O'Neal v. Simpson, 50068

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: SUGG; PATTERSON; BOWLING; INZER
• Citation: 350 So.2d 998
• Parties: Harl O'NEAL v. Mrs. T. C. SIMPSON.
• Docket Number: No. 50068,50068
• Decision Date: 31 August 1977

Page 998

350 So.2d 998 Harl O'NEAL
v.
Mrs. T. C. SIMPSON. No. 50068. Supreme Court of Mississippi. Aug. 31, 1977.
Rehearing Denied Nov. 2, 1977.

Page 999

Dulaney & Dulaney, J. W. Dulaney, Jr., William P. Dulaney, Tunica, for appellant.

Sullivan, Smith, Hunt & Vickery, David R. Hunt, Clarksdale, for appellee.

EN BANC.

SUGG, Justice, for the Court:

This appeal arises from a contest of the general election of November 4, 1975 filed by Harl O'Neal, the Democratic nominee for the office of Supervisor, District No. 1, Quitman County. Mrs. T. C. Simpson qualified as an independent candidate in the general election following the defeat of her husband, who was the incumbent supervisor, by O'Neal in the Democratic primary. Mrs. Simpson was declared the winner by a margin of twelve (12) votes out of nine hundred forty-two (942) votes cast and was certified to the Secretary of State by the Quitman County Election Commission as such. She has occupied the office of Supervisor since January, 1976.

Appellant filed his petition under Mississippi Code Annotated section 23-5-187 (1972). The first trial resulted in a mistrial and in the second trial the jury found that Mrs. Simpson received the greater number of legal ballots cast.

On the day before the general election of November 4, 1975, Mrs. Simpson gave written authority to Mrs. Elizabeth Daniels and Mrs. Fannie Smith (hereinafter called poll watchers) to act on her behalf at the Darling voting precinct. Mrs. Simpson testified that, although she appointed poll watchers, she had no reason to distrust the election officials, managers, clerks or bailiffs and admitted that she appointed the poll watchers to support her candidacy. The poll watchers did not challenge a single voter throughout the voting.

The poll watchers assisted approximately one hundred persons out of three hundred fifth nine votes cast at the Darling precinct. At the beginning of the voting a manager

Page 1000

of the election noticed one of the poll watchers inside a voting booth with a voter. The manager asked the poll watcher to step outside the booth while the managers ascertained whether the assistance was proper. After a conference the managers concluded that the assistance was proper. One of the managers at the Darling precinct testified:

The way the rule was interpreted to us, that anyone that wanted help could ask anyone to go to the booth and help them vote. And that was the way the thing was interpreted to us and that's the way it went all day.

The poll watchers were permitted to assist voters throughout the day and did not at any time disobey the managers and conducted themselves in an orderly fashion.

The managers of the election did not make any effort to determine if voters were entitled to assistance under applicable Mississippi statutes. To the contrary the managers were under the belief that any person who desired assistance could receive it. With the exception of one or two voters who were blind or disabled and the voters who announced that they were unable to read, most of the voters who received assistance by the poll watchers were permitted to have assistance without declaring to the managers that they were blind, physically disabled or unable to read. The record shows that twenty-one voters were apparently unable to write because their names were written by a clerk who had the voters place an X after their names.

Out of three hundred fifty nine votes cast in the Darling precinct, Mrs. Simpson received two hundred thirty-three and O'Neal received one hundred twenty-six. The vote in the entire supervisor's district was as follows:

 Sledge Sledge
                 A to J K to Z Darling Total
                 ------ ------ ------- -----
                Harl O'Neal 166 173 126 465
                Mrs. T. C. Simpson 124 120 233 477
                

PART I

The first question is, was the attempted repeal of Section 3273 Mississippi Code of 1942 Annotated (Supp.1956) effective?

The statutes in Mississippi which provide for assistance to voters are Sections 23-5-157 and 23-7-39 Mississippi Code of 1972 Annotated (1972) and Section 3273 Mississippi Code of 1942 Annotated (Supp.1956). Section 23-7-39 applies only when voting machines are used so the two sections which apply here are as follows:

Section 23-5-157:

Any voter who declares to the managers of the election that, by reason of blindness or other physical disability, he is unable to mark his ballot, and whose declaration is not palpably untrue, shall have the assistance of one of the managers or other person of his own selection, in the marking thereof; but such person giving such assistance shall not give information in regard to the same.

Section 3273:

A voter who declares to the managers of the election that by reason of inability to read he is unable to mark his ballot, if the same be true, shall, upon request, have the assistance of a manager in the marking thereof; and the managers shall designate one of their number for the purpose, who shall note on the back of the ballot that it was marked by his assistance; but he shall not otherwise give information in regard to the same.

The legislature, by Miss. Gen. Laws Ch. 19 (Extraordinary Session 1965), attempted to repeal Section 3273 Mississippi Code of 1942 Annotated (Supp.1956). Section 5 of the Voting Rights Act enacted by Congress in 1965 (42 U.S.C.A. § 1973c (1965)), provides that no political subdivision subject to the Act may put into effect any voting law or election practice different from that in effect on November 1, 1964 without either: (1) submitting the proposed change to the Attorney General of the United States for his approval; or (2) instituting an action in the United States District Court for the District of Columbia for a declaratory judgment that the change sought to be put into effect does not effectively deny or abridge the right to vote on account of color. The United States Supreme Court has held the Voting Rights Act constitutional and that any change in election procedure or practice,

Page 1001

no matter how insignificant, must be submitted for approval as required by the Act before the change becomes effective. Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971); Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966).

The Attorney General of Mississippi submitted the proposed repeal of Section 3273 Mississippi Code of 1942 Annotated (Supp.1956) to the Attorney General of the United States who disapproved the repeal of the section. The State of Mississippi has neither sought a reconsideration from the United States Attorney General nor sought a declaratory judgment from the District Court of the District of Columbia.

In two recent cases, Todd v. Smith, 331 So.2d 920 (Miss.1976) and Jones v. Moorman, 327 So.2d 298 (Miss.1976), we held that the attempted repeal of a statute was not effective under Section 5 of the Voting Rights Act unless approved by the Attorney General or unless a declaratory judgment was obtained as provided in the Act. We held that the attempted repeal of Section 3143 Mississippi Code of 1942 Annotated (Supp.1956) was ineffective in view of the Voting Rights Act. Our reasons are clearly set forth in Jones, supra, and need not be repeated in this opinion.

We therefore conclude that the attempted repeal of Section 3273 Mississippi Code of 1942 Annotated (Supp.1956) was ineffective, and the statute remains in full force and effect.

PART II

Having determined that Section 3273 is in effect, our next inquiry is, does this statute violate the Fourteenth Amendment to the United States Constitution?

Under Mississippi statutes three classes of voters are authorized to forego the secrecy of their ballot and to request assistance in casting their ballot. These are the blind, physically handicapped and illiterates. The two statutes governing assistance to voters where voting machines are not used are set forth in full in Part I of this opinion. These statutes were first enacted in 1892 and appear as Sections 3666 and 3667 of the Code of 1892. The first section governs the aid to blind or physically disable voters, the second to illiterate voters. Blind and disabled voters are permitted to have the assistance of one of the managers of the election or other person of the voter's selection, while the statute governing illiterates limits the assistance to a manager of the election and further provides that the ballot cast by an illiterate shall have marked on its back that it was marked by assistance. In all other respects the statutes are the same and both statutes require the voter requesting assistance to declare to the managers of the election the reason such voter is entitled to assistance.

When these statutes were originally enacted in 1892, we doubt that the legislature gave any consideration to whether limiting assistance to illiterate voters to a greater degree than for blind and disabled voters violated the Fourteenth Amendment to the United States Constitution. At that time the Fourteenth Amendment had not been applied to the states in as many areas as it now applies as a result of decisions by the United States Supreme Court within the last two decades.

The United States Supreme Court has held in a number of cases that states have broad powers to determine conditions under which the right of suffrage may be exercised. In Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) the Court enunciated this principle in the following language:

Indeed, '(t)he States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised.' Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072. Compare United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274. 'In other words, the privilege to vote...