Allen v. State Board of Elections – Oral Argument – October 15, 1968

Media for Allen v. State Board of Elections

Audio Transcription for Oral Argument – October 16, 1968 in Allen v. State Board of Elections

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Earl Warren:

oNumber 3, Richard Allen, et al., appellants versus State Board of Education et al.

Mr. Amaker.

Norman C. Amaker:

May it please the Court.

This case on appeal here from a three-judge Court for the Eastern District of Virginia presents two issues of first impression in this Court: One constitutional, the other statutory.

Respecting the right of illiterates who, as a consequence of the passage of the Voting Rights Act of 1965, became eligible to vote for the first time in Virginia and elsewhere to cast a secret ballot for the candidate of their choice and to have that ballot counted for their candidate just as every other qualified voter in the state of Virginia.

That constitutional question is whether these illiterates who, by the last census, were more than 3% of the persons in Virginia over 14 years of age, can, consistent with the Fourteenth Amendment, be barred, via Equal Protection Clause of that amendment, be barred from protecting their right to a secret ballot by use of a gum sticker bearing the name of the candidate of their choice.

In face of a Virginia statute requiring that any write-in vote be in the voter’s own handwriting, the statutory issue is whether the handwriting provision of this statute which is Virginia Code Section 24-252, the text of which is at page 2 of our brief and at page 68 (a) of the appendix, is a test or device prohibited by subsection 4 (a) of the Voting Rights Act, the complete text of that section is at page 5 — begins at page 5 of our brief.

Our contention on the constitutional issue is that the Equal Protection Clause is violated, because illiterates who want to cast a write-in vote without disclosing the nature of that vote to state officials are prevented from doing so, while Virginia has provided for the protection of the secrecy of the ballot for other classes of voters.

On the Voting Rights Act issue, we assert the refusal to count the illiterate’s write-in ballots, which is what occurred here, as a denial of the right to vote, as defined in the Voting Rights Act of 1965, by using a prohibited test or device.

Now, at the threshold, because this Court postponed decision as to jurisdiction, is the question of the Court’s jurisdiction to decide these issues on this appeal?

The appeal, of course, is based on 28 U.S.C. Section 1253, in that the appeal is from an order denying a permanent injunction in a civil action required to be heard and determined by a District Court of three judges.

The argument that the case is one that is required to be heard by a three-judge Court is of course based on 28 U.S.C. Section 2281.

The argument is in our brief beginning at pages 23.

In sum, it is as follows:

First, that 28 U.S.C. Section 2281 requires a three-judge court to hear a case seeking an injunction against the enforcement of a state statute on the ground of its unconstitutionality.

That is the claim that appellants presented to the District Court here.

Second, the complaint met the formal requirements for invoking the three-judge Court jurisdiction.

The single district judge who received the application for the three-judge Court acted routinely on the application and, indeed, the three-judge Court itself never raised any question as to its jurisdiction and proceeded to decide the case on the merits of both the constitutional and the statutory issue.

Fourth, the appellees never raised any question as to jurisdiction in the District Court, and I do not understand their brief in this Court to be raising any question as to jurisdiction now.

Fifth, certainly, the constitutional question is a substantial one.

It’s one of first impression and, consequently, it has not been foreclosed by any prior decisions of this Court, and the inclusion of the statutory claim under the Voting Rights Act did not operate to divest the three-judge Court of the jurisdiction that it acquired as a consequence of appellant’s constitutional claim.

And finally, what is obvious, Virginia Code Section 24-252 is a statute of statewide applicability in Virginia, and so there is no question of dealing with a statute only local in application.

We also joined in our brief and arguments, beginning at page 28, an alternate jurisdictional ground under subsection 4 (a) of the Voting Rights Act, but it seems that the constitutional basis for the jurisdiction of the three-judge Court is sufficient and, with the Court’s permission, I’d just like to pass on to the merits.

Now, turning to the merits, I think it’s important to state a couple of propositions.

First, the Court is not being asked to rule on the question of whether the Fourteenth Amendment prevents a state from barring the use of stickers by all segments of the electorate at any time.

Now, to the extent that the state courts, a handful of them, themselves have dealt with that question, the majority view has upheld the right to use stickers and those cases are cited both in our brief and in the brief of the appellees.

Nor is the Court being asked to deal with a question of whether Virginia had the right to set a voter qualification because the effect of the Voting Rights Act on this proceeding was to enfranchise illiterates.

So, the real question before this court is one of the state’s responsibilities toward illiterates who are qualified voters with respect to two areas.

First, the preservation of the secrecy of their ballot and, second, with respect to the assurance, the certainty to them that the ballot will be counted for the candidate of their choice, thus, preserving their right to choose.

Now, these issues arise out of the following circumstances.

Norman C. Amaker:

Samuel Tucker, a well-known Negro civil rights lawyer was running as a write-in candidate for Congress in the last congressional election in 1966 from Virginia’s Fourth Congressional District.

Now, the Fourth Congressional District of Virginia is in an area that’s commonly called Southside Virginia, and it is an area in which there exists the largest Black population in the state and also the largest percentage of the state’s illiterates.

The last census indicated that persons over 14 years of age in that district, approximately 94,000, were persons who were illiterate and —

Potter Stewart:

Over — that was over 14 years of age?

Norman C. Amaker:

I’m sorry.

The figure I gave you, Mr. Justice Stewart, was for the State of Virginia at large.

The state as a whole had — in the Fourth Congressional District had 22.9% of persons over 25 years of age.

Potter Stewart:

Who were illiterates.

Norman C. Amaker:

Now, on the ballot were listed two White candidates, the incumbent, Mr. Watkins Abbott who had been, to that point, serving in the Congress for 20 years since the 80th Congress, and his opponent, the republican candidate, Mr. Silva.

Now, Mr. Tucker, who had run in the previous congressional election and who was then listed on the ballot, did not qualify in time for his name to be listed on the ballot in this election and he was later urged to run as a write-in candidate by his supporters who were in the main Negroes who wanted no part of either candidate who was listed on the ballot.

Now, they sought to maximize the vote for Tucker by inclusion of this relatively substantial number of newly enfranchised illiterates who, as the District Court found, were, and I think this language is of some significance, were registered voters but who were unable to spell accurately or to write legibly.

Now, as the Court found, just to consider the choices that confronted the persons in these situations, it seems to be there were three.

One, of course, was not to vote at all.

Second, of course, was to vote for someone whose name was on the ballot that they didn’t want.

And, third, was to disclose their vote to White state election officials who, pursuant to Virginia law, are appointees of the dominant political parties in the state in an area like Southside Virginia, an area which includes Prince Edward County which is familiar to this Court from prior litigation, an area in which they could anticipate the kinds of things that the Civil Rights Commission reports has highlighted and, indeed, the kinds of things that were the — resulted in the passage of the Voting Rights Act in the first place.

So, to solve the dual problem of being able to exercise a choice but, at the same time, trying to keep that choice hidden from the dominant White political apparatus which had opposed for decades the participation of Black members of the electorate, they used what to them was a very simple means of having printed gum stickers, just the form that I’m demonstrating here where this is plaintiff’s Exhibit 1, it’s in the record, which simply said S.W. Tucker.

The point being that the illiterate person, when he went to the polls, could simply tape, stick, put that on the ballot, fold his ballot and, in accordance with the Virginia procedure, hand it to the election official for deposit in the ballot box.

Now, the proposition that’s urged by Virginia is that the use of stickers is per se invalid and apparently, in reading the District Court’s opinion, that Court thought that this was a central issue in the case and that the Virginia legislature had forbidden their use in total.

But, I think this, of course, misses the point which is that once these persons were enfranchised by the Voting Rights Act of 1965, it became the Virginia’s responsibility to provide some means for assuring the secrecy and the certainty of the ballot among all its qualified voters.

And, in fact, Virginia has, and prior to the 1965 Voting Rights Act, made accommodations with respect to these qualities with respect to other classes of voters.

Virginia’s Constitution itself guarantees the right of secrecy of the ballot and there are several other provisions in the state’s code, all of which fixed on the importance of keeping the ballot’s secret, but Virginia has not done this in the case of these illiterates.

Rather, among all the voters who are qualified, it has set up classes of voters and discriminated among them both with respect to the question of the secrecy of the ballot, with respect to the assurance to the voter that his vote will in fact be counted for the candidate of his choice and in an additional respect too, particularly as regard to illiterates.

Virginia has made it easier for the illiterate to vote for a candidate whose name is listed on the ballot but it has made it — it is discriminated with respect to an illiterate who chooses to vote for a candidate who’s running a write-in campaign.

Abe Fortas:

But the Virginia statute does try to make an effort to ensure the secrecy of the ballot of a write-in by an illiterate, by placing the judge who presumably goes into the voting booth with the illiterate making it incumbent upon him to regard the confidentiality of what the voter does and make it a crime if he doesn’t, isn’t that right?

Norman C. Amaker:

No, that’s not entirely right, Mr. Justice Fortas.

First of all, there is nothing incumbent in the statute which does that.

What you have reference to is in a vote-in which was sent by the Secretary of the State Board of Elections to all the judges of election in October of 1965.

It’s plaintiff’s — it’s defendant’s exhibit 4 on page —

Abe Fortas:

Well, I was talking about 24-251 of the Virginia Code, but your point is that that does not apply to illiterates —

Norman C. Amaker:

That’s the point.

Abe Fortas:

To illiterates, except by virtue of the subsequent director.

Norman C. Amaker:

That’s correct.

Abe Fortas:

Thank you.

Norman C. Amaker:

The — now — so, the question is what about the illiterates who desire to cast write-in votes, as did the appellants here, and when it’s obvious that the — there, under the state’s own categories that they set up for protecting the secrecy of the vote, are the least-favored class.

Let’s just see what these differences are with respect to each of the three things which I think are extremely important here, the question of secrecy, the question of what I call certainty or the surety that the vote will in fact be cast for the person that the person intends it to be cast for, and with respect to the difficulty between voting a listed as opposed — voting for a listed candidate as opposed to voting for a write-in candidate.

Now, of course, the literate voter is fully protected on all of these scores.

Whether it’s a voting machine or whether it’s a ballot box, he can vote in absolute secrecy.

He can, himself, assure that his vote is cast for the candidate of his choice and there is no discernable problem between voting for a candidate whose name is on the ballot as oppose to writing in a name, except the small amount of inconvenience that it takes to write the name.

Now, the statute that Mr. Justice Fortas referred to, 24 Section 251, it’s reproduced in our brief at page 3, sets up other categories for voters who, in some sense, have to be — had to be singled out for special treatment, and let’s see what Virginia has done with them.

First, there’s a category of a blind voter.

Now, obviously, because the blind voter is under a special disability, Virginia has taken some steps to assure the capacity for him to make his vote effective in all these ways that I’ve indicated.

But, what it has done is to say that the blind voter can be assisted in casting his vote either a write-in or voting for someone who’s listed by a person who — of his selection.

That person, of course, can be a trusted friend.

It’s done one additional thing which it hasn’t done in the case of the illiterates.

It has provided criminal sanctions to enforce the right of the blind voter to secrecy, the right of the blind voter to make sure that his ballot is in fact cast for the person that he intended it to.

Now, the physically handicapped voter is one who can be assisted only by an election judge which he can designate, and there are criminal sanctions as in the case of a blind voter, but what the physically handicapped voter has to do then, even though he’s protected with respect to being, himself, physically able to see how his vote is cast so that he can himself determine whether in fact the vote is being cast for the person that he intend it, he has to give up some measure of his secrecy but, again, there is a sanction.

The same applies to that small, right now it’s a very small, category of persons who were born before 1904, persons who would be over 80 years of age, persons who are rather registered before 1904, but the illiterate, under Virginia law as it presently stands, must sac — for a sacrifice of his secrecy to a state official, if he chooses to vote in accordance with the election bulletin, there is no criminal sanction to enforce the — his right of secrecy as opposed to the state election official.

He has no assurance both because he’s very much like the blind voter, he can’t really see how the ballot’s being marked and because there is no criminal sanction, he has no real assurance that the vote is going to be cast for the candidate that he intends it to be cast for.

And, he suffers also a substantial discrimination with respect to his capacity to vote for a write-in candidate as opposed to a listed candidate.

Now, what we’ve called in our brief, this “crazy quilt of classification” has been condemned by this Court in a variety of other context under the Fourteenth Amendment, and we cited some of those cases in our brief.

Carrington and Rash, Rinaldi and Yeager, the Skinner v. Oklahoma dealing with the compulsory Oklahoma sterilization law.

Abe Fortas:

Excuse me, but I noticed in the bulletin sent to state elector, judges of the election which, on page 15 of your brief, there is an at least an admonition that the judge of election shall assist the voter upon his request and shall not in any manner divulge or indicate the name or names of the person for whom any voter shall vote.

Is it your point that there’s no sanction behind that?

Norman C. Amaker:

Yes, I think it’s —

Abe Fortas:

There’s no — nothing provided in the law to enforce that.

Norman C. Amaker:

There’s no sanction, and the equal protection point, of course, is that, with respect to the other classes of voters, all of whom, like the illiterates, are qualified, there is — Virginia has made some attempt.

Abe Fortas:

I understand that, but I was talking just about the — this specific question.

Does the — Is there anything in Virginia law that authorizes the State Board Elections to issue something like this and does that — if there is, does that provision in Virginia law provide any sanction?

Norman C. Amaker:

I know of none.

Virginia says that the reason for the issuance of the election voting, which is clear, was the passage of the Voting Rights Act.

Norman C. Amaker:

Virginia prior — as did several other states, prior to the passage of that, had made no provisions for illiterates at all.

It obviously, particularly as a consequence of this Court’s decision in Lassiter, felt that it was under no obligation.

So, when the Voting Rights Act was passed in 1965, Virginia, for the first time, tried to accommodate itself to the new requirement and this election — electoral bulletin is the result.

Now, that’s deficient in several respects, but the most important respect, it seems to me, in addition to the fact that there is no sanction, is the fact that even assuming the sanction the other very important consideration, very important at least in the minds of the persons who attempted to use the stickers in this election is the fact that they would nevertheless have to divulge the nature of their vote to a state election official.

So, the electoral bulletin really does not need that aspect of the problem.

The —

Potter Stewart:

What it does do, doesn’t it, is equate illiterate people or include illiterate people in that group covered by Section 24-251?

Norman C. Amaker:

I’m not sure if it — well, I think that’s what it attempts to do.

Potter Stewart:

It attempts to do that?

Norman C. Amaker:

It attempts to do that.

I think it’s interesting to note that certain terms of the last election that nobody who voted at that time knew anything about this.

This bulletin, the first time anybody heard about it was when it’s introduced in — when it was raised in a brief that was filed in the District Court in response to a motion of summary judgment.

The —

Potter Stewart:

Of course, that was about two years ago, for the election two years ago, wasn’t it?

Norman C. Amaker:

But the — yes, the election was two years ago, but the bulletin had been issued in October of the previous year, a couple of months after the passage of the Voting Rights Act.

Potter Stewart:

But, I suppose if it — if whether or not there was authority to do it is — might — probably a matter of state law and if Virginia tells us that, as a matter of state law, there’s authority to do it, then that’s probably the answer, isn’t it?

Norman C. Amaker:

No, I don’t think that’s the answer in so far as you have to give up a very substantial com — part of your secrecy to a votes — to a voting official.

Potter Stewart:

Well, so does anybody else who is physically unable to prepare his ballot without aid.

Norman C. Amaker:

Well, but —

Potter Stewart:

So, you may be right, but it’s hardly an equal protection claim except in so far as you — those people are grouped somewhat differently from blind people.

Norman C. Amaker:

Well, I think that the closest approximation, Mr. Justice Stewart, if you want to make one, is to the persons who are blind.

But, if that — but because the illiterate, like the blind person, is incapable of really seeing the ballot in terms of making sure that his wishes are carried out.

But, it seems to me, that the responsibility is broader than that.

The responsibility is to not do the very least but to do very most to assure that the ballot is secret for everyone.

Potter Stewart:

And there may be all —

Norman C. Amaker:

And, I think it’s in that respect that Virginia has failed.

Potter Stewart:

The — what Virginia has forbidden and prohibited is the use of stickers to anybody, illiterate or literate, handicapped or unhandicapped, blind or not blind.

Nobody, no voter, in Virginia can use a sticker, isn’t that —

Norman C. Amaker:

I’m not even —

Potter Stewart:

Isn’t that so?

Norman C. Amaker:

That’s not entirely sure, and I do know that there is an applic — that that is what they claim in this case, but the claim is as a consequence of the statute that’s under attack and the additional argument in our brief, of course, is —

Potter Stewart:

There’s an Attorney General’s opinion also, isn’t there?

Norman C. Amaker:

Well, they’ve raised the Attorney General’s opinion, whatever effect that has, the Virginia statute that we’re challenging is one that, obviously, was suspended by the Voting Rights Act of 1965 and the — and they so indicate.

So that, I’m not entirely sure that it’s correct to state that Virginia has prohibited the use of stickers, but I — but, if you recall, I did not cast the issue in those — in that narrow focus.

What — what the submission is that the Court is being asked to fix on the question of whether Virginia, consistent with the Equal Protection Clause, has fulfilled its responsibility to make sure that these illiterates have the right to a secret ballot and also have the right to somehow be asserting that when they cast that vote, where the list for — whether for a listed candidate or for a write-in candidate, that that vote will be effective because this is the thing that was very, very uppermost in the minds of the person — of the appellants here.

I have about three minutes which I’d like to reserve for rebuttal.

Earl Warren:

Very well.

Mr. McIlwaine.

R. D. McIlwaine, III:

Mr. Chief Justice and may it please the Court.

As counsel for the various Virginia election officials in this matter, I should like to attempt to establish at the outset, that, if I may, just what this case involves and, perhaps, the best way to accomplish that is to draw the Court’s attention to the opening paragraph of the opinion of the Court below which is on page 67 (a) of the appendix and which contains all of the operative facts, out of which this case arose.

In four brief sentences, the Court below has stated the entire case presented by the plaintiffs in the Trial Court.

It was to the effect, in sentence one, that plaintiffs are registered voters who are unable to spell accurately or write legibly, who attempted to cast a write-in ballot in the 1966 Congressional Elections in the Fourth District of Virginia.

Second, each one attempted to do this by pasting on the official ballot a sticker in which the name of the write-in candidate had been printed and voting for the name printed on the sticker.

Third, these ballots were not tabulated in the official returns for the write-in candidate.

The fourth sentence begins “upon these undisputed facts, the plaintiffs seek a declaratory judgment that rights secured to them by the Fourteenth Amendment of the Constitution of the United States and the Voting Rights Act of 1965 have been denied.”

Now, we submit that the only question that can be raised by that set of facts is whether or not the refusal of the Virginia election officials, pursuant to Virginia law, to count these votes which were cast by means of labels or stickers or pasters violated some right secured to illiterates in the Fourth District of Virginia, a right secured by the Fourteenth Amendment or by the Voting Rights Act of 1965.

We know full well that the Fourteenth Amendment to the Constitution of the United States does not secure that right to anyone else in the United States.

The Fourteenth Amendment per se does not even secure to an illiterate the right to vote at all, much less to select the means by which he will vote.

And, the cases are perfectly clear that the matter of whether or not stickers and pasters shall be permitted as an appropriate means of voting is a matter to be determined by each individual state and regardless of whether the state permits it or rejects it.

Neither determination of that question is violative of the Fourteenth Amendment, the case in the Seventh Circuit and the case of Morris versus Fortson in the recent case in Georgia, since the enactment of the Civil Rights Act clearly settles this matter.

So, the assertion of the plaintiffs on this point is that, of all the people in the United States, they alone, as illiterates, have a constitutional right to vote by means of stickers and pasters.

Thurgood Marshall:

Mr. McIlwaine, how could the vote be secret otherwise?

R. D. McIlwaine, III:

Your Honor, I do not know how it could be secret otherwise, but I’m not — but I am of the opinion, as was the lower Court, and certain that they are not entitled to a secret ballot.

Thurgood Marshall:

I was just wondering if the elected official wrote-in the name of the extra person and then the guy, the illiterate person, took it in the booth.

He could tell the difference in handwriting and printing.

He could then mark the ballot.

R. D. McIlwaine, III:

He could mark the ballot by the name of the individual.

Well, he could do that under the Virginia law.

He is simply requested to furnish him assistance and to ensure that his ballot is marked in accordance with the way he wants it.

There’s no requirement that he must —

Thurgood Marshall:

No my point — I beg your pardon.

My point is all the official does is to write-in the name of Joe Douglas, and then the voter takes that ballot in, by himself without the official, and puts an X, which he can do even in a form of a printed name or the handwritten name.

R. D. McIlwaine, III:

Yes.

Thurgood Marshall:

By himself without anybody seeing what he did.

R. D. McIlwaine, III:

That could be done, if Your Honor please.

Of course, the secrecy of his ballot will be compromised in any event, to the extent that he carries the ballot to an election official and asks him to write Joe Douglas’ name on it.

Thurgood Marshall:

Well, then we get to the point, how can he get secrecy of the ballot and his right to vote at the same time if he’s illiterate?

R. D. McIlwaine, III:

Well, Your Honor, I do not understand that he can and I do not understand that he is required or entitled to the complete secrecy of his ballot either by the Fourteenth Amendment or by the Voting Rights Act.

As matter of fact, this is to the contrary.

Thurgood Marshall:

But, isn’t he entitled to it by the Constitution of Virginia?

R. D. McIlwaine, III:

Only to the extent that the regulations issued by the General Assembly of Virginia, the statutes pursuant to Section 36 of the Virginia Constitutions, states that in order to obtain the uniformity in election, the General Assembly of Virginia shall enact laws governing the conduct of elections.

And, Virginia has enacted those.

Thurgood Marshall:

Where is the requirement for secrecy?

I thought that was in the Constitution?

R. D. McIlwaine, III:

That is also in the Constitution, Your Honor, in Section 26.

Thurgood Marshall:

Well, that’s required of everybody but the illiterate.

R. D. McIlwaine, III:

No, sir, it would not apply to anyone who is physically handicapped or educationally handicapped.

As the cases made clear, the secrecy of the ballot of the physically handicapped or the educationally handicapped must, to some extent, be compromised.

There’s no other way you can do it.

Byron R. White:

Except, that you treat the blind differently from the illiterate.

R. D. McIlwaine, III:

If Your Honor please, in that connection, two things.

Every state treats the blind or a number of states treat the blind differently, and every state has different methods of solving the problem, what you’re going to do with the physically handicapped or the educationally handicapped.

Byron R. White:

Do you think the Equal Protection Clause was a substantial question in this case or do you — are you objecting the jurisdiction of the three-judge court?

R. D. McIlwaine, III:

No, sir, I — we do not object to the jurisdiction of the three-judge Court —

Byron R. White:

Because of the protection.

R. D. McIlwaine, III:

With respect to the question of whether or not they have a right to cast that ballot by means of stickers or pasters, which was the only operative fact in this case.

Byron R. White:

So, there was a substantial equal protection Clau — claim stated to convene a three-judge Court for?

R. D. McIlwaine, III:

With respect to those facts, yes.

I mean, I think in viewing the complaint, if Your Honor please, the assertion that the Virginia statute as it then stood forbid them to cast ballots by this method and the prayer for relief which attempted to enjoin it to the extent that it purported to require the voter to cast his write-in vote in his own handwriting was sufficient for the district judge in scanning that complaint to think that the question was not entirely frivolous and to call for a three-judge Court.

Byron R. White:

And the only issue in lower Court was the validity of the statute requiring handwriting?

R. D. McIlwaine, III:

That — with respect to stickers or pasters on the ballot, Your Honor.

In other words, until this case was argued here, I did not know that this was a race case.

I don’t find the word Negro in the complaint.

I don’t find it in the Court’s opinion.

It is not — it is a simple question of illiterates.

In the lower Court, it was simply argued that these people who were represented were functionally illiterate people without regard to race or color.

Byron R. White:

Well, was Section 4 of the Voting Rights Act involved in the lower Court?

R. D. McIlwaine, III:

No, sir.

The only thing in the Voting Rights — the only argument made on the Voting Rights Act was the test or device proposition that, in requiring the individual to cast the ballot in his own handwriting, that constituted a test or device.

Byron R. White:

And was suspended.

R. D. McIlwaine, III:

And was suspended.

But, that was admitted, if Your Honor please, so there was no case or controversy on that in the lower Court.

Byron R. White:

And there still isn’t.

R. D. McIlwaine, III:

There still isn’t.

Byron R. White:

That that was a suspended test.

R. D. McIlwaine, III:

It was, yes.

Byron R. White:

And the statute then was suspended?

R. D. McIlwaine, III:

That is correct.

And, within a week after the enactment of the Voting Rights Act of 1965, the State Board of Elections and the Attorney General of Virginia, together, issued a bulletin.

Actually, it was issued of course by the State Board of Elections which flatly states, which Your Honors will find in the record, that the Voting Rights Act had superseded, in so many words, the Virginia statute requiring people to register to vote in their own handwriting, and directing the registrars in Virginia to register people who were illiterate and couching that regulation almost verbatim in the form of the Civil Service Regulation issued to federal examiners to guide them in the method by which they would enroll illiterate voters in states affected by the Act.

Then, three weeks before the election, another bulletin was issued in which the election officials were instructed to assist illiterate voters in casting their ballots and broadening the provisions of the Virginia statute, which adhered for limited assistance only to the physically handicapped, to include the illiterate.

Abe Fortas:

Are you going to address yourself to the memorandum filed by the Solicitor General?

R. D. McIlwaine, III:

Only in the few remaining minutes of my argument, I had intended to touch upon it, Your Honor, but I’m perfectly content to come to it now.

Initially, significant in respect to that memorandum is the fact that the Solicitor General does not have one line in it, which even contains a hint that he was even remotely or conceivably supporting the position stated by the appellants in this case.

Abe Fortas:

Well, apart from that, what he says is that, as I understand it, is that this is a manner and, under the Voting Rights Act of 1965, should’ve been first presented to the Attorney General.

R. D. McIlwaine, III:

That is correct and we have framed our response to that both in our memorandum submitted at the time and in our brief that it cannot possibly be.

Abe Fortas:

Do you challenge the — do you contest the point that that issue is before us or do you — is it your position that that issue is not properly before us?

R. D. McIlwaine, III:

Well, of course, I take the position, Your Honor, that the issue is not properly before you because it was not raised as an issue in this case and was not passed upon by the Trial Court.

And so, that issue is one injected at this, the ultimate level of appellate review, by the Solicitor General.

Of course, it is before the Court in the sense that the Court invited the Solicitor General to express his views, and he has.

R. D. McIlwaine, III:

And, we do not object to the — to filing a response to it or to stating our position.

The only thing we objected to is if —

Abe Fortas:

So, you don’t raise the jurisdictional question.

R. D. McIlwaine, III:

No, sir.

What we do object to this, and on this we wish to be perfectly clear, we do object to the Solicitor General trying to turn this case which was a straight case to involving a question of whether or not a person could vote by means of a sticker or paster into a case in which a complaint had been filed alleging that election officials had engaged in discriminatory practices and proposed to continue in those practices unless an injunction was issued under the Voting Rights Act of 1965 requiring them to register illiterates or to vote or to otherwise give up practices which it obtained prior to the enactment of the Voting Rights Act of 1965.

None of those practices have ever obtained in Virginia.

Virginia has never taken the position that race as an irrelevance to a citizen’s right to vote.

We took the position for years that race had a great deal to do with a right of a person to attend a school or to marry.

Those issues had been litigated and decided by this Court, but Virginia has never taken the position.

Abe Fortas:

Yes, but how —

R. D. McIlwaine, III:

Nor, race has any relation to that and we do not — we object most extraneously to any attempt to remand this case to the District Court to enable the plaintiffs to make a new case of it at the district level.

Abe Fortas:

Well, however that may be, the Solicitor General suggests to this Court that the bulletin issued by the Board of Elections constitutes a practice or procedure with respect to voting different from that enforced or effect on November 1, 1964.

Those were the words of the Civil Rights Act and, therefore, the solicitor urges that this could not be used, that that Director with the Election Board could not be used without first being submitted to the Attorney General of the United States District Court for the District of Columbia.

R. D. McIlwaine, III:

Yes.

Abe Fortas:

So that it may be that we have to consider the point of law that he raises one way or another, that is to say whether this is or is not, in practice or procedure with respect to voting, different from that enforced on November 1, 1964.

And, if it is, perhaps we have to consider whether its further use should be enjoined pending the clearances provided by the Voting Rights Act of 1965.

R. D. McIlwaine, III:

Well, if it — of course, the Solicitor General does make that assertion, Mr. Justice Fortas, and, of course, the Court can consider it.

It is not a part of the record brought up on this appeal.

It is not a question raised by the jurisdictional statement.

It is a question inserted by the Solicitor General in this Court.

Now, envisioning the possibility that the Court would consider the argument, we have stated why we feel that it cannot possibly be correct that the bulletins issued in this case were a practice or procedure within the meaning of Section 5 (a) and, it is so obvious to us that it cannot be, that we do not see how there can be two sides of the question.

If it was a practice or procedure, it would mean that when the Voting Rights Act became effective in Virginia on August the 7, 1965, there was nothing that the Virginia election officials could do about it, except continue to violate it.

This bulletin was issued within a week of the Voting Rights Act becoming effective and it told the Virginia election officials that the Voting Rights Act was then enforced in Virginia and, despite the provisions of Virginia law which do not permit illiterates to register, you are to begin to register them.

Now, under the Solicitor General’s argument, we couldn’t do that until we had taken that regulation and submitted it to the Attorney General.

Abe Fortas:

That’s right, yes.

R. D. McIlwaine, III:

Now, suppose we had never written the regulation.

Abe Fortas:

It’s the way it puts it.

R. D. McIlwaine, III:

Suppose we waited ten months to write it, what is suppose to happen to the Voting Rights Act of 1965 in Virginia in the interim if we cannot enforce a bulletin which says these instructions implement the Voting Rights Act of 1965?

The Voting Rights Act has superseded the provisions in Virginia laws which forbid illiterates to register and forbid them to vote, and you are now required by this prevailing supervening federal law to register illiterates.

We did that even before South Carolina against Katzenbach was filed in this Court and it prevailed, and illiterates were being registered in Virginia and were being voted in Virginia in contravention of Virginia law while South Carolina against Katzenbach was being argued in this Court.

R. D. McIlwaine, III:

And, as a matter of fact, we issued those bulletins in 1965.

We passed through the general election of 1965 without a murmur.

We continued for another year.

We have still had no difficulty with it, until the question of voting for S.W. Tucker by means of a sticker or paster in the 1966 Congressional Elections arose.

Thurgood Marshall:

Mr. McIlwaine, you’ll agree that part of the Civil Rights Act of 1965 was vitally concerned with illiterates?

R. D. McIlwaine, III:

Yes, Your Honor.

Thurgood Marshall:

Do you agree that the State — the Commonwealth of Virginia did take action in the form of a memorandum dealing with the question of how illiterates may vote after the Act?

R. D. McIlwaine, III:

Yes, sir.

One, how they may register and, another, how they may vote.

Thurgood Marshall:

And you still say that that — the Attorney General has nothing to do with that?

R. D. McIlwaine, III:

The Attorney General of the United States?

Thurgood Marshall:

Yes, sir.

R. D. McIlwaine, III:

I say that they are not a regulation under Section 5 (a) which he is required to approve in advance.

I do not say he has nothing to do with it.

The Attorney General has brought a number of suits.

If he thinks that these are improper regulations, he can bring a suit to establish it.

Thurgood Marshall:

Do you say that an action of the Commonwealth of Virginia, one of the states included under the Act, takes action subsequent to the Civil Rights Act involving the right to vote of illiterates or the method of permitting illiterates to vote is not the type of action which should have been submitted to the Attorney General of the United States?

R. D. McIlwaine, III:

That’s correct.

That is our position, and we state that the propositions under the facts of this case that if that is so, then there were a number of the illiterates voted at the 1965 election who would not have been if we had been required to submit that matter to the Attorney General and wait for 60 days for him to express his —

Thurgood Marshall:

But that’s not before us, is it?

R. D. McIlwaine, III:

I beg your pardon?

Thurgood Marshall:

That’s not before us?

R. D. McIlwaine, III:

The whole question is not before you, Your Honor.

Byron R. White:

So, if the Virginia had put out a regulation that illiterates may hereafter vote and they may vote by a sticker but no other way, you would say that’s implementing the Voting Rights Act and would not need to have been submitted to the Attorney General.

R. D. McIlwaine, III:

No, sir.

I submit that if that is put out, of course, I submit that, at any time after the passage of the Voting Rights Act, the legislature should amend its election laws.

They are, under the Voting Rights Act, superficially at least required to submit them to the Attorney General and, as the Attorney Gen — Solicitor General admits, a number of them are and they are permitted to be enforced even though they have not been officially avowed or disavowed by the Attorney General.

But, I am submitting to Your Honors that these instructions which were issued immediately after the Act became effective, implementing the Act were not such instructions as were required to be submitted to Solicitor General.

The — otherwise, it would mean that the Solicitor General was empowered to suspend the operation of the Voting Rights Act for a period of 60 days or that the election officials were empowered to do it simply by not submitting anything to the Solicitor General and say, “we’re sorry, we can’t help you.

When a process of getting together a regulation for the registration of illiterates and the voting of the illiterates.

R. D. McIlwaine, III:

When we get it together, there’s still nothing we can do.

We’ve got to submit it to the Solicitor — to the Attorney General.

After that, we’ve got to wait 60 days and, if election comes up in that time and we haven’t heard from him, you won’t be able to vote because we can’t do it.”

Byron R. White:

I suppose the only alternative to that would be that somebody should have authority meanwhile to prescribe some way for illiterates to vote.

R. D. McIlwaine, III:

Somebody should have the authority to obey the federal — the Voting Rights Act of 1965.

That’s the way we viewed it in Virginia, if Your Honor please.

That’s why we put out the regulations.

Byron R. White:

I suppose any District Court might be able to do better than these authorities.

R. D. McIlwaine, III:

Well, they, so far as Section 5 (a) of course, if that’s kind of a regulation, it’s got to come to the District Court of the District of Columbia.

Byron R. White:

Well, I know, but pending that.

R. D. McIlwaine, III:

I don’t understand that any other District Court is open for that question of the validity of a regulation if it is enforced —

Byron R. White:

You mean, Mr. McIlwaine, that if it’s something that must be submitted to the Attorney General, then there’s nothing any Court can do meanwhile to permit illiterates to vote.

R. D. McIlwaine, III:

Unless they could, of course, get immediate action in the United States District Court for the Dis —

Byron R. White:

I know, I’m assum —

R. D. McIlwaine, III:

District of Columbia.

Byron R. White:

In the District of Columbia.

R. D. McIlwaine, III:

Yes, sir.

Byron R. White:

Isn’t the 60-das submission a prerequisite to the lawsuit or are they alternatives?

R. D. McIlwaine, III:

No, I think it’s alternatives.

Byron R. White:

Alternatives?

R. D. McIlwaine, III:

Yes, and of course the Solicitor General could approve or he could wait 60 days.

The law reads that if you do not — if there is no objection filed by the Solicitor General or the Attorney General within 60 days, then it may be put into effect.

Now, there had been number of cases, gentlemen, in which this issue has been raised in Louisiana, in Georgia, in Alabama, and in Mississippi.

In each of those cases, the relief granted by the District Court sitting in those cases, so far as illiterates are concerned, has been to require the local election officials to assist the illiterates, and specific provision has been made.

None of those cases permit anyone other than an election official to assist the illiterate in casting his vote even though, in those states, the physically handicapped or the blind may be helped by a member of their family or a person of their choice.

In the cases which we have catalogued in our brief, United States against Mississippi, Morris against Fortson, United States against Executive Committee, and United States against Louisiana, the relief granted by Federal District Courts under the Voting Rights Act of 1965 is limited to permitting only election officials to aid the illiterate who had been enfranchised by the Voting Rights Act of 1965.

Specifically, in United States against Louisiana, that was true, and the Court added that nothing contained in this order shall affect any of the state provision relating to the casting of votes by the physically handicapped or the blind.

Now, at that time, the physically handicapped and the blind were not permitted to be aided by election officials but could take a friend of their choice if their blind or, if they were otherwise physically handicapped, a member of their family.

Yet, when the decree was entered in that case, assistance to illiterate voters was limited by the Court solely to election officials aiding the voters.

And, that is true in each of the four cases which are mentioned in the Solicitor General’s memorandum and which we have analyzed in our brief.

R. D. McIlwaine, III:

Now, we cannot believe that the Attorney General of Virginia is required to outdo Judge Wisdom, Judge Christenberry, Judge Bell or the judges of the Fifth Circuit and go further and say, and what’s more in Virginia you may cast a vote if you are illiterate by means of a sticker or paster.

Abe Fortas:

But, Mr. McIlwaine —

R. D. McIlwaine, III:

It has never been proved.

Abe Fortas:

Mr. McIlwaine, maybe that question is not before us.

Maybe we’ve got two possibilities before us.

One is to direct their selves to the constitutionality of the requirement that the vote be cast in the voter’s own handwriting.

Or two, that we have to consider whether the Voting Rights Act requires that this new plan, this new arrangement, be presented to the Attorney General.

But — but, I — it seems to me, it’d be quite arguable that we cannot now reach the question of the legality of that alternative method if we decide that the method should have been presented to the Attorney General in the first instance.

R. D. McIlwaine, III:

Well, if the Court decides that that alternative is the problem, it would of course then, I assume, delay consideration of the other questions until the matter had been — and perhaps the Court would remand it to the District Court and with instructions to —

Abe Fortas:

Well, how if we didn’t?

I should think we would have to delay it, though, don’t you agree?

R. D. McIlwaine, III:

Yes, Your Honor, but you would not delay reaching the question of whether or not Virginia’s requirement that the voter vote in his own handwriting is constitutional because, of course, that is not a requirement any longer.

You don’t reach the requirement because it isn’t there.

Nobody is required to insert a write-in vote in his own handwriting if he is physically or educationally handicapped.

That is the very statute that the Attorney General said had been superseded and could no longer be enforced.

So that, you will never reach that question, unless of course it is to be fabricated because this case was one in which the plaintiffs came in and said, in effect, “your statute requiring a write-in vote to be cast in the voter’s handwriting has been superseded.”

And, our response was “you’re quite right, it has, and we said so over a year ago in a bulletin.”

Now —

Thurgood Marshall:

Mr. McIlwaine.

R. D. McIlwaine, III:

Where is the case of controversy?

Thurgood Marshall:

Has the question ever come up about the status before in Virginia?

You mentioned the other states and you’ve got in your brief where it’s come up.

R. D. McIlwaine, III:

Yes, Your Honor.

Thurgood Marshall:

Has the validity ever been brought up in Virginia at all?

R. D. McIlwaine, III:

The validity of what?

Thurgood Marshall:

Stickers.

R. D. McIlwaine, III:

Stickers?

No, sir.

Except in the opinion of the Attorney General.

Virginia statutes require ballots which are printed.

R. D. McIlwaine, III:

If people want to mark their ballots, mark them in a certain way, that’s mandatory.

Assistance must be given in a certain way.

That’s the only provision made for assistance.

Byron R. White:

Sticker voting is not permitted?

R. D. McIlwaine, III:

Sticker voting is not permitted not because there is a statute that says that it’s not permitted, but because the statute prescribed a method by which ballots shall be marked and assistance should be given —

William J. Brennan, Jr.:

Well, tell me, Mr. McIlwaine, what do you think is before us for decision in this case, not what the plain — what the appellant urges or what the Solicitor General has suggested, but what do you think is before us for decision?

R. D. McIlwaine, III:

The only thing that I think can possibly be before Your Honors for decision is whether or not a Fourteenth Amendment to the Constitution of the United States per se or the Voting Rights Act of 1965 guarantees anyone the right to vote by means of a sticker or paster in violation of the state law to the contrary.

That’s the only thing I think —

William J. Brennan, Jr.:

Or you haven’t quite phrased, or have you, that — is that the way we’re going to read the question as you submitted it?

R. D. McIlwaine, III:

I — yes.

William J. Brennan, Jr.:

You have it as the section as implemented by the regulations violated the Fourteenth Amendment or the Voting Rights Act.

R. D. McIlwaine, III:

Yes, sir, because that, as I say as implemented by the regulation, the illiterate is now granted the same right to assistance as the physically handicapped and, therefore, you have to read the statute as implemented by the regulations.

William J. Brennan, Jr.:

But, I gather, your thought that the question only of use of stickers be —

R. D. McIlwaine, III:

That is correct.

William J. Brennan, Jr.:

Being before us, that isn’t necessarily to only in the case of illiterates —

R. D. McIlwaine, III:

Well, it’s —

William J. Brennan, Jr.:

It’s taking my view by some —

R. D. McIlwaine, III:

It’s only — only in illiterates because that’s the only class represented here, Your Honor.

The physically handicapped are not even in here, nor any racial classifications in here, only the illiterates, as a class, is the only class that is here.

Byron R. White:

So, but the question — I take it, you say that it’s the same question if you put it this way, that the question is whether or not it’s unconstitutional for Virginia to permit illiterates to vote with the help of election officials.

R. D. McIlwaine, III:

Only, yes, or without the means of stickers or pasters because that, you see, is the operative factor of this case.

Byron R. White:

You think they’re the same question.

R. D. McIlwaine, III:

The action which caused this case to arise, Mr. Justice White —

Byron R. White:

Was turning the opposition before you —

R. D. McIlwaine, III:

Was the fact that these votes were cast in this manner and were not counted.

Byron R. White:

I understand.

R. D. McIlwaine, III:

And, the action that’s challenged here is whether or not that failure of the election officials to count these votes cast by means of stickers or pasters violates some rights secured to these plaintiffs by the Equal Protection Clause or the Voting Rights Act.

There’s nothing suggested that anybody else is permitted to vote by means of stickers or pasters.

They’re not.

There’s no question of discrimination here in that respect at all.

R. D. McIlwaine, III:

I would simply point out there is — that there is no hesitancy on the part of Virginia so far as the persons who may render assistance are concerned, with respect to the individual plaintiffs in this case, and the most recent publication of the State Board of Elections containing the instructions for the coming November 5 election, have again been broadened, since this case, to permit the illiterate to be classified with the blind and either request in assistance of a judge or election or to take in a person of his own choosing.

Until this case got to this Court, we didn’t know that there was some issue of the power structure or some racial overtone to the case which was certainly not clear in the pleadings and certainly not clear in the Court’s opinion, but the most recent regulations promulgated, published by the State Board of Elections, have been broadened to permit the illiterate to be assisted by either a judge of election or a person of his choice.

Potter Stewart:

Of his own family — is that new regulation in —

R. D. McIlwaine, III:

That is new regulation.

Potter Stewart:

Have you submitted that Mr. —

R. D. McIlwaine, III:

No, it was just published last week, Your Honor.

I have copies which I can make and hand it to the clerk.

It is on page 8 of the —

Earl Warren:

Would you send it to us?

R. D. McIlwaine, III:

Yes, I’ll be happy to, Mr. Chief Justice.

My time is up, I think.

Earl Warren:

Mr. Amaker.

Norman C. Amaker:

With my few remaining minutes, the only response to this most recent revelation is that the bulletin — the change in the bulletin is one which, obviously, was a time to anticipate, apparently, the presentation of the case here and there’s nothing which, apparently, bars Virginia from changing the statute or changing the bulletin as it — to its form or way.

The election bulletin is, after all, only a regulation by the election officials.

There is just one small misstatement of fact that I’d like to call the Court’s attention to, and that is that, in one of the cases cited by Mr. McIlwaine in which the District Court to require that assistance be given to illiterates, Morris v. Fortson, it was clear that the assistance could be given by persons other than state election officials.

The point with respect to the memorandum by the Solicitor General raising the Section 5 question seems to me to be resolved in this fashion, that assuming the regulation had been submitted to the Attorney General and the Attorney General had approved it, we would have this case.

Assuming that he had rejected the memorandum, you would have a situation where, as everyone agrees, Section 24-252 was suspended.

And therefore, you would have precisely the same questions that are presented on this record.

That is, in light of that fact situation, whether the right to a secret ballot could be preserved by some means and whether the means actually adopted in this case was a reasonable means to achieve that end.