially the same election officials who had conducted previous primary and general elections would serve at the forthcoming general election. Mear recommended to the Department of Justice that on election day federal observers be assigned to the polling places of each precinct throughout the county. In making this recommendation, Mear was cognizant of certain existing circumstances, namely: (1) Eleven black candidates for various county and district offices had legally qualified to run as independents and their names would appear on the ballot principally in contest with white nominees of the Democratic Party; this was in sharp contrast to the August primary ballot which had contained no black candidates; (2) blacks for the first time in the county's history had registered in substantial numbers, and probably had an edge over whites in registration; (3) four precincts (Four-Mile, Gooden Lake, Isola and Putnam) with admittedly heavy black majorities, never had in past elections, nor would they have on November 2nd, black election officials on duty; and (4) many blacks were fearful of interference by white election officials with the exercise of free choice by black voters, especiallly since illiterate blacks, many voting for the first time, would require assistance in marking their ballot.

(b) ASSIGNMENT OF FEDERAL OBSERVERS.

The Department of Justice acted favorably upon Mear's recommendation and decided to assign thirty federal observers throughout the county on election day. These observers, drawn from various federal agencies, had extensive experience in observing prior elections in Mississippi and elsewhere. Before election day, the assigned observers received oral or written instructions from their leaders as well as Department of Justice officials as to the operation and effect of the state and federal election laws. The observers...