United States v. State of Louisiana, Civ. A. No. 2548.

Decision Date31 December 1963
Docket NumberCiv. A. No. 2548.
Citation225 F. Supp. 353
PartiesUNITED STATES of America, Plaintiff, v. STATE OF LOUISIANA, Jimmie H. Davis, C. C. Aycock, J. Thomas Jewel, as Members of the Board of Registration of the State of Louisiana, and Hugh E. Cutrer, Jr., Director and ex officio Secretary of the Board of Registration of the State of Louisiana, Defendants.
CourtU.S. District Court — Eastern District of Louisiana

COPYRIGHT MATERIAL OMITTED

Robert F. Kennedy, Burke Marshall, Washington, D. C., Louis Lacour, New Orleans, La., John Doar, Washington, D. C., for plaintiff.

Jack P. F. Gremillion, Carroll Buck, Harry J. Kron, Jr., Baton Rouge, La., Henry Roberts, Jr., Weldon Cousins, John Jackson, New Orleans, La., Thomas W. McFerrin, Baton Rouge, La., for defendants.

Before WISDOM, Circuit Judge, and CHRISTENBERRY and WEST, District Judges.

WISDOM, Circuit Judge.

A wall stands in Louisiana between registered voters and unregistered, eligible Negro voters. The wall is the State constitutional requirement that an applicant for registration "understand and give a reasonable interpretation of any section" of the Constitutions of Louisiana or of the United States. It is not the only wall of its kind, but since the Supreme Court's demolishment of the white primary, the interpretation test has been the highest, best-guarded, most effective barrier to Negro voting in Louisiana.1

When a Louisiana citizen seeks to register, the Parish Registrar of Voters may ask the applicant to interpret the provision, "The Supreme Court and the Court of Appeal, and each of the judges * * may also in aid of their respective jurisdictions, original, appellate, or supervisory, issue writs of mandamus, certiorari, prohibition, quo warranto, and all other needful writs". Or, the registrar may ask the applicant to interpret a less technical but more difficult provision, constitutionally, such as, "Every person has the natural right to worship God according to the dictates of his own conscience."2 In giving this test, the registrar selects the constitutional section and he must be satisfied with the explanation. In many parishes the registrar is not easily satisfied with constitutional interpretations from Negro applicants.

We hold: this wall, built to bar Negroes from access to the franchise, must come down. The understanding clause or interpretation test is not a literacy requirement. It has no rational relation to measuring the ability of an elector to read and write. It is a test of an elector's ability to interpret the Louisiana and United States Constitutions. Considering this law in its historical setting and considering too the actual operation and inescapable effect of the law, it is evident that the test is a sophisticated scheme to disfranchise Negroes. The test is unconstitutional as written and as administered.

I.

The United States brings this action against the State of Louisiana and the directors and members of the Louisiana Board of Registration. In Section 601(b) of the Civil Rights Act Congress specifically authorizes such a suit. When an official of the State or of a subdivision of the State is found to have discriminated against United States citizens in violation of 42 U.S.C.A. § 1971(a), "the act or practice shall also be deemed that of the State and the State may be joined as a party defendant". 42 U.S.C.A. § 1971 (c). See United States v. Alabama, 1960, 362 U.S. 602, 80 S.Ct. 924, 4 L.Ed. 982; United States v. Dogan, 5 Cir. 1963, 314 F.2d 767, 771; Kennedy v. Lynd, 5 Cir., 1962, 306 F.2d 222, 228, cert. den'd 1963, 371 U.S. 952, 83 S.Ct. 507, 9 L.Ed.2d 500; United States v. Atkins, 5 Cir. 1963, 323 F.2d 733. Section 601 is clearly appropriate legislation under the Fifteenth Amendment, to say nothing of other sources of constitutional authority, and in United States v. Fox, E.D.La. 1962, 211 F.Supp. 25, appeal pending, the court summarily rejected the State's attack on the constitutionality of the section. See also United States v. Raines, 1960, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524.

Independently of Section 601(b), "The obligations which United States is under to promote the interests of all and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court". In re Debs, 1894, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092. When the alleged wrongdoing is based on a State law which is contrary to the superior authority of the United States Constitution, the Nation, as well as the aggrieved individuals, is injured. In such a conflict with the State the power of the Nation to protect itself and to go into its own courts to prevent the States from destroying federally protected rights of citizens derived from the Constitution would seem to be implicit in the Supremacy Clause and inherent in our federal system.

When a private litigant invokes the Fourteenth and Fifteenth Amendments, he must be able to show that State action is involved in the denial of his rights. Anomalously, he cannot sue the State, but must sue agents of the State on the theory that if the act to be enforced is unconstitutional, it is not the act of the State. Ex parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714. This necessary fiction to accommodate the Eleventh Amendment provides no basis for any argument that the State cannot be made a party to this action. Here, no private litigant but the Nation itself is attacking the constitutionality of the laws of Louisiana. Louisiana therefore is the real party at interest and a proper party defendant. The Eleventh Amendment has no application to an action brought by the United States in its sovereign capacity. Principality of Monaco v. Mississippi, 1934, 292 U.S. 313, 329, 54 S.Ct. 745, 78 L.Ed. 1282.

The State and its agent, the Board of Registration, have the power and duty to prescribe rules and regulations governing the administration of voter qualification laws in Louisiana.3 The Board has the power to remove at will any Parish Registrar of Voters.4

The court has jurisdiction under 42 U.S.C.A. § 1971, 28 U.S.C.A. § 1345, and 28 U.S.C.A. § 2281. Since the suit challenges the validity of provisions of the State Constitution and certain statutes and presents substantial constitutional questions, it is a proper case to be heard by a three-judge court. 28 U.S. C.A. § 2281.

II.

Under the Constitution of Louisiana, registration, which is a prerequisite to voting in any election, is conducted in each parish by a registrar of voters. La.Const. Art. VIII, § 1(b). Except in Orleans Parish, the registrar is appointed by the police jury or other governing body of the parish. La.Const. Art. VIII, § 18; L.S.A.-R.S. 18:1.5 Permanent registration is mandatory for parishes containing a municipal corporation of more than 100,000 population, and optional for other parishes. L.S.A.-R.S. 18:231, 18:249.

The Constitution of Louisiana, Article VIII, Section 1(d), as amended in 1960, provides, in part:6

"He a voter shall be a person of good character and reputation, attached to the principles of the Constitution of the United States and of the State of Louisiana, and shall be able to understand and give a reasonable interpretation of any section of either Constitution when read to him by the registrar, and he must be well disposed to the good order and the happiness of the State of Louisiana and of the United States and must understand the duties and obligations of citizenship under a republican form of government." (Emphasis added.)

Title 18, Section 35 of the Louisiana Revised Statutes provides, in part:

"Applicants for registration shall also be able to read any clause in the Constitution of Louisiana or of the United States and give a reasonable interpretation thereof."

The United States attacks the understanding and interpretation requirement as violative of 42 U.S.C.A. § 1971, the Civil Rights Act, and of the Fourteenth and Fifteenth Amendments to the Constitution of the United States.

III.

A. There is no license for the loose statement that in our constitutional system the qualification of voters is "exclusively" committed to the States. See, for example, Darby v. Daniel, S.D.Miss. 1958, 168 F.Supp. 170, 176. More accurately, the States, under Article 1, Section 2 of the Constitution and the Seventeenth Amendment, are free to establish voting qualifications — only if the qualifications do not transgress the United States Constitution. Ex parte Clarke, 1879, 100 U.S. 399, 25 L.Ed. 715; Lassiter v. Northampton County Bd. of Elections, 1959, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072. The books are filled with examples of state election laws and practices found to transgress constitutional guaranties. Guinn v. United States, 1915, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340; Lane v. Wilson, 1938, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; United States v. Classic, 1941, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; Davis v. Schnell, 1949, S.D.Ala., 81 F.Supp. 872, aff'd 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093. In United States v. Classic, a "Louisiana" case, the Supreme Court, in sustaining federal indictments against state election officials for falsely certifying returns in a congressional election, said:

"While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, citations omitted this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by § 2 of Art. I, to the extent that Congress has not restricted state action by the exercise of its powers to regulate elections under § 4 and its more general power under Article I, § 8, clause 18 of the Constitution `to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.' See Ex parte Siebold, 100 U.S. 371 25 L.Ed. 717; Ex parte Yarbrough, supra,
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