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Civil Rights- Supreme Court Hear Challenges to Southern Voter CASE NOTE CIVIL RIGHTS-SuPREmE COURT HEARS CHALLENGES TO SOUTHERN VOTER REGISTRATION SYSTEMS The Supreme Court has noted probable jurisdiction in two critical actions I brought by the United States under the Civil Rights Act of 1960 2 in an endeavor to halt two states' continued resistance to court attempts to enforce the fifteenth amendment.3 In United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963), a three-judge district court held 4 unconstitu- tional the Louisiana provisions which require a prospective voter to inter- pret reasonably a section of the state or federal constitution if so requested by the parish registrar.5 The holding of invalidity was rested on the 'Louisiana v. United States, 377 U.S. 987 (1964) (No. 1073, 1963 Term; renum- bered No. 67, 1964 Term) ; United States v. Mississippi, 377 U.S. 988 (1964) (No. 1097, 1963 Term; renumbered No. 73, 1964 Term). The paucity of positive results from the voter registration drive in Mississippi during the summer of 1964 increases the importance of these actions. See N.Y. Times, Aug. 20, 1964, p. 13, col. 1. The extent of Southern white opposition and one of the major problems with enforcing the right to vote through county-by-county legal actions are illustrated by federal District Judge Cox's sentiments. At a hearing in which he refused to issue an injunction to speed up the registration in Canton, Mississippi, this jurist stated that he was interested in eliminating discrimination but not in whether "the registrar is going to give a registration test to a bunch of niggers on a voter drive." Watters, Negro Registration in the South, The New Republic, April 4, 1964, pp. 15, 17. See also N.Y. Times, Oct. 26, 1964, p. 20, col. 3. See generally KEY, SOUTHERN PoLIrIcs IN STATE AND NATION 509-28, 555-77, 644-63 (1949); Hersey, A Life for a Vote, Saturday Evening Post, Sept. 26, 1964, p. 34. 2 Civil Rights Act of 1960, § 601, 74 Stat. 90, 42 U.S.C. § 1971 (Supp. V, 1964) [hereinafter this section of the United States Code, and the subsections thereof, are referred to in the text simply as section and subsection]. 3 "Every device of disenfranchisement which the judiciary has destroyed, with few exceptions, has been replaced by a new scheme designed by the southern states to perpetuate the myth of 'white supremacy.'" Note, Negro Disenfranchisement-A Challenge to the Constitution, 47 CoLum. L. Rxv. 76 (1947). Compare Guinn v. United States, 238 U.S. 347 (1915) (invalidating Oklahoma "grandfather clause"), with Lane v. Wilson, 307 U.S. 268, 270-71 (1939) (invalidating Oklahoma statute "obviously directed towards the consequences of the decision in Guinn v. United States . ."). Compare Smith v. Allwright, 321 U.S. 649 (1944), with Davis v. Schnell, 81 F. Supp. 872, 878 (S.D. Ala. 1949), affd mem., 336 U.S. 933 (1949) (invalidating a literacy test "used with a view of meeting the decision of the Supreme Court of the United States in Smith v. Allwright . ."). For a review of this ping-pong match between the Court and the South, see Cushman, The Texas "White Primary" Case-Smith v. Allwright (1944), 30 CORNELL L.Q. 66 (1944). 4 Circuit Judge Wisdom wrote the opinion, in which District Judge Christen- berry joined. District Judge West dissented. 6 LA. CONsT. art 8, § 1(d); LA. REV. STAT. § 18:35 (1950). Several registrars have read these provisions to mean that the applicant need not actually interpret the (587) 588 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113 provisions' purpose 6 and the excessive discretion allowed the registrars.7 The court further enjoined the state from using its new objective citizen- ship test 8 in the twenty-one parishes in which the interpretation test had been employed until a complete reregistration of all the voters took place or the interpretation test lost its discriminatory effect on the parish.9 In United States v. Mississippi,229 F. Supp. 925 (S.D. Miss. 1964), the Government sought, inter alia, a holding that several of the state provi- sions dealing with voter registration,' including a required constitutional interpretation test, had the same constitutional infirmities as had been found in Louisiana. Its petition requested adequate equitable protection against the continuation of this state program of prohibiting Negro en- constitutions, but only be able to do so. Although the state board of registration once maintained that an applicant must demonstrate his ability, it no longer does so. The majority in Louisiana found that some registrars had applied the test only to Negroes, some had chosen more difficult clauses for Negroes, and others had refused to accept reasonable interpretations from Negroes. 225 F. Supp. at 382-83. 0 The court's opinion presents a historical survey of the franchise in Louisiana, relying mainly on commentators on southern history. The convention that adopted the interpretation test was closed. Remarks by public officials and public opinion as reported in the state's newspapers indicate that the convention's purpose was to replace the "grandfather clause" invalidated by Guinn v. United States, 238 U.S. 347 (1915). Following passage in 1921 the test was not employed since the only signifi- cant election, the Democratic primary, excluded Negroes. When the Supreme Court prohibited "white primaries," Smith v. Allwright, 321 U.S. 649 (1944), and the efforts of Negro organizations intensified, the Louisiana legislature established a joint committee to "maintain segregation of the races in all phases of our life in accordance with the customs, traditions, and laws of our State." La. H. Con. Res. 27 (1954), quoted in 225 F. Supp. at 378. The chairman and the counsel of this legis- lative committee incorporated a private group to promote the activities of the com- mittee. The group and these men distributed literature and met with the registrars. They worked with the registrars in purging nearly all registered Negroes from the lists for not taking the interpretation test, but left Caucasians who had similarly not taken the test registered. The registrars then began using the interpretation test to keep the list clean of Negroes. 225 F. Supp. at 363-80. 7225 F. Supp. at 391: "When a State constitution gives raw power to a registrar to grant, or to withhold registration as he sees fit, the constitution violates both the due process and the equal protection clauses of the Fourteenth Amendment." 8 Contemporaneously with the Government's institution of the instant action, Louisiana first passed a statute, LA. Rxv. STAT. ANN. § 18:191 (Supp. 1963), and then a constitutional provision, LA. CoNsT. art. 8, § 18, empowering the board of registrars to prepare an objective test to determine whether a prospective voter understood the duties and obligations of citizenship. A test consisting of multiple choice questions was prepared. ) The court retained jurisdiction for "the purpose of allowing the United States to prove and the State to disprove that the interpretation test was used in any of the forty-three parishes not named in the Court's decree, and for other purposes." 225 F. Supp. at 398. I' The Government challenged constitutional provisions establishing a reading, writing, and interpretation test, Miss. CoNsT. art. 12, § 244, and an undefined standard of "good moral character" to be determined by the registrar, Miss. CoNsr. art. 12, § 241-A, and statutes allowing disqualification by registrar for faulty completion of application forms, Miss. CoDE ANN. § 3213 (Supp. 1962), and other registration provisions. This Note will deal specifically with the validity of the interpretation test, although the analysis can be applied to the other provisions. CASE NOTE franchisement."1 The three-judge court held,12 inter alia: (1) the court lacked jurisdiction because the United States was unauthorized to bring the suit; (2) the state was not a proper party; and (3) all the provisions under attack were valid.' 3 The action was dismissed for failure to state a claim upon which relief could be granted. JURISDICTION Subsection (d) of 42 United States Code section 1971 14 gives the federal courts jurisdiction in all actions brought under that section. Sec- tion 1971(c) provides: (c) Whenever any person has engaged or there are reason- able grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) of this section, the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper pro- ceeding for preventive relief, including an application for a per- manent or temporary injunction, restraining order, or other order.15 11 The court was requested to issue injunctions against enforcing the challenged provisions, engaging in any act that would deny the vote on the basis of race or color, and using any test that bears a direct relationship to the quality of education afforded applicants. The Government also requested that the court find a pattern and practice of racial discrimination under 42 U.S.C. § 1971(e) (Supp. IV, 1963), and that all Negro applicants who are residents, over 21 years of age, not convicted of a crime, and who can read be allowed to register. Jurisdictional Statement for Appellant, p. 6, United States v. Mississippi, 377 U.S. 988 (1964) (No. 1097, 1963 Term; renumbered No. 73, 1964 Term) (noting probable jurisdiction). 12 The late Circuit Judge Cameron wrote the opinion of the court. District Judge Cox concurred, accepting Cameron's opinion in full. Circuit Judge Brown dissented. Circuit Judge Wisdom was originally designated but relieved himself and was replaced by Circuit Judge Cameron.
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