United States v. Atkins

• Decision Date: 03 October 1963
• Docket Number: No. 20325.,20325.
• Parties: UNITED STATES of America, Appellant, v. Victor B. ATKINS et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

323 F.2d 733 (1963)

UNITED STATES of America, Appellant, v. Victor B. ATKINS et al., Appellees.

No. 20325.

United States Court of Appeals Fifth Circuit.

October 3, 1963.

Vernol R. Jansen, Jr., U. S. Atty., Mobile, Ala., Howard A. Glickstein, Harold H. Greene, John Doar, Attys., Dept. of Justice, Burke Marshall, Asst. Atty. Gen., Alan G. Marer, Atty., Dept. of Justice, Washington, D. C., for appellant.

Richmond M. Flowers, Atty. Gen. of Alabama, Gordon Madison, Leslie Hall, Asst. Attys. Gen. of Alabama, Montgomery, Ala., Blanchard L. McLeod, Camden, Ala., for appellees.

Before RIVES, CAMERON and HAYS,^* Circuit Judges.

RIVES, Circuit Judge.

The complaint was filed in April 1961 pursuant to the Civil Rights Act of 1957, as amended, 42 U.S.C.A. § 1971, and alleged the employment of certain racially discriminatory acts and practices in the registration of voters in Dallas County, Alabama. Named as defendants were the State of Alabama and J. P. Majors, who was then the only member of the Board of Registrars of Dallas County. In May 1961 after the suit was filed, a new Board of Registrars was appointed. The three new members of the Board, Victor B. Atkins, Sr., Col. Joseph Bibb, and Aubrey Allen, were later substituted as defendants in place of Majors. The complaint asked that the Registrars be enjoined from applying in the future different and more stringent registration standards to Negroes and asked for a number of specific injunctive and mandatory orders relating to certain practices. On November 15, 1952, the district court denied the requested relief, although it did issue an injunction whereby the Board must allow rejected applicants to apply again for registration after sixty days from the date of their rejection. United States v. Atkins, S.D.Ala.1962, 210 F. Supp. 441.

The Alabama constitutional and statutory provisions relating to the registration of voters have been set out in full in Appendix A to the opinion in United States v. Penton, M.D.Ala.1962, 212 F. Supp. 193, 202-204. It is necessary, however, for an understanding of this case that we summarize the more pertinent of those provisions.

In Alabama registration is a prerequisite to voting. Ala.Const. §§ 178, 181, 184. Registration of voters is conducted in each county separately by its Board of Registrars, which is appointed by the Governor, Auditor and Commissioner of Agriculture and Industries. Ala.Const. § 186; Code of Alabama Tit. 17, § 21 (Recompiled 1958). Under the Alabama Constitution, to be qualified to register a person must be a citizen of the United States, twenty-one years of age, and a resident of the state, county and precinct or ward for the prescribed length of time.¹ Ala.Const. §§ 177, 178, as amended. In addition, the person must be able to read and write in the English language any article of the United States Constitution submitted to him, and he must be of good character and embrace the "duties and obligations of citizenship" under the two Constitutions. Ala. Const. § 181, as amended; see Code of Alabama Tit. 17, § 32 (Recompiled 1958). The Alabama Constitution further provides that the boards of registrars, to aid them in judicially determining the qualifications of applicants, shall be furnished with a written questionnaire drawn up by the Alabama Supreme Court. The questionnaire "shall be so worded that the answers thereto will place before the boards of registrars information necessary or proper to aid them to pass upon the qualification of each applicant. Such questionnaire shall be answered in writing by the applicant, in the presence of the board without assistance * * *." Ala.Const. § 181, as amended. (Emphasis added.) An exception is made for the physically handicapped. The applicant must sign a loyalty oath, and the board is allowed to receive information about the applicant or about the truthfulness of the information furnished by him. The Alabama Constitution disqualifies all idiots and insane persons, and those convicted of certain crimes. Ala. Const. § 182.

A statute gives the board of registrars power "to examine, under oath or affirmation, all applicants for registration, and to take testimony touching the qualifications of such applicants." Code of Alabama Tit. 17, § 31 (Recompiled 1958). The board may refuse to register anyone "who fails to establish by evidence to the reasonable satisfaction of the board of registrars that he or she is qualified." Code of Alabama Tit. 17, § 33 (Recompiled 1958). The board is given the power to "make such rules and regulations as it deems proper for the receipt of applications for registration and the accomplishing in as expedient a manner as possible the registration of those entitled to register." Code of Alabama Tit. 17, § 53 (Recompiled 1958). A copy of the questionnaire which was drawn up by the Alabama Supreme Court is printed in Appendix B of United States v. Penton, supra at 205-206 of 212 F.Supp. The only alterations in the questionnaire have been in the order of the questions.

The district court found and the evidence clearly indicates that the prior Registrars of Dallas County engaged in a pattern or practice of racial discrimination. At the time of trial, Dallas County had a voting-age population of 29,515, of which 14,400 were white persons and 15,115 were Negroes; 8597 of the whites and 242 of the Negroes were qualified voters. Between January 1952 and December 1960, ten different individuals served as members of the Board of Registrars of Dallas County. Between those dates, 4,500 whites and only 88 Negroes were registered. Only 14 Negroes were registered from June 1954 to December 1960. The district court found that from 1954 to 1961 many unqualified whites were registered, whereas many qualified Negroes were rejected. Although the number of Negro applications which were rejected and the identity of the applicants are not known, testimony showed that among those rejected were two doctors, six college graduates, and two persons with some college education. It was the practice of the board not to notify applicants of rejection. Whites were not always required to fill out application forms themselves or to understand the questions thereon. Of the applications surveyed, analysis showed that 47% of the white applications accepted were filled out in whole or in part by someone other than the person signing as the applicant — a clear violation of section 181 of the Alabama Constitution and title 17, section 31 of the Code of Alabama. The reappearance of answers which use precisely the same language in numerous applications (one answer appears 1160 times) indicates that the assistance was given by the registrars themselves. And in those white applications which were filled out by the applicant, the numerous errors and omissions which they contained were disregarded.

From November 1960 until the present Board of Registrars took over in June 1961, there was no functioning board of registrars in Dallas County. Before taking office, the new members of the Board made an inquiry into the registration laws of Alabama, and, without reference to the practices of their predecessors, instituted a number of changes in procedure: 1) The questionnaire has now become a test and must be correctly filled out, although no set standards for grading them have been devised. 2) Applicants are asked oral questions, usually about the meaning of the United States or Alabama Constitution. 3) Inquiries are made into the character and reputation of the applicants. 4) Notice of acceptance or rejection is now given to all applicants. 5) Once rejected by the present Board, no applicant could reapply. The last of these practices was halted by the injunction issued by the district court.

The district court found as a fact that the present Board of Registrars has not engaged in racially discriminatory acts and practices, has not pursued a full-time pattern or practice of discrimination, and has not been more stringent in its requirements to Negroes than to whites. The court found that the present Board "has made every effort to comply with the letter and the spirit of the law, and has taken the necessary steps to eliminate the discrimination which was the basis of the suit against its predecessor Board." The United States attacks this finding and asserts that the new practices are applied so as to be merely a more sophisticated form of discrimination than that practiced in the past.

This Court may not set aside findings of fact of the district court unless they are "clearly erroneous." Fed.R.Civ.P. 52(a). A study of the evidence in this case does not convince us that the district court was clearly in error in finding that the present Board is not engaged in racial discrimination. From June 1961, when this Board first met, to the time of trial, May 2, 1962, there had been 480 white and 114 Negro applicants. Of the 480 whites, 443 were registered and 37 rejected. Of the 114 Negroes, 71 were registered and 43 rejected. That is, about 92% of the whites and about 62% of the Negroes were accepted.² The appellant (the United States) asserts that since the percentage of Negro rejections is much greater than white rejections, even when applicants are broken down into different educational groups,³ the current Board must not be treating Negroes on the same basis as whites. But taking into consideration the numerous factors which determine registration under the standards the Board was using and the relatively small figures on which the percentages are based, we cannot say that these figures indicate that the finding of the district court was clearly erroneous.

The appellant goes on to cite specific ways in which it claims that the new and more stringent requirements are being applied in a discriminatory fashion. The question of whether these requirements, absent proof of discrimination by the present Board, may be sustained, will be treated later in this opinion. The appellant asserts that...