Toney v. White (348 F. Supp. 188, 1972)

FINDINGS OF FACT

DAWKINS, Chief Judge.

1. These consolidated actions were filed respectively May 4, 1970 and June 8, 1970 under Sections 2, 11(a), and 12 (b), of the Voting Rights Act of 1965, and 42 U.S.C. § 1971(a) and (c). Private plaintiffs seek declaratory and injunctive relief pursuant to 42 U.S.C. § 1971 et seq. and 28 U.S.C. §§ 2201 and 2202.

2. Plaintiffs charged defendants with having engaged in certain conduct which had the effect of depriving a number of eligible Negro voters of the right to vote in the April 4, 1970 primary election; a number of Negro voters were deprived of the right to become eligible to vote in this primary election; and a number of ineligible white voters were permitted to vote in this primary election for Mayor, Marshal, Board of Aldermen, and Democratic Executive Committee for the Village of Tallulah, Louisiana.

3. Defendant Myrtis Bishop is Registrar of Voters of Madison Parish, Louisiana. Her duties as such include, among other things, the registration of voters, purging from the registration rolls of those voters not qualified to remain on the rolls, and preparation, maintenance and canvassing of the official registration rolls.

4. The defendant Municipal Democratic Executive Committee of Tallulah, Louisiana is composed- of three members. The duties of this committee include calling and conducting of Democratic municipal primary elections, and selection of commissioners and clerks to preside over the elections at each polling precinct within the municipal boundaries. Defendants N. A. White, John T. Seale, and Rev. Willie Johnson are, respectively, the Chairman and members of the Democratic Executive Committee of Tallulah.

5. Although a majority of the population of Tallulah, Louisiana is Negro, until recent years there has been no participation by Negroes in the political affairs of the community. Prior to 1961 there were no Negroes registered to vote in Tallulah and only a fraction of the Negro voting-age population was registered prior to passage of the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. With prodding from this Court by issuance of an injunction, large numbers of Negroes have been allowed to register. At the close of registration for the April 4, 1970, Democratic Primary for municipal offices in Tallulah there were approximately 2,833 Negro voters and 2,-422 white voters eligible to vote in the upcoming primary election for the offices involved.

6. On three occasions this Court has enjoined election officials in Madison Parish, Louisiana from engaging in discriminatory conduct against Negro voters. In United States v. Ward, 222 F.Supp. 617 (W.D.La.1963), rev’d on other grounds, 349 F.2d 795 (5th Cir. 1965), mod’f. on reh. 352 F.2d 329 (5th Cir. 1965), this Court permanently enjoined the defendants from discriminating against Negroes in the voter registration process in Madison Parish, Louisiana. January 24, 1968, in Brown v. Post, 279 F.Supp. 60 (W.D.La.1968), a decree was signed requiring election officials in Madison Parish to “administer the voting process in compliance with the applicable Louisiana and Federal law in such a manner that will afford equal opportunities to vote to all qualified voters regardless of race or color.” The order specifically enjoined defendant election officials from engaging in any practices and procedures which may be discriminatory in fact. Again, this Court, on March 10, 1969, issued a similar order to the defendant election officials. United States v. Post, 297 F.Supp. 46 (W.D.La. 1969). In the latter two actions, this Court voided elections and required new elections to be held.

7. April 4, 1970, a primary election for Democratic party candidates for the municipal offices of Village Marshal, Mayor, Board of Aldermen and Democratic Executive Committee was held in Tallulah. Nine Negro and eight white electors qualified as candidates for these offices.

8. Under Louisiana law, registration of voters is closed thirty days prior to any primary or general election. No person is permitted to qualify to vote within this period. Thus, in this instance the registration for the primary to be held April 4, 1970 was closed March 5, 1970. The purpose of this law is to give the Registrar time within which to prepare voting rolls for use at the various precincts by the election commissioners.

9. Louisiana law further requires the registrar to cancel annually from the registration rolls the names of those registrants who have not voted within the preceding four-year period. L.S.A.R.S. 18:252. The applicable procedure to be followed is set forth in L.S.A.-R.S. 18:24o. Any registrant subject to cancellation must be so notified and given the opportunity to appear before the registrar within a specified time and show cause why his registration should not be cancelled. If such registrant appears within the specified time and satisfactorily identifies himself, the registration record must be marked “Reinstated”; and he is entitled to vote as before. Pursuant to the above statute, Bishop mailed notices to approximately 141 registrants, all but 11 of whom were Negroes, notifying them that her records reflected irregularities in their registration for the reason that they had not voted within the previous four years. This notice advised the registrants that they could appear within ten days and show cause why their names should not be erased from the official roles. However, on March 5, 1970, the day upon which registration for the April 4 primary was closed, Bishop caused to be published in the local newspaper (the paper is published only once weekly) a notice advising the 141 registrants that they would be removed from the rolls for failure to vote in the preceding four-year period.

10. This publication did not contain any notification, as required by law, of the registrants’ rights to appear and be reinstated or reregistered. Bishop failed to reinstate and removed from the rolls those who did appear and did prove their right to remain thereon, notwithstanding Louisiana law which requires that if the time within which a registrant must appear runs into the 30-day period when the books are closed for registration, a registrant who appears and satisfactorily identifies himself will not be deprived of his right to vote due to cancellation. Nor should four who were registered have been on the list for failing to vote. Bishop admitted that these persons were included by mistake. In one instance, no notice was given to the person involved that such a mistake was made and that he could exercise his franchise.

11. The period granted by the Registrar for an appearance for reinstatement was March 4 through March 13, 1970. March 4 was the day the letters were sent out. March 7 and 8 (Saturday and Sunday respectively) the Registrar’s office was closed. It was also closed March 11, 12 and 13 due to Bishop’s being out of town attending a State convention. At most, the office was available to those purged from the rolls for four days. There were 65 letters returned as non-deliverable so these persons only had one day, March 6, 1970, within which to appear. (Statute allows 3 days from publication or 10 days from notice, whichever is later.) However, the publication contained no language to the effect that they could “show cause” within the period and not be purged.

12. On returning from the convention, Bishop decided to extend the period four days. However, she never publicly communicated this decision to anyone involved.

13. This purge, for all intents and purposes, was conducted within the 30 days prior to the election. Bishop sought advice from her legal advisor as to the legality of the timing of the purge. The response was approval. However, it seems that this is not the opinion of the Attorney General of Louisiana in regard to L.S.A.-R.S. 18:240:

“Although the above referred to Section 240 fixes no time when the Registrar should begin his determination of which registrants are subject to cancellation, it is presumed that the Registrar will perform, his duties according to the intent of the law as expeditiously as possible, so that by October 1 of any year subsequent to October 1, 1955, such cancellations as should be made will be made in the records. It would seem, therefore, that orderly procedure would require that within a reasonable time after the voting periods the Registrar examine the list and whenever it is found by such examination that a name should be cancelled, notice should be promptly given to that registrant, and publication of notice made as above set .

It would also appear that if the Registrar waits until 30 days before an election to begin the performance of his duties, this would not be within the spirit of the law. If, however, the time within which a registrant should be called upon to appear before the Registrar should fall within the 30-day period when the books are closed for registrations, it is our opinion that if the registrant identifies himself to the satisfaction of the Registrar, his name will be reinstated, the meaning of which is that his name will not then be cancelled at all and he would not be deprived of the right to vote because of cancellation. On the other hand, it is our opinion that when once the name of the registrant is cancelled, he could not register during the 30-day period when the books are closed for registrations.

Op.La.Atty.Gen., 1956-58, pp. 209, 210-11.”

14. Bishop also challenged 29 Negroes for failure to report a change of address. They were notified that they were to appear at the Registrar’s office to show cause why their names should not be removed from the official voter rolls. This challenge was based on L.S.A.-R.S. 18:132. In reality, these people were being challenged for two reasons: (1) failure to report a change of address and/or (2) being incorrectly listed as residing within the Village of Tallulah. This challenge was begun when two whites presented lists of persons to purge from the rolls to Bishop. These lists contained approximately 150-200 names, presumably all black. L.S.A.R.S. 18:132 and 133 provide the basis and procedure for removing names under these circumstances. Bishop failed to strictly comply with the procedures set forth in the statutes; she did not require the affidavit specified by statute; nor did she comply with statutory provisions setting deadlines for newspaper publication; and the publication included names of persons who had previously responded to their letter of notification and had been, according to the Registrar “reinstated”.

15. It should be noted that prior to this date, Bishop had not conducted a canvass of her records, although she was aware of her statutory obligation to do so. She relied primarily upon people, both black and white, interested in the elections to present names of persons to be challenged. Thus, she relied completely upon voluntary sources.

16. Louisiana statutory and constitutional law provides for a system of absentee voting and specifies the classes of registrants who may take advantage of that system. (L.S.A.-Const. Art. VIII § 11, L.S.A.-R.S. 18:1071). L.S.A.-R.S. 18:1080 requires registrars to canvass their registration records and to direct a letter to those persons who have only voted absentee for the previous two-year period. Each person is required to substantiate his right to vote absentee. If this is not done, the registrar is to initiate the cancellation of such person’s registration. At no time prior to the April 4 primary has Bishop complied with this statutory directive to registrars.

17. The results of the election well could have depended upon application of this statutory directive:

OFFICE RACE OF MACHINE CANDIDATE TOTAL ABSENTEE TOTAL

MAYOR

H. Brown (N) 1878 28 1906

W. Johnson (N) 30 0 30

W. Sevier, Jr. (W) 1852 194 2046

MARSHAL

D. Williamson (W) 1733 183 1916

Z. Wyche (N) 2023 30 2053

BOARD OF ALDERMEN

R. Graves (W) 1710 194 1904

T. Ivey (W) 1710 190 1900

L. King, Sr. (N) 1743 28 1771

J. Storey (W) 1723 191 1914

A. Toney (N) 1783 24 1807

J. Walk