State of Alabama v. United States

• Citation: 304 F.2d 583
• Decision Date: 22 June 1962
• Docket Number: No. 19051.,19051.
• Parties: STATE OF ALABAMA et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

304 F.2d 583 (1962)

STATE OF ALABAMA et al., Appellants, v. UNITED STATES of America, Appellee.

No. 19051.

United States Court of Appeals Fifth Circuit.

June 1, 1962.

Dissenting Opinion June 22, 1962.

MacDonald Gallion, Atty. Gen. of Alabama, Willard W. Livingston, Leslie Hall, Gordon Madison, Robert P. Bradley, Asst. Attys. Gen. of Alabama, Montgomery, Ala., for appellants.

Hartwell Davis, U. S. Atty., Montgomery, Ala., John Doar, First Asst. Civil Rights Div., Dept. of Justice, Burke Marshall, Asst. Atty. Gen., Harold H. Greene, David Rubin, D. Robert Owen, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before RIVES, CAMERON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This case presents the question whether, under the Civil Rights Act of 1957,¹ as amended 1960,² in a suit brought by the United States, the District Court may affirmatively order the registration of specified Alabama Negro voters found by the Court to have been discriminatorily denied registration because of their race and color. Subsidiary to this basic question is the further procedural one of whether, assuming power to issue amandatory injunction, the granting of such relief here worked a substantial, and wholly unpredicted change in the nature of the case being tried and the issues to be adjudicated.

After a trial comprising over nine hundred pages of testimony from 53 witnesses plus two huge boxes of documentary exhibits, the District Court found that the State of Alabama,³ through its voting registrars for Macon County, had denied registration to, and hence disenfranchised, Negro applicants because of their color and race. United States v. State of Alabama, M.D.Ala.1961, 192 F. Supp. 677. See also 188 F.Supp. 759, M.D.Ala.1960.

As we point out in greater detail later, Alabama⁴ does not challenge this finding of discrimination. Perhaps even more significant, it does not challenge the decree or any of its numerous and pervasive parts except in one respect. Its whole attack here is centered on the portion of the decree which affirmatively requires that registration certificates be issued to 54 specified Negro applicants. Thus, for the purposes of this case at least, Alabama acquiesces in the correctness of the decree which, after declaring all discriminatory practices unconstitutional and therefore prohibited, proceeds to require Alabama to do these things. Specific notice was first taken of the Tuskegee precinct (Beat 1) where violations were most marked. The decree requires that registration applications be received there on at least two days a month and that the hundreds of Negroes then on the appearance list be processed at the rate of at least six simultaneously. The decree then provides that the Registrars must hold regular voter application days monthly processing, in regular and expeditious order, white and colored applicants in accordance with the appearance list to be maintained without racial discrimination. The Registrars may use racially nondiscriminatory writing tests of not to exceed 50 consecutive words from the Constitution. Registration applicants are to be notified within twenty days of the acceptance or rejection of the application and, where rejected, the exact reasons therefor. An elaborate continuous policing machinery is established. This is done by requiring a monthly report to the Court of the dates and places of holding voter registration, the name, race and date of every application received, the action taken by the Registrars, and the date the certificate of registration was mailed or notification of rejection sent. A copy of every notification of rejection is to accompany this monthly report. The decree also prescribes that voting records should be open to examination by agents of the United States. It then requires a monthly report by the United States Attorney covering much of the data called for in the report from the State.

It is therefore evident that the District Court thought it encumbent that the Federal Court, in many and varied ways, engage in a most detailed supervision of the day-to-day operation of voter registration. Moreover, neither the power to do so, nor the propriety of its exertion, is here challenged. This is itself a circumstance of some importance. In so stating, we mean no criticism of the State for its not urging objection here. We are the first to recognize that for tactical or strategic reasons, the State may have concluded that fire should be concentrated on the one target. At the same time the object of that attack — the mandatory affirmative order to register — is part and parcel of an intricate judicially constructed machinery to assure genuine, continuous nondiscrimination. That such far-reaching steps were needed imparts color and similar necessity to feature under attack.

For similar reasons, the facts, though now undisputed and unchallenged, warrant a brief summary. For they, too, will illumine the specific order on which the State levels its whole barrage. As with the terms of the order, we must take pains to make clear that no criticism of the State is intended for not directly challenging the fact findings. Courts do, and should, welcome the forthright and sharply defined submission of serious legal questions of the kind here posed without encumbering the process by factual or collateral disputes no matter how earnestly held. But the State's willingness to acquiesce in the District Court's findings does not make them any less facts. Nor does it conceal or shield them from scrutiny insofar as their very detail may reflect light and meaning and necessity on the particular weapon fashioned by the Judge to meet the challenge of such facts. As neat and comfortable as it might be to view microscopically the State's contention as a sterile question of law, neither the judicial process nor the meaning and purpose of the Civil Rights Acts as a means of effectuating the guarantees of the Fifteenth Amendment permit it. What the Judge ordered to be done must be measured in terms of what the Judge saw.

The problem has its genesis in racial discrimination. It concerns voters in Macon County, Alabama, the most populous portion of which is Tuskegee. The majority of Negroes in Macon County live and work in Tuskegee, which is the site of Tuskegee Institute and a large Veterans Administration Hospital. Many of these Negroes are associated with one of these institutions, and a large majority of them have college or high school educations. Of course Tuskegee is no stranger to governmentally directed racial discrimination. Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. That effort — perhaps more massive and frontal — if successful would disenfranchise those few who had won the struggle of registration. Here we deal with those who wish to join that small band.

In the problem of racial discrimination, statistics often tell much, and Courts listen.⁵ Here they are spectacular. With approximately 17% of the Macon County population being white, the balance, 83%, being Negro, less than 10% of the Negroes of voting age are registered while nearly 100% of the white citizens are.⁶

The evidentiary details recited by both colored and white witnesses made it doubly clear that these statistics were not distorted. They demonstrate also that, for at least this time, these figures are reliable in their major implication that such disparity could not exist by chance alone, that there had to be causes for this result, and that a principal cause was conscious racial discrimination by those entrusted with the duty of impartial administration of law.

Registration is a prerequisite to voting in Alabama. Registration is permanent and re-registration is not required. Registration is by a Board of Registrars composed of three members appointed pursuant to state law. The qualifications of voters is set forth in the Alabama Constitution and implementing statutes.⁷ In addition to the usual requirements of age, citizenship, residence, the applicant must fill out a lengthy questionnaire and demonstrate that he can read and write any Article of the United States Constitution. It is this machinery of administration which became the engine of discrimination.

What was done inevitably was measured by the District Court against what was undone. In that respect the most effective way to avoid certifying Negroes as qualified voters was to have no facilities by which the registration could take place. This, while having the nominal virtue of excluding white and Negro alike, did not work that way in view of the saturated registration of nearly all white adults, but only 10% of the Negroes. This situation prevailed for much of the recent past.⁸

And what was done likewise had to be measured against the manner in which it was done. The whole process was infected by an unsophisticated, patent, double standard. Here the obvious preferment of white applicants over Negroes in the physical routine handling of the procedure was more than an extension of social habits and customs of long standing. Here it effectively denied registration because it denied the opportunity to register.

The evidence was replete with instances in which a number of Negroes were the first to arrive at the place of registration. The Board, however, had white applicants arriving later sign the waiting list ahead of the position of the Negroes.⁹

Standing alone, and as irritating as that might be, this might sound quite trivial. But this was but a part of a pattern by which, with an occasional deference toward apparent equality, the grossest sort of inequality was being practiced. For in the critical stages of 1960, this tied into the deliberate slowdown. Again, this was done with all of the window dressing of solemn, painstaking, deliberate consideration of a matter having the importance of voting.

Presumably because of intensified interest in securing voter equality, there was a great upsurge in...