United States v. Ward

• Decision Date: 11 August 1965
• Docket Number: No. 21235.,21235.
• Citation: 349 F.2d 795
• Parties: UNITED STATES of America, Appellant, v. Katherine WARD (Louisiana), Registrar of Voters of Madison Parish, Louisiana, and the State of Louisiana, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

349 F.2d 795 (1965)

UNITED STATES of America, Appellant, v. Katherine WARD (Louisiana), Registrar of Voters of Madison Parish, Louisiana, and the State of Louisiana, Appellees.

No. 21235.

United States Court of Appeals Fifth Circuit.

August 11, 1965.

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Harold H. Greene, Gerald P. Choppin, Alan G. Marer, Attys., Dept of Justice, Burke Marshall, Asst. Atty. Gen., Edward Shaheen, U. S. Atty., John Doar, Atty., Dept. of Justice, Washington, D. C., for appellant.

Jack P. F. Gremillion, Atty. Gen. of Louisiana, Harry Fuller, Carroll Buck, Harry J. Kron, Jr., Asst. Attys. Gen. of Louisiana, Baton Rouge, La., Thompson L. Clarke, St. Joseph, La., James E. Phillips, Jr., Sp. Counsel, Baton Rouge, La., for appellees.

Before MARIS,^* RIVES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The question in the Government's appeal in this § 1971(c), 42 U.S. C.A. § 1971(c), voter registration suit is whether, having found flagrant racial discrimination pursuant to a pattern or practice, the District Court should have applied the freezing principle to permit Negro applicants to be tested by the standards formerly applied to whites, rather than current higher standards applied to all. Answering in the affirmative, we modify and reverse.

For our purposes the Louisiana requirements for registration and voting may be briefly sketched. Under the Constitution of Louisiana, registration, which is a prerequisite to voting in any election, La.Const. Art. 8, § 1(b), is conducted in each parish by a registrar of voters, who is appointed by the police jury or other governing body of the parish. La.Const. Art. 8, § 18; L.S.A.-R.S. 18:1. 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, 249.¹

The qualifications which must be possessed by each person desiring to register are set forth in Title 18, §§ 31 and 35 of the Louisiana Revised Statutes. Section 31 provides that the applicant must be a citizen of the United States, twenty-one years of age, a resident in the State for one year, in the parish six months, and in the precinct three months, "of good character" and must understand "the duties and obligations of citizenship under a republican form of government", and "be able to read and write." As to the latter, he must "demonstrate his ability to do so * * by making, under oath administered by the registrar or his deputy, written application thereof in the English language or in his mother tongue." This application must "contain the essential facts necessary to show that he is entitled to register," and must be "entirely written, dated and signed by him, except that he may date, fill out and sign the blank application for registration in the presence of the registrar or his deputy, without assistance or suggestions from any person or any memorandum whatever, other than the form of the application itself."² Section 35 requires that applicants "also be able to read any clause in the Constitution of Louisiana or of the United States and give a reasonable interpretation thereof."³

Finally, an applicant (and voter) must be able to establish "in all cases" that he is the "identical person whom he represents himself to be." La.Const. Art. 8, § 1(e).

On top of these statutory qualifications for registration are the qualifications for voting contained in the Louisiana Constitution (Art. 8, § 1). In order to be a qualified voter, one must be registered. In addition, the individual must demonstrate ability to read and write, not only by filling out an application form, but also by reading and writing from dictation given by the registrar, any portion of the preamble to the United States Constitution (Art. 8, § 1(c) (7)). In addition, he must be "attached to the principles of the Constitution of the United States and of the State of Louisiana," and "well disposed to the good order and happiness of the State of Louisiana" by executing an affidavit that "he will faithfully and fully abide by all of the laws of the State * * *" Art. 8, § (1) (d). And in August 1962, the new multiplechoice "citizenship" test was inaugurated (see note 6, infra).

The suit was filed in October 1961 against the State of Louisiana and Registrar Ward, Registrar Madison Parish. Tried in December 1962, it was decided on October 22, 1963.

As the appeal is based on the trial Court's findings, with neither party attacking them, we may severely capsulate the facts by repeating or paraphrasing the Judge's language.

Registrar Ward has been registrar of voters in Madison Parish since January 1955, having succeeded to the office previously held by her mother, Mrs. Mary K. Ward, who had been registrar for 31 years. As of the time of the trial, registration in Madison Parish was periodic so that every four years a complete re-registration was held. The present period began January 1, 1961. Since that time, registration is now permanent.⁴ No Negro had been registered in Madison Parish during this century prior to the trial of this case. Even though in 1960 there were 3,334 white persons and 5,181 Negroes of voting age in Madison Parish, no Negroes were registered as of the end of the last registration period (December 31, 1960) or August 1, 1962, although between then and February 1963 a few had succeeded.⁵

Under Louisiana law, applicants for registration to vote are required to establish their identities to the satisfaction of the registrar. Registrar Ward and her mother, Mrs. Mary K. Ward, prior to the trial of this case used the identification requirement to discriminate against Negroes in the following ways. On many occasions when Negroes tried to register from 1947 through 1954, they were told that they would have to have two registered voters to identify them before they could be registered. Negroes were not asked for other reasonable identification nor was it accepted when offered. White persons who were registered were not required to produce identification. Several Negroes who attempted to register were referred to the Sheriff of Madison Parish, C. E. Hester. Sheriff Hester on one occasion in 1954 told Negroes that he was tired of their trying to register to vote and that no Negro was going to register so long as he was sheriff. No Negro tried to register to vote again until August 1961. Since the time Registrar Ward took office in January 1955, she has not required identification from applicants who had been previously registered in the parish. Since she knows most of the white people in the parish and very few of the Negroes, this policy alone inevitably operated to discriminate against Negroes. Inasmuch as no Negroes previously had been registered, that policy also inevitably discriminated against Negroes. On August 28, 1961, four Negroes appeared at the office of Registrar Ward for the purpose of registering to vote. She would not permit them to make applications for registration but told them instead that they would need two electors to identify them. She did not ask the Negroes for any other form of identification nor would she have accepted any from them. She did not expect that any white persons would identify these Negroes. The Negroes tried unsuccessfully to persuade the Mayor of Tullulah to identify them or to help them find someone who would. They were thus deprived of the opportunity to apply for registration.

In September 1962, Registrar Ward put into effect the new "citizenship" test⁶ adopted by the State Board of Registration in the previous month. In addition, since September 1962, applicants are required to read and write from dictation a portion of the preamble to the Constitution of the United States.

Prior to September 1962, the requirements for registration imposed by Registrar Ward permitted applicants to become registered if they were citizens not less than 21 years of age, if they possessed the necessary residence requirements, and if they had not been convicted of a crime. Applicants were not tested for their literacy, knowledge, intelligence or understanding, and the application form was used as a means to obtain and record essential information regarding the substantive qualifications of applicants.

At about the time that the new requirements were put into effect (September 1962), Registrar Ward abandoned the strict identification practice which had prevented Negro applicants from making application for registration. The acts and practices of Registrar Ward in using the identification requirement to discriminate against Negroes had deprived Negroes of their right to vote without distinction of race or color.

On the basis of those facts, the Court concluded that unless restrained by order of the court Registrar Ward would continue to engage in racially discriminatory acts and practices, despite her testimony to the contrary. It also concluded as a matter of law that the State was properly joined as a party defendant and that the acts and practices of the registrar and her predecessor in office, which violated 42 U.S.C.A. § 1971(a), were also the acts and practices of the State. It held that the registrar must accept from Negro applicants any reasonable identification, and that the registrar could not constitutionally use the identification requirement in any manner which would impose a heavier burden upon Negro applicants than upon white applicants.

The decree entered by the District Court did four principal things. First, although not using the exact phraseology of 42 U.S.C.A. § 1971(a), it found a discriminatory pattern and practice. Second, it enjoined the defendants from refusing to accept from Negro applicants for registration reasonable proof of their identity. Third, it enjoined them from applying different and more stringent registration qualifications, requirements, procedures and standards to Negro applicants for registration than those which are applied to white...