Toney v. White

• Citation: 476 F.2d 203
• Decision Date: 01 June 1973
• Docket Number: No. 72-3307.,72-3307.
• Parties: Albert C. TONEY et al., Plaintiffs-Appellees, v. N. A. WHITE et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Myrtis BISHOP et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

476 F.2d 203 (1973)

Albert C. TONEY et al., Plaintiffs-Appellees, v. N. A. WHITE et al., Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Myrtis BISHOP et al., Defendants-Appellants.

No. 72-3307.

United States Court of Appeals, Fifth Circuit.

March 19, 1973.

Rehearing Granted June 1, 1973.

John T. Seale, Asst. Dist. Atty., Tallulah, La., for defendants-appellants.

William J. Guste, Jr., Atty. Gen. of La., Baton Rouge, La., George Strichler, New Orleans, La., Donald E. Walter, U. S. Atty., Shreveport, La., M. Karl Shurtliff, Gerald W. Jones, Attys., Dept. of Justice, Washington, D. C., Thomas Clark, Dist. Atty., St. Joseph, La., for plaintiffs-appellees.

Before ALDRICH,^* SIMPSON and CLARK, Circuit Judges.

CLARK, Circuit Judge:

On April 4, 1970, a Democratic primary for Mayor, Village Marshall, Board of Aldermen, and Democratic Executive Committee was conducted in Tallulah, Louisiana. Black candidates opposed whites for each of the positions. With the exception of Town Marshall and one of the three positions on the Democratic Executive Committee, white candidates won by margins ranging from 24 to 140 votes. On May 4, 1970, the defeated black candidates and their supporters filed suit against the incumbent Democratic Executive Committee to set aside the results of the April 4 primary for the offices of Mayor, Board of Aldermen, and all Democratic Executive Committee posts on the ground that the rights of the plaintiffs and of all black voters in the municipality secured by the Fifteenth Amendment and the Voting Rights Acts had been violated by a selective and racially discriminatory purge of the roll of registered voters immediately prior to the primary. The United States subsequently filed a similar action against Myrtis Bishop, the parish registrar of voters, which was consolidated with the former case for trial.

The district court found that the acts and omissions of the registrar constituted a violation of the Fifteenth Amendment and the Voting Rights Acts, enjoined the defendants from engaging in further discriminatory practices, voided the primary election results, and ordered that a new primary election be held. Toney v. White, 348 F.Supp. 188, 195-196 (W.D.La.1972). We affirm as to the prospective injunctive relief but reverse that portion of the judgment which voided the election and ordered the primary races to be rerun.

THE FACTS

For over a decade Madison Parish, Louisiana, and particularly the Village of Tallulah, the parish seat, have been the center of intense voter rights activity.¹ On three previous occasions the United States District Court has enjoined parish election officials from engaging in discriminatory conduct against Negro voters. In United States v. Ward, 222 F.Supp. 617 (W.D.La.1963) rev'd on other grounds, 349 F.2d 795 (5th Cir.) modified on rehearing, 352 F.2d 329 (5th Cir. 1965), the court permanently enjoined parish officials from discriminatory practices in regard to voter registration. In Brown v. Post, 279 F.Supp. 60 (W.D.La.1968), the court found racial discrimination in the distribution of absentee ballots for a school board election. In United States v. Post, 297 F.Supp. 46 (W.D.La.1969), the court held that erroneous instructions on voting machines had the effect of denying Negro voters an effective ballot in a special election for Town Marshall. In the latter two cases, as in the present action, the district court required new elections to be held. Neither of these decisions was appealed.

The present case involves an allegedly selective and discriminatory purge of registered voters from the parish voting rolls in the month preceding the 1970 Democratic primary. The facts as found by the district court are as follows:

(1) The purge of 4-year non-voters. On March 5, 1970, the date on which the voting rolls were closed to further registration prior to the April 4 Democratic primary, the registrar published in a local newspaper a list of 141 voters from the parish whose names were to be removed from the rolls for failure to vote in any election during the preceding four years.² This notice was defective under Louisiana law because it failed to state that those listed had the right to appear at the registrar's office within three days of the second newspaper publication to prove their right to remain registered.³ The 141 voter total on the purge list was comprised of 130 Negroes and 11 whites. Of those eventually removed from the voting rolls, a total of 68 were registered Democrats living in the Village of Tallulah and thus eligible to vote in the April 4 primary. Among those 68 Democrats, 63 were Negroes and 5 were whites.⁴ In March 1970, 31 additional persons, 18 blacks and 13 whites, were listed on the voting rolls of Madison Parish who had not voted in the prior four year period, but were not included in the list published by Registrar Bishop on March 5.

(2) The purge for unreported change of address: In March 1970 Registrar Bishop also notified 29 Negro voters that their right to remain registered was challenged for failure to report that they had changed their address.⁵ Of this group, 24 appeared at the registrar's office and were reinstated on the voting rolls, but 12 of this number were removed from the Tallulah municipal registration rolls and placed on the general Madison Parish rolls.⁶ After other adjustments, the district court found that 19 black voters originally registered as Democrats in the Village of Tallulah were removed from the rolls within a month prior to the primary.

During this period the Registrar did not challenge any white voters for unreported change of address. At trial plaintiffs produced a list of 141 white registrants who they asserted should have been challenged for failure to report changes of address. Of these unchallenged whites, 72 voted in the April 4 primary. After the primary contest, the Registrar challenged 75 white voters from this list of 141 at the request of black political leaders and 72 of those challenged were removed from the municipal voting rolls.

(3) Failure to challenge absentee voters: La.Rev.Stat. § 18:1080 requires parish registrars to canvass voter rolls for persons who have only voted by absentee ballot for the previous two-year period and require each such voter to substantiate his right to continue to vote in the locality.⁷ Although the statute anticipates that challenges under § 18:1080 are to be conducted simultaneously with challenges under § 18:240 and § 18:131, Mrs. Bishop did not challenge any voter to explain continual absentee voting. The parish voting records contained 62 Tallulah registrants, 61 whites and 1 oriental, who had voted exclusively by absentee ballot for a period of two years preceding March 1970. On the other hand, the record showed no black registrant who had voted exclusively absentee during the same period.⁸

In summary, the district court found that immediately prior to the April 4, 1970 Democratic primary Registrar Bishop purged from the voter rolls a group of predominately black registrants and, at the same time, failed to challenge similarly situated white voters. The court further found that the procedures followed in cancelling the names of the predominately black group were technically deficient under Louisiana law because of failure to give proper notice to the challenged registrants. The court concluded that the number of voters affected by this application of the Louisiana voting statutes was sufficient to have affected the results of the municipal primary. However, the court found no "calculated racially motivated purpose for the acts and omissions of the Registrar."

INDISPENSABLE PARTIES

For the first time in this litigation appellants raise on this appeal the contention that the candidates nominated in the primaries are indispensable parties under Fed.R.Civ.P. 19 and that this party deficit requires dismissal or remand. This point is without merit. Determinations of indispensability are bottomed on equitable principles. Provident Tradesmen Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968); Schutten v. Shell Oil Company, 421 F.2d 869 (5th Cir. 1970). These candidates have known of the pendency of this suit practically since its inception, their interests have been fully represented and protected, and their absence will in no way affect the grant of complete relief.

CONSTITUTIONAL AND STATUTORY VIOLATIONS

The Fifteenth Amendment to the United States Constitution prohibits states from denying or abridging the right of citizens to vote on account of race. The Civil Rights Act of 1870, as amended, 42 U.S.C. § 1971(a) forbids any distinctions based on race in the voting process. And Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, prohibits imposition of any practice or procedure which has the effect of denying or abridging the right of any citizen to vote on account of race or color.

Selective application of laws governing the removal of registrants from voter rolls is a violation of these constitutional and statutory provisions where the effect of such purging is to remove a group which is predominately of one race while leaving unchallenged similarly situated members of another race, notwithstanding the fact that the registration of those challenged could have been legally cancelled under a nondiscriminatory application of the registration statute. United States v. McElveen, 180 F.Supp. 10 (E.D.La.) aff'd sub nom. United States v. Thomas, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535 (1960). In McElveen the voter registrar of Washington Parish, Louisiana, challenged and subsequently cancelled the registration of 1377 black voters and ten white voters. The district court there found that defects and deficiencies similar to those upon which challenges to black registrants were based could have been found in the registration records of over 50% of the white voters in the parish. This evidence was...