United States v. Penton, Civ. A. No. 1741-N.

• Decision Date: 20 November 1962
• Docket Number: Civ. A. No. 1741-N.
• Citation: 212 F. Supp. 193
• Parties: UNITED STATES of America, Plaintiff, v. George PENTON, Mrs. Samuella P. Willis, Registrars of Voters of Montgomery County, Alabama, and State of Alabama, Defendants.
• Court: U.S. District Court — Middle District of Alabama

212 F. Supp. 193

UNITED STATES of America, Plaintiff, v. George PENTON, Mrs. Samuella P. Willis, Registrars of Voters of Montgomery County, Alabama, and State of Alabama, Defendants.

Civ. A. No. 1741-N.

United States District Court M. D. Alabama, N. D.

November 20, 1962.

COPYRIGHT MATERIAL OMITTED

John Doar, David L. Norman and Arvid A. Sather, Dept. of Justice, Washington, D. C., for plaintiff.

William F. Thetford, Sol., Fifteenth Judicial Circuit, Montgomery, Ala., and Maury D. Smith and James J. Carter, Montgomery, Alabama, for the members of the Board of Registrars of Montgomery County, Alabama; and MacDonald Gallion, Atty. Gen., Willard W. Livingston, Leslie Hall, Gordon Madison, John Tyson, III, Asst. Attys. Gen., Montgomery, Ala., for defendant State of Alabama.

JOHNSON, District Judge.

This action was instituted on August 3, 1961, by the Attorney General in the name of the United States pursuant to the provisions of Part IV of the Civil Rights Act of 1957 (42 U.S.C.A. § 1971, 71 Stat. 637), as amended by the Civil Rights Act of 1960 (74 Stat. 90). The State of Alabama is joined as a party defendant pursuant to § 601(b) of the Civil Rights Act of 1960; the individual defendants are joined as members of the Board of Registrars of Montgomery County, Alabama. The plaintiff seeks to have this Court grant injunctive relief against certain acts and practices that have since January 1, 1956, deprived citizens of the United States residing in Montgomery County, Alabama, of the right to register to vote without discrimination because of race or color. The plaintiff seeks to have this Court issue such additional orders as will insure the fair, equal and nondiscriminatory administration of voting registration procedures and standards in Montgomery County, Alabama.

The cause was submitted to the Court, sitting without a jury, on the issues made up by the pleadings and proof. Upon consideration of the credible evidence¹ (consisting of the oral testimony of over 175 witnesses, together with approximately 13,000 exhibits), the stipulations of the parties, the several interrogatories and responses thereto, and the briefs and arguments, this Court now proceeds to make and enter the appropriate findings of fact and conclusions of law, and, as authorized by Rule 52, Federal Rules of Civil Procedure, incorporates those findings and conclusions in this memorandum opinion.

The right to vote in Alabama is governed by both constitutional and statutory provisions.² This litigation does not involve the constitutionality of any of those laws.

Under the Constitution of Alabama, § 178, registration is a prerequisite to voting in any election. The registration of voters is to be conducted in each county, separately, by a board of registrars appointed by the Governor, Auditor, and Commissioner of Agriculture and Industries. Title 17, § 21, Code of Alabama 1940, Recompiled. Section 21 of the same title states that each board is to have three members, and § 34 authorizes the functions to be carried out by a majority. In addition to qualifications such as citizenship, age and residence, applicants for registration must be able to read and write, must be of good character, and must embrace the "duties and obligations of citizenship." Title 17, § 32.

A registration questionnaire is authorized by statute, the purpose of the questionnaire being to aid the registrars in determining whether the applicant possesses the requisite qualifications. The questionnaire is to be filled out "in the presence of the board without assistance" (Title 17, § 31), and is to be subscribed by the applicant (§ 186, Constitution of Alabama). The oath to support and defend the Constitution of the United States and the Constitution of the State of Alabama is to be a part of the questionnaire, with the Code providing:

"The * * * oath shall be duly signed and sworn to by the applicant before a member of the board." (Emphasis supplied.) Title 17, § 31, Code of Alabama.

The questionnaire is prescribed by the Supreme Court of Alabama and was used without any variation for practically all the period involved in this case.³

In May 1960, the United States filed a "records examination" demand pursuant to Title III of the Civil Rights Act of 1960. This demand was predicated upon the allegation that the Attorney General of the United States had information tending to show discrimination on the basis of race or color which had been made with respect to registration and voting in Montgomery County, Alabama. This Court ordered a production and examination of these registration records in August 1960. This production was over the objections of the defendants. See State of Alabama, etc. v. William P. Rogers, etc. et al., and In re Crum Dinkins (consolidated), 187 F. Supp. 848 (M.D.Ala., 1960); affirmed, 5th Cir., 1961, 285 F.2d 430. On June 16, 1961, the Attorney General of the United States notified the defendants of specific charges of racial discrimination in the voter registration practices in Montgomery County, Alabama. On August 3, 1961, this case was filed.

Montgomery County, Alabama, has a voting-age population of 95,967, of which 62,911 are white persons and 33,056 are Negroes. As of December 15, 1961, 33,846 white persons and 3,766 Negroes were registered to vote. From January 1, 1956 until June 16, 1961, approximately 13,390 applications for registration were filed with the Montgomery County Board of Registrars, of which approximately 8,868 were by white persons and 4,522 were by Negroes. The defendants registered over 96 per cent of the white applicants and rejected for registration over 75 per cent of the Negro applicants—including 710 Negro applicants who had 12 years or more of formal education. Of these rejected Negroes, 6 had master's degrees; 152 had four years of college training, and 222 had some college education. This group of rejected Negroes included 108 Negro public school teachers.⁴

Although the Montgomery County Board of Registrars had a long-established rule that the questionnaire was to be filled out completely and without assistance, this rule was not uniformly followed by the Board during the period January 1, 1956 through November 14, 1961, according to the sworn testimony of one of the registrars, Mrs. Samuella P. Willis. For instance, the Board filled out Question 5 completely for white applicants, but not for Negroes. There were other admitted exceptions, such as Questions 1 and 3 on the Supplemental Oath, the Application on page one, and Question 19. Commencing in February 1961 (after the production and examination of the records), the Board raised the standard to require a perfect application.⁵

The evidence in this case (particularly the originals of the questionnaires themselves) overwhelmingly reflects that from January 1, 1956 until at least June 1960, the registrars of Montgomery County, Alabama, and the defendant State and its agents, have deliberately and consistently engaged in procedures and practices which have favored white applicants and discriminated against Negro applicants who were seeking to become registered voters. This discrimination was in violation of the Fourteenth and Fifteenth Amendments to the Constitution of the United States and the Civil Rights Act, supra, in that it involved procedures and practices designed to deny (and which were effective in denying) the rights of citizens to vote without distinction of race or color. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524; United States v. Thomas, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535; and United States v. State of Alabama, 192 F.Supp. 677 (M.D.Ala., 1961), 304 F.2d 583 (5th Cir., 1962); affirmed by the Supreme Court of the United States, 83 S.Ct. 145 (1962).

As to Negro applicants, the defendants used the questionnaire to obtain substantive information regarding the applicants' qualifications for registering and also as a tricky examination or test. If a Negro applicant failed to meet the standard required of him, he was denied registration regardless of whether the error or omission on the form was formal, technical, or inconsequential. With respect to white applicants, the defendants used the questionnaire merely as a method to obtain substantive information concerning the applicants' qualifications. For white applicants, the questionnaire was not used as an examination or test.⁶

Prior to June 1, 1960, the Board registered only 54 Negro applicants who had technical errors appearing in their questionnaires; up until the same time, the Board rejected only 74 whites for the same type errors. The rejection of whites subsequent to June 1960 (and particularly since June 1961, when it became apparent that this case was to be filed)⁷ impresses this Court as being nothing more than a sham and an attempt on the part of the Board to disguise their past discriminatory practices. The rejection of these white applicants approached the ridiculous when the Board rejected the law partner of one of the defense attorneys, a retired general and graduate of West Point, and the college graduate son of one of the State's attorneys general. Such evidence has little or no probative value.

This Court has made a careful study and analysis of both the white accepted and Negro rejected applicants whose applications were processed by the Board during the period involved in this case. One thousand and seventy white applicants whose applications contained technical errors were accepted by the Board during the period January 1, 1956 to June 14, 1961. This is in startling contrast to the Board's grading of the Negro applicants' questionnaires. This discrimination in grading was further aggravated by the defendants' assisting, when necessary, white applicants in completing the application form by explaining questions on the form and the answers required, or filling out part of the form for white applicants.⁸ Such discriminatory practices are further...