Toney v. White

• Decision Date: 03 December 1973
• Docket Number: No. 72-3307.,72-3307.
• Citation: 488 F.2d 310
• Court: U.S. Court of Appeals — Fifth Circuit
• 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.

488 F.2d 310 (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.

December 3, 1973.

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

George M. Strickler, Jr., Asst. Atty. Gen., New Orleans, La., for Toney and others.

J. Stanley Pottinger, Civil Rights Div., Dept. of Justice, David L. Norman, Asst. Atty. Gen., Civil Rights Div., Dept. of Justice, M. Karl Shurtliff, Gerald W. Jones, Attys., Civil Rights Div., Dept. of Justice, Washington, D. C., Donald E. Walter, U. S. Atty., Shreveport, La., for U. S.

Lloyd N. Cutler, David S. Tatel, Washington, D. C., Herman Wilson, Jackson, Miss., for amicus curiae — Lawyers Committee for Civil Rights, etc.

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

BELL, Circuit Judge:

This appeal arises out of suits filed to set aside the results of a Democratic primary election on the basis of discriminatory conduct against black voters by the Voter Registrar.¹ The primary was conducted on April 4, 1970 in Tallulah, Louisiana, for Mayor, Town Marshall, Members of the Board of Aldermen, and Members of the Democratic Executive Committee. The black candidate for the office of Town Marshall was successful, as was one of the black candidates for the three positions on the Democratic Executive Committee. All other races were won by whites with margins ranging from 24 to 140 votes.

The discrimination occurred within a thirty day period immediately prior to the election. On September 13, 1972, the district court enjoined defendants from engaging in further discriminatory practices, voided the primary election results, except as to the office of Town Marshall, and ordered that a new primary election be held with the voters limited to those persons eligible to vote in the 1970 primary. Toney v. White, W.D.La., 1972, 348 F.Supp. 188.

A panel of this court affirmed on March 19, 1973 as to the prospective injunctive relief but reversed that portion of the judgment which voided the election and ordered the primary races to be rerun. Toney v. White, 5 Cir., 1973, 476 F.2d 203. On June 1, 1973 the court, on motion of plaintiffs, determined to rehear the matter en banc. It was heard on October 17, 1973, and, after due consideration, we vacate that portion of the panel decision which reversed the district court. The result is that the district court judgment voiding the primary election as to certain races and ordering those primary races to be rerun is reinstated but with the modification, due to the passage of time, that the next regular primary election, which under the Louisiana statutes will be held in March, 1974, be substituted for the special election ordered by the district court.

The panel decision rests on the two-pronged approach that (1) the discrimination in question was not "gross, spectacular and completely indefensible", and (2) that it did not appear that no effective judicial remedy was available to plaintiffs prior to the holding of the election, 476 F.2d at 209, citing Bell v. Southwell, 5 Cir., 1967, 376 F.2d 659, 664.

Reference is made to the prior opinions, 348 F.Supp. 188, and 476 F.2d 203, for a full statement of the facts. It is sufficient for our purposes to set out the operative facts. The racial discrimination in issue consisted of the Registrar purging the voter rolls in a manner directed at black voters but not at white voters. This discrimination was compounded by the use of purging procedures which were not consistent with Louisiana law from the standpoint of notice and opportunity of the registrant to be reinstated. In addition, the list of those voting by absentee ballot, mainly white voters, was not purged as required by Louisiana law. In connection with this latter fact, the district court made the well supported finding that the results of the election could well have depended on the absentee vote and thus on the failure to purge this list.

The pertinent findings and conclusions of the district court are as follows:

(Findings of Fact)

"22. We find that the record does not reveal that the acts of commission and omission of the Registrar were conducted for the specific purpose of diminishing the number and efficacy of black votes and inflating the number of white votes."

(Conclusions of Law)

"8. Notwithstanding the fact that the record does not reveal any calculated racially motivated purpose for the acts and omissions of the Registrar, the acts and practices of this defendant constitute an unlawful deprivation of the right of qualified Negro voters to vote regardless of race or color as provided by the Fifteenth Amendment and the Voting Rights Act of 1965, especially in light of the State Attorney General\'s opinion as to the timing of these acts and practices."

"10. Where, as here, there has been a history of racial discrimination in the voting process, and a public official applies or neglects to apply the laws pertaining to the purging of voter rolls contrary to the spirit of Louisiana law, the result of which is that a substantial number of Negroes are purged and few whites are purged, when by proper application of the law fewer Negroes would have been purged and more whites would have been purged, we conclude here that Negroes have been discriminated against in the administration of the voting process in violation of the Fifteenth Amendment and of Sections 2 and 11(a) of the Voting Rights Act of 1965 and 42 U.S.C. § 1971(a)."

It was the view of the district court that the remedy of voiding an election was appropriate regardless of the good faith intentions of the election officials once discrimination in fact was proven in the administration of the election process. The election was thereupon voided except as to the office of Town Marshall.

There are three approaches which would lead to affirming the district court's action in voiding the election. One would be to approve the view of the court that a new election was required, ipso facto, regardless of good faith on the part of the Voter Registrar, once the proof established, as it did, that the voting process was infected with racial discrimination. We pretermit examining this broad rule which does not appear to have a nexus to the substantiality of the discrimination or its effect on the results of the election.

Another would be to examine the finding and conclusion of the district court that the acts of commission and omission of the Voter Registrar were not racially motivated.² Finding of Fact 22 and Conclusion of Law 8, supra. Such an examination would be for the purpose of determining the validity of the first premise of the panel decision, that there was no gross discrimination. We also pretermit this approach, given our view, hereinafter set out, that the second premise of the panel decision, i.e., that plaintiffs were not diligent in seeking available pre-election judicial relief, is without adequate foundation. We thus proceed to an examination of this premise of the panel decision.

We reach our decision in the frame of reference of the decided cases involving the question whether to void an election in the face of a finding of racial discrimination in the voting and election process. The first category of cases is represented by Hamer v. Campbell, 5 Cir., 1966, 358 F.2d 215, where pre-election injunctive relief was sought and post-election relief in the form of voiding the election was ordered on the basis that pre-election relief should have been granted. The court said:

"This action does not mean that we necessarily would set aside every election in which a substantial number of citizens have been denied the right to vote. This is not a case where an election is challenged for the first time after it is held. Here appellants attempted to enjoin the election, and failing where they should have succeeded, they were diligent in seeking to have this failure rectified by our reversal prior to the election." 358 F.2d at 222.

A new election was also ordered in Hadnott v. Amos, 1969, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336, where pre-election relief was sought and the Supreme Court reversed the decision of the district court which had denied pre-election relief. Hadnott v. Amos, M.D.Ala., 1968, 295 F.Supp. 1003.

Hadnott v. Amos involved the right of black citizens to be candidates. Hamer involved the right of black citizens to become voters and to be candidates. The facts demonstrate in each case that the discrimination could have affected the results of the elections. There is no finding in either case of an intent to discriminate or of gross or spectacular discrimination. They simply turn on affording post-election relief in the form of a new election where error was found in the denial of pre-election relief sought.

Bell v. Southwell, 5 Cir., 1967, 376 F. 2d 659, is a case of a wholly different type. There the racial discrimination occurred on election day and in the method of holding the election. There was no opportunity to seek pre-election relief, and it was likely that the result of the election would have been the same notwithstanding the discrimination. The court fashioned a new rule in these circumstances: A new election if the racial discrimination was gross, spectacular and wholly indefensible. 376 F.2d at 664.

The holding of Bell v. Southwell is to be compared with Hamer v. Ely, 5 Cir., 1969, 410 F.2d 152, where we affirmed the refusal of the district court to set aside an election. We agreed that the discrimination did not reach the level of those serious violations of voting rights where a state election should be voided, citing Bell v. Southwell, 410 F.2d at 156.

The principle of requiring diligence is seen in McGill v....