Hadnott v. Amos – Oral Argument – October 18, 1968

Media for Hadnott v. Amos

Audio Transcription for Oral Argument – January 21, 1969 in Hadnott v. Amos

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Earl Warren:

647, Sallie M. Hadnott et al. versus Mabel S. Amos et al.

Mr. Morgan, you may proceed with your argument.

Charles Morgan, Jr.:

Mr. Chief Justice, may it please the Court.

We have here behind us a copy of the Alabama ballot as it appears in the record.

This is a reproduction from the record, exhibit G to the Amos deposition.

You’ll notice on the seventh columns on the ballot there’re eight, some independent candidates over here.

In Column 1 you have eight electors only.

Column 1 is the Alabama Independent Democratic Party, a political party that was established that in a certificate of incorporation states the party shall have no members and secondly states in its certificate of incorporation, the party shall ran no candidates for office for local state or national office except presidential elector.

This party has been described by defendant Amos.

Defendant Amos is herself a presidential elector candidate on Column number 3 as a party within a party.

By voting on Column number 1, a voter cast his ballot for the Humphrey-Muskie ticket for president.

By voting Column number 3 he votes the straight Democratic ticket in the State of Alabama and thereby cast his ballot for George Corley Wallace for president.

Potter Stewart:

How many electors are there in Alabama?

Charles Morgan, Jr.:

Ten.

Potter Stewart:

Ten.

Charles Morgan, Jr.:

Ten electors and of course —

Potter Stewart:

And they are only eight there in Column 1.

Is that right?

Charles Morgan, Jr.:

No sir, they are 10.

Potter Stewart:

Are there 10?

Charles Morgan, Jr.:

Yes, sir.

There are 10, and this column, in Column 3 and in Column 6 and also Column 5 which is the Republican column.

Now in Alabama a voter if he votes a straight democratic ticket votes for all the local nominees the Democratic Party right down through O’Connor and others all the way down the line.

If he votes for straight Republican ticket, he votes of course with Mr. Nixon and Mr. Agnew and all the way down the line he votes for the Republican nominees.

If he votes this party’s ticket, the National Democratic Party of Alabama were appellants here, he votes a straight party ticket for electors pledge to Humphrey-Muskie unless disavowed by it which has not occurred.

He also votes a straight party ticket down the line on those counties upon which candidates appear for this party.

Potter Stewart:

And now those electors in that county are not the same electors for Humphrey-Muskie that are in Column 3?

Charles Morgan, Jr.:

No Humphrey-Muskie here in Column 3.

Potter Stewart:

In Column 1.

Charles Morgan, Jr.:

That’s right.

Charles Morgan, Jr.:

In Column 1, no they’re not.

We have entered into a stipulation with the chairman of this political party.

And under Alabama law, a political party can replace vacancies or refill vacancies with others.

And in the event Section 148 of the Alabama statute, Title 17 which prohibits people from appearing on a more than one ballot envelope in the same election.

That in the event that’s stricken down these electors will be removed by the party will resign.

And these electors will then move over so there’ll be no dilution of the Humphrey-Muskie vote in the state.

William J. Brennan, Jr.:

But may they still be aggregated?

Charles Morgan, Jr.:

They can be if the court, you know, allows that is a former remedy in the District Court if it’s so instructed here.

There’s no physical problem with that —

William J. Brennan, Jr.:

But we’ve got these papers so recently.

This charge of this time I must say you don’t have at hand but I understood there are some Alabama law that prohibits aggregating.

Charles Morgan, Jr.:

Well that’s in Section 148 simply prohibits them appearing on the ballot twice and that is the principle statute as I understand that would prevent them from being aggregated.

William J. Brennan, Jr.:

I see.

Charles Morgan, Jr.:

Now that statute coupled — a week it became that statute with this particular election is certainly unconstitutional on this application.

It may not be unconstitutional on it’s face, two states have held that it is, one state of New York of course has held that in almost a pre-close course of the Voting Rights Act has said that a party may nominate whoever it pleases, if they don’t withdraw that’s all right.

Potter Stewart:

Mr. Morgan, just so I can be just clear in my mind trying to get the names and numbers of the players here, which group is it that’s filed the amicus brief with us?

Charles Morgan, Jr.:

Well, not really.

What you have there is an intervention petition for citizens from the local citizens for Humphrey-Muskie.

In there, you will find the name of the intervention petition of one of the three co-chairman David J. Vaughn.

David J.Vaughn is the chairman of this political party —

Potter Stewart:

Edward F. Malden.

Charles Morgan, Jr.:

Edward F. Malden says that these electors should be removed.

These should be left on the ballot.

David J. Vaughn who was chairman of this party says at the event that statute is brought down are inapplicable.

These electors would not withdraw a place on this ballot here.

He said that?

Charles Morgan, Jr.:

Yes.

Mr. Vaughn says, who is chairman of this party has represented in court, its’ in the record, that these parties will not withdraw these electors if by it’s on the ballot under this ticket.

I see.

Charles Morgan, Jr.:

Now you have a second provision of Alabama statutes which says that a person has the right to vote a straight party ticket.

Charles Morgan, Jr.:

Two provisions of law that provide that, this is a Voting Rights Act state of course.

And it’s been determined as of November the 1st 1964 to be such.

I don’t think that it’s too difficult to say that this ballot is fairly confusing, almost a test or device to illiterate person.

If an illiterate person walks in he can flip this lever here then he has the one roll across this ballot finding whoever he wants.

If these candidates are not on the ballot he will find few of any Negroes, perhaps one or two running for constable in a couple of counties.

This ticket under Column 7 has of course a substantial number of Negro voters and candidates on it.

They are not in every county in the State of Alabama.

There are not very many Negroes in some counties in the State of Alabama.

We started with the sort of — call it 23 counties, it was win or down one way or another to 17 now.

We believe that under the Voting Rights Act the Fifteenth Amendment and otherwise, folks have a right to vote a straight party ticket.

And they have the right to have candidates on the ballot.

We also believe the record in this case clearly discloses the motive and the reason for the disqualification of this party in Column number 7.

Now this is not a separatist party, this is an integrated party.

Mr. Morgan —

Charles Morgan, Jr.:

Yes, sir.

So your trusted ballot is subject to bargaining, is there any usual in this case where everything about this ballot are standard are back with these procedures which requires you to under Section 5?

Charles Morgan, Jr.:

I take it only on ancillary way we contest the other —

You’re making an argument.

Charles Morgan, Jr.:

Well, I’m not making it directly but I want to tie it back in a moment to the Garrett Law and under which we’re disqualified and the Corrupt Practices Act under which they stay we’re disqualified I can’t quite understand that myself and to tie this back to that to show the confusing nature of the ballot and move it forward so that the whole procedure looks like a test or device on serving those statutes are.

Now what we contend with respect to this ballot is that in the event this ticket’s not on the ballot, the State Democratic Party which will be carried by the Wallace electors if it all would then have propped into the political system from which Negroes have been excluded for a hundred years the Negro vote.

And we think the record amply discloses the way that this whole procedure came about.

Going back at some points.

Charles Morgan, Jr.:

Surely.

What was the form of order, the interim where you initially got on the three-judge court?

Charles Morgan, Jr.:

Temporary restraining —

That has happen evidently.

What does that suppose to mean on this ballot that is not there now?

Charles Morgan, Jr.:

Nothing, it put us on the ballot.

It put this Column 7 on the ballot that’s what it did.

The way that it is?

Charles Morgan, Jr.:

Yes, sir.

Well, if you were entitled a list the result of the shifting in Column 1, electors are going to be Column 7.

What would this mean if you only (Inaudible)?

Charles Morgan, Jr.:

I really think not.

You see it’s very confusing that the Secretary of State stated herself.

She didn’t quite know when was the last day she can print ballots in depositions.

No but I think you it would not have to be done?

Charles Morgan, Jr.:

I think that —

If that’s the way she wanted, then you will get it.

Is that the kind of change that will have to be made?

Charles Morgan, Jr.:

I think that the — if the ballots are already printed, that would be the case but I don’t think the ballots are printed.

Oh, what happened if we were to putting you on the ballot sheets, are there any printed ballots?

Charles Morgan, Jr.:

They may have printed absentee ballots.

But the state would know more about that than I do but I don’t believe that they have.

I believe that they are still waiting right now.

Well, so it’s either new ballots or for the first time, if you prevail, ballots were shift from the Column 1 electors going to Column 7?

Charles Morgan, Jr.:

Yes sir and if that doesn’t happen, of course we want this Column 7 electors to stay on there as they are now.

The vice president and Mr. Muskie have made no election not to appear on the ballot under this ticket.

Mr. Wallace did that —

Well, does that mean ballots if it just waited separates up to the elector then of course the Humphrey-Muskie ticket whether this is (Inaudible)?

Charles Morgan, Jr.:

Yes, sir in Alabama it does.

It would put him in a —

But you can’t aggravate the both —

Charles Morgan, Jr.:

Because they’re different people, because the candidates’ names don’t appear on the ballot themselves.

But what we contend is of course that that can be done and that it can be done quite simply and easily.

And it could be done with an order in order to aggregate the votes and in the rights we have, we would be willing to waive to go over that way.

But we do think that certainly illiterate voters have a right to walk in and vote the straight party ticket if literate voters do and if Republicans and —

We need to base it —

Charles Morgan, Jr.:

No, not really.

They’ll be able to vote a straight party.

I’m speaking of maximum.

Charles Morgan, Jr.:

Well it’s —

Four years only of the party you represent.

Really what they want that they are supposed to be able to vote straight party?

Charles Morgan, Jr.:

That — well they need two things.

They first of all need the right to vote a straight party ticket and then secondly they need somebody to vote for.

And the Secretary of State hasn’t given them that.

What’s happened and neither the District Court order.

Now what happened was along about August 14, the Secretary of State, re-exist some documents the best evidence of which according to the District Court was an affidavit from a blind man saying, that he happen to heard the mass meeting in the Madison County Courthouse.

She relied upon that and said that this party could not appear on the ballot.

On September 5, she recounted, said the party could appear on the ballot and prior to that time and public statements in the press.

Following that, on September 10, she says “no, you can’t appear on the ballot except for two candidates.”

By September 13, of course would file suit and we were endeavoring at that time to get here by the time of Williams which you decided too.

Now, she is of course the Secretary of state, a Wallace president elector.

Seven of these presidential elector candidates on Column 3 are the highest state public officials there are.

Two others are the wives of United States senatorial candidates and I forgotten who the tenth one is.

Now in this particular instance, she says “no, you can’t get on the ballot because you missed on that mass meeting.”

We took voluminous evidence and the District Court unanimously, there’s no question about this.

He said “No Mrs. Amos, you deprive this people of their rights to equal protection under the laws by depriving them with the right to appear on the ballot on the basis of that mass meeting and you Mrs. Amos must pay one-half the cost.”

Now she had a second ground, she denied them the right to appear on the ballot.

She said they didn’t comply with the Garrett law, Act 243 of Alabama legislature.

And the Garrett law simply says this.

It says, “You must file a declaration of intention to run by March 1st.”

That’s 250 days before the general election.

But frankly whether they’re electors?

Charles Morgan, Jr.:

It’s made up in a form —

What’s the substance?

Charles Morgan, Jr.:

It just says, “I hereby declare my self to be a candidate for such and such an office and such and such a county or such a statewide office and I do certify that I, you know, intend to become one.”

Of the office of the vice — of the vice-president before March 1.

Charles Morgan, Jr.:

Well one says nothing apparently in Alabama because you see again, this — you see we haven’t been able to vote a full ballot in Alabama.

Charles Morgan, Jr.:

In the five or last six presidential elections because we always have electors and we were democrat.

Well may I ask you this way, what was the declaration of the part of Republican Party before March 1?

Charles Morgan, Jr.:

Their electors file declarations of intention.

To what?

Charles Morgan, Jr.:

To run for presidential elector.

They don’t have to identify the candidates that they are going to support.

Charles Morgan, Jr.:

No.

Obviously not to support them.

Potter Stewart:

Or do they say presidential elector pledged to support whoever the national or republican convention?

Charles Morgan, Jr.:

Not on the form that they file, it’s my recollection, they don’t — they could but I’m not certain with that but I don’t think they do.

They just simply file as republican electors and folks assume that they are vote that way.

Now the democratic — Column 3 electors are selected differently.

They run in the primary.

They run as pledged to Wallace and run in this date, as Wallace pledged electors.

Now this is the one state of the 50 that he appears on the democratic ticket.

He appeared on the third party tickets elsewhere.

Now, what happens here is exactly parallel to Williams.

Exactly with respect to time except it’s 250 days in Alabama, 272 days in Ohio.

Now the second problem with the declaration of intent statute is this.

There are a lot of people you don’t — who don’t want to run for office, first if you’d have a declaration of intent statute nationally, Adlai Stevenson would not have been the democratic nominee in 1952.

He couldn’t have qualified.

If he was in fact drafted and I believe he was.

Beyond that, there are number of people —

Potter Stewart:

This doesn’t — and of president, this doesn’t affect people like Adlai Stevenson or Hubert Humphrey.

This isn’t — these are electors I think.

Charles Morgan, Jr.:

Yes but you see in Alabama you have different systems.

Only one — only these are electors, you see we are really very concerned about the folks down the ballot too because we are running people for a local and state office in local county boards of revenue and places often in the black belt areas and other place.

We’ve got a candidate for Congress running in the district.

In the Fifth Congressional District, William McKinley Branch, he is a Negro.

Now you can look at the two independent candidates, they’re both white.

Charles Morgan, Jr.:

Gibbs is white.

Donaldson is White.

Clovers is white.

There’s approximately 30% Negro vote in that district and day before yesterday, the Northern District of Alabama entered an order allowing college students to register in Tuscaloosa, Alabama in that district.

It’s a very real matter to that congressional candidate who is a Negro in this election with respect to prospects of being elected and there are others down the line too in other counties for board of education post, for post of county — on county commissioners and these folks are trying to seek and force away into American life.

That’s not the total ballot up there?

Charles Morgan, Jr.:

Oh, no.

If you want to run about a hundred candidates, is that right?

Charles Morgan, Jr.:

A hundred candidates in the District Court said we counted 89 as I recall it.

Alright, 89 and of those 10 are electors and the rest are for various state and local offices?

Charles Morgan, Jr.:

Yes, sir.

And as matters now stand, none of those is on the ballot?

Charles Morgan, Jr.:

As matters now stand, they are in the order but they wouldn’t be without —

I understand.

Charles Morgan, Jr.:

Two would be.

For some reason as the District Court says in its majority opinion unexplained to them.

They allowed the Reverend William McKinley Branch to run and Ms. Copeland to run for a special election to fill a vacancy in the state legislature.

Under what party emblem?

Charles Morgan, Jr.:

Under the National Democratic Party of Alabama.

Now this party of course — know that party in Alabama does.

You mean as matters now stand absent to this Court’s order, the National Democratic Party of Alabama emblem will appear on the ballot and then there will be only two candidates.

Charles Morgan, Jr.:

Only two candidates in the place and we are not even sure of that because we’ve been turned back over to the tender mercies of Mrs. Amos and 67 white probate judges of the State of Alabama by the majority opinion.

And we don’t really know where we are with respect to it or where we will be with respect to the ballot and once we leave this Court if we go back to the majority opinion down there, we don’t know where we will be there.

Well is that the — where those the only two reasons that the Secretary of State gave to —

Charles Morgan, Jr.:

She had to — one mass meeting was wrong and the declaration of intent statutes, you made that quite clear.

Well, now the Garrett Law, I guess you apparently have an idea of what the Garrett Law isn’t even in effect, don’t you?

Charles Morgan, Jr.:

Well that’s right and certainly that’s under the Voting Rights Act and —

And you don’t get to its constitutionality unless a law is —

Charles Morgan, Jr.:

There’s no need to get to his constitutionality unless it complies with Section 5 or — and 4 (b) of the Voting Rights Act.

Well is it the same issue that’s here in this Whitley case or?

Charles Morgan, Jr.:

It’s the same issue I’d say that you are in the Button case.

But one of those cases we heard yesterday.

Charles Morgan, Jr.:

Yes, sir.

The others have, you know, reapportionment figured into this don’t, Whitley does in the court below and the brief below.

The case of Sellers versus Trussell has been cited by counsel and also cited by the Court.

The majority pinion is somehow authority for them.

Is this the same law that’s in — that’s at issue in — no that’s a Mississippi case?

Charles Morgan, Jr.:

Yes.

As the — as the Attorney General as Mr. Pollak stated the other day, Alabama has asked for approval of the Attorney General in only one statute that was in November 1965 or 1966, I guess it was.

Since then, they’ve asked for none.

I understood, they haven’t asked for the Garrett Law.

Charles Morgan, Jr.:

They haven’t asked for it, Your Honor.

That’s passed in 1967?

Charles Morgan, Jr.:

Passed in 1967.

And of course this affects your Button case which doesn’t involve reapportionment affects of candidacies.

This affects everybody in the state.

Now as the — has the additional reason that the Secretary of the State has, the court practices law disqualification and it was that presented to the District Court?

That was presented in the Court after we were in the Court.

Let me give you the sequence of that as rapidly as I can.

We’re in Court — we’re in Court in the 13th, we know we are not candidates.

Now the law said that we have to postmark our corrupt practice statements five days after the date of filing of the — certificate of mass meeting.

September 5th comes, September 10th she announces publicly in the press that we are not candidates.

Now I don’t know that there’s anything that we have to do beyond that such as file at notice when the Secretary of State says, that you on the ballot.

We say she first told the period.

Then secondly, we went back in the District Court and what happens at that point is, the District Court on the 16th as I recall it held the hearing.

He said it would issue the order, get your candidate straight.

On the 17th for the first time, the state Attorney General comes along and says “none of your candidates have signed these declarations.”

Now 30 to 35 did it because they did file Garrett Law implications regardless what the — you know, what’s been stated, they just filed.

And they are contained on the same form.

That’s why everybody else filed them because you know, the form was made out that way.

Well what happens then is we’re in open court, they then raised that question and say none of your candidates could appear and we look up and we say, “Okay, we are not candidates to the District Court and of the temporary restraining order.

No matter what you say, we couldn’t have been.”

We immediately filed in the Court a certificate of compliance and as Judge Johnson says, and it’s not our phrase it’s the dissenting Judge Johnson’s phrase, they’re disqualified in this whole slate by an afterthought.

And they’re doing it in federal court by a document filed in federal court.

She started with two reasons.

She lost on one of those, now she has two new — one new reason.

And she’s applying the Corrupt Practices Act and it looks does like it’s clearly equal situation because it’s never been enforced by the state.

What did the court do about it?

Charles Morgan, Jr.:

Well, the District Court ruled the majority.

All of them said that it’s constitutional on its face.

It requires you to file within five days afterwards.

The majority says, it’s constitutional on its face and there was no unequal application.

Judge Johnson says, there is an unequal application under equal law.

He says that there’s been private enforcement constantly.

The public has never enforced this law.

Public officials have never enforced this —

Byron R. White:

The court sustained — the Secretary sustained on that or for that reason?

Charles Morgan, Jr.:

On the Garrett Law and on that reason to the ones.

Was there evidence to the effect that the state had never enforced that law to court?

Charles Morgan, Jr.:

There was evidence that — we found no evidence that the state had ever enforced it.

The private parties had always enforced it all the way through.

Private parties would go in and follow action against their opponent by in large.

Their opponent then would intervene, come in the case and we go up.

John M. Harlan:

As a matter of it, those certificates were filed certificates, (Inaudible) in the end-result in court?

Charles Morgan, Jr.:

Yes we are — it was filed by me as counsel for all of those people and was mailed to everybody in the state, every probate judge within two days after the order was applicable with every candidate’s name.

I’d like to reserve the rest of time if I may.

Earl Warren:

You may.

Mr. Redden.

L. Drew Redden:

Mr. Chief Justice and may it please the Court.

William J. Brennan, Jr.:

You just might at the outset telling us what is the situation about the preparation and distribution of ballots?

L. Drew Redden:

The probate judges in the various counties are in-charge with the preparation of the ballots in their particular county.

I think the Court will readily understand as has been pointed out that this is not a complete ballot, as the ballot will vary from county to county because of the fact that there are local and county officers up for election during 1968.

So that on the ballot in each county you would have your statewide offices, you would have only one of these candidates for Congress.

We have eight congressional districts in the appropriate districts, so that you have a different ballot in each county.

Potter Stewart:

Is there only one ballot, however?

L. Drew Redden:

Sir?

Potter Stewart:

In other words, is there only one ballot?

L. Drew Redden:

There is only — if I understand the question, there is only one ballot in each county.

Potter Stewart:

Yes, but each one is different at the lower level.

L. Drew Redden:

It would be in any state of the union.

To answer your question, I would have to say that you would not have a uniform situation with reference to the degree of preparation of the ballot from county to county.

William J. Brennan, Jr.:

Well, do we have any information what each probate court judge did when the interim order came down from the District Court?

L. Drew Redden:

I have some hearsay information solely.

Remember that in the portions of the state, voting is on voting machines, those have been prepared I’m sure in a great many cases following the District Court’s order.

In some other instances the ballots are being printed by printers at the order of the probate judge.

There is no uniformity right now.

They are in various stages of preparation.

William J. Brennan, Jr.:

Well, is that to say then that to the extent that ballots are being prepared whether they are printed ballots or on voting machines?

L. Drew Redden:

Yes.

William J. Brennan, Jr.:

They comply with the interim order and include that the Column 7 list of —

L. Drew Redden:

No sir, I would have to say that a good many do not, that probably more do not than do.

We have made contact since the Court entered the order here with as many — as we have been able to contact to advise them of the issuance of this order and to have them to undertake to do whatever they can do with regard to trying to wait and trying to find a printer who can put them in a position of compliance.

But really we are getting very close to the election and I am sorry that I’m unable to tell the Court precisely what the situation is in each county.

What page?

L. Drew Redden:

67.

Potter Stewart:

67?

L. Drew Redden:

Yes.

Might I state one thing about, said, I have been requested by counsel for the intervenor who was not allotted anytime to make a presentation today simply to state to the Court that a brief has been filed on behalf of the intervenors to state that the issues raised by the intervenors apply only to the present and to electors, not for the local officers that they are in accord with the decision of the court below in favor of appellees here but they desire me only to make the further representation to the Court that they consider that there are inefficient, raised its issues which were not disposed off the law for the reason that it was unnecessary to reach them because of the decision.

Abe Fortas:

Now you did not — the Attorney General did not in the telegram sent to this Court assert that it would be impossible to comply with an order, if it were in the granting the relief requested.

L. Drew Redden:

That’s my understanding.

Abe Fortas:

You are not now — are you now saying that compliance would be impossible or are you not?

L. Drew Redden:

I would not represent that to the Court.

I would say that the officials will make every effort to comply with any order of this Court makes.

I’m not sure that it will be possible in every case, but I make no assertion of impossibility.

I’m not prepared to.

I would like to reply directly to some of the points raised here.

In the first place, the Corrupt Practices Act of the State of Alabama has been the law of that state since 1915.

It’s been the law for 53 years.

The two sections under attack by the appellants in this case have not had any substantial change throughout that long period of time.

The portion with which they failed to comply was a provision of that law which states that within five days after the announcement of a candidacy that the candidate is required to file a designation of a committee to receive contributions to handle its funds.

The rest of the law imposes a considerable obligation on those individuals.

It may be the candidate himself, it may be persons he designates but the law imposes a considerable obligation on them with reference to the receipt of funds, the disbursement of funds and ultimately the accounting for funds.

And the second section that they attacked contains a mandatory provision that if a candidate fails to comply with that provision, his name will not appear on the ballot.

Now it is that simple when count —

Thurgood Marshall:

Mr. Redden, in Alabama do the candidates for elector run a campaign that cost money?

L. Drew Redden:

That cost money?

Thurgood Marshall:

Yes, sir.

L. Drew Redden:

They frequently have, yes.

Thurgood Marshall:

Or I mean or is it the — I’m talking about just for their one position as one of the electors.

L. Drew Redden:

Generally, I would say that the expenditure of funds has been on a consorted basis if I understand that question.

Thurgood Marshall:

I mean, but there’s no question that Corrupt Practices Act will blend.

It does apply to a candidate to be an elector?

L. Drew Redden:

No sir, there is no question.

They are provisions of course governing all officers with reference to the amount of money that can be extended in particular raises for particular purposes in that.

It does apply to them without any question.

But this was not complied with in the main.

As counsel has stated, there were some few who filed a form that was printed for this party at the head of it.

It contains a statement, declaration of intent, Act number 243, National Democratic Party of Alabama.

It was a prepared form.

Their chairman testified that he was aware of all of the requirements of the Garrett Act that he was aware of the requirements of the Corrupt Practices Act that he disseminated the information concerning the necessary compliance to his county chairman and to others and disseminated, distributed the forms.

L. Drew Redden:

And they simply did not comply.

Now the complaint is made that the Secretary of State acted in disqualifying particular candidates as an afterthought.

I point this out to the Court and what I say here supports I think not only the Corrupt Practices Act but I would ask the court to consider it in relation to the Garrett Act also.

You’re being asked to consider the Garrett Act as an isolated piece of legislation erected solely for the purpose of disqualifying candidates for office.

I submit to the Court that this is not the situation.

It is part of an integrated portion of statutes concerning declarations of candidacy and qualification for example.

For I believe 30 years, those persons who wish to qualify as candidates for parties conducting primaries have been required to do so by March 1st of the year in the election.

Everyone, the only effect of the Garrett Act is to say that an independent candidate for office or a candidate for office of a party not conducting a primary must file a declaration of intent by the same day.

Now, this can’t be equated in my judgment with what this Court struck down in rolls.

There, a petition as I recall the facts containing 430,000 names would have had to be signed and presented by February the 7th, 90 days ahead of the primary.

What has to happen here is that every person who desires to be a candidate for office in Alabama must by March 1, file a declaration of intent.

It doesn’t have to be supported.

It’s not a petition containing signatures.

It is his statement and it applies to everyone.

Abe Fortas:

When are the primaries held by the Democratic and Republican parties?

L. Drew Redden:

The first to use the in May.

Abe Fortas:

So that in effect, the result of this would be that to make it impossible for somebody to submit his name to one of the regular parties and then if defeated, qualified later.

L. Drew Redden:

Unless he were nominated by convention that had chosen, of a group that had chosen delegates on primary election day.

You see the integration —

Abe Fortas:

How can — he couldn’t do that though.

That can happen as practical matter.

Here’s Mr. X and he says that he’s going to make a run for it to the get the nomination of the Democratic Party or the Republican Party, he fails.

And then he wants to run as an independent or some other party wants to nominate him.

That’s impossible under your law.

L. Drew Redden:

I would say there would be one instance in which it would be possible.

Let me carry just a step further the statutory provision.

As I stated every one regardless whether he desire to run as independent, candidate for primary party or candidate for non-primary party must declare by March 1st.

Now the statute further provides that whatever form of nomination is utilized.

That must be accomplished on the first Tuesday in May.

For example, Mr. Justice Fortas referred to the Democratic and Republican Parties conducting primary, the fact is that the Republican Party conducts primaries only in two or three counties in Alabama.

L. Drew Redden:

There are no statewide primaries.

It nominates by mass meetings.

The law states that the mass meeting will be held or rallies or compasses or whatever they may be called will be held on primary election date which is this year May the 7th being the first Tuesday.

The primary is held on the same date so that the republicans go through by the mass meeting.

Their nomination procedure on that date.

Now, I say that there would be a degree of possibility for this reason.

A party might at that time, that is on the first Tuesday may elect its delegates to a state convention for example.

That would meet for the purpose of nominating candidates.

I would have to acknowledge I believe that he probably would have lost his right to some degree to run for a county office.

There would still be (Inaudible) available to them and conceivably if they simply elected delegates to a nominating convention at the county level that would still be open.

There would be a degree in which it is open.

So that on May the 7th, the nominations are made or delegates are elected to conventions.

This is required of everyone.

There is no distinction if the man is an independent candidate.

The petition that the law requires of him to submit has not been required to have been submitted on March 1st, it must be submitted by May 7th.

Abe Fortas:

Now when was that legislation adopted?

L. Drew Redden:

All of the legislation that I am speaking of with the exception of the Garrett Act has been the law since 1947 all along.

Though some of the statutes to which I have referred dated back to 1931, I believe is the date of origin.

Abe Fortas:

How about that March Provision?

L. Drew Redden:

The March provision changing the date from May for those who were not candidates in a primary to March was enacted in 1967 and effective in May I believe of the year perhaps —

Abe Fortas:

And it was not — there was no attempt to comply with Section 5 of the Voting Rights Act.

L. Drew Redden:

It was not submitted.

Of course, I’m using this example showing that this is only a part of the law.

The Corrupt Practices Act of course had been the law as I said since 1950 going forward with the dates and actions synchronized May the 7th.

The certifications of the nominations which were made on May 7 are by nominating conventions held subsequent to May 7 through delegates elected on that date must be submitted 60 days prior to the election.

Now one thing that Mr. Morgan has pointed out is this that Mrs. Amos, the Secretary of State, he says, as an afterthought, as an afterthought said “well you also failed to comply with the Corrupt Practices Act to the State of Alabama.”

I do make this observation to the Court.

There were 67 other defendants in the case below.

Every probate judge in the State of Alabama was made a defendant.

The only people who were required to file was Mrs. Amos, the Secretary of State at all where the candidates was statewide office.

L. Drew Redden:

Now if we assume that it would be valid to state, that Mrs. Amos as an afterthought said “Oh, by the way, you didn’t comply with the Corrupt Practices Act” which I submit she had a perfect right to do if in fact they did not comply.

That statement can’t be made and has not been made of the 67 probate judges.

There’s no contention that they have said anything that stops them to say that we must comply with this law which says you cannot be on the ballot if you have not complied with the Corrupt Practices Act and it’s just as simple as that.

May I ask you this Mr. Redden?

L. Drew Redden:

Yes, sir.

If we did not have the Garrett law at all, Alabama has not adopted, do I understand you to say by May 7, either party must on that day decide on convention and then turn up with nominees within 60 days before elections, is that it?

L. Drew Redden:

We must certify them.

Certify them.

L. Drew Redden:

Yes.

And if one is an independent, what does he do?

L. Drew Redden:

The same thing.

The same?

L. Drew Redden:

Yes.

But — so if we did not have the Garrett Law Act that would be the procedure?

L. Drew Redden:

That’s right, yes sir.

And that is the procedure now because the Garrett Act just applies at one end.

And now may I ask if it pleases, did this party, the appellants here, what do they do before they set to run, anything?

L. Drew Redden:

They state that they had mass meetings on May the 7th.

There were meetings of 5 people, 6 people, various counties and that really is not an issue here in this case that they may exert nominations.

Now we have 67 counties and as counsel has stated to you, what they are stating for example with reference to the straight ticket argument that this people have a right to have straight ticket vote available to them is simply this.

I pointed out that there are 67 ballots in the state because there are 67 counties.

There are only 17 counties they acknowledged in which they have any candidates who they contend are qualified.

Only 17, there are 50 of the counties in which there would be no local candidates.

In four of the others of the 17, there is only one.

In four others, there is only two.

Now, I point this out not to disparage the effort but I point this out to make this observation to the Court that they are talking about straight ticket voting and a right to vote a straight ticket.

They can’t vote a straight ticket for this party and really participate in this election as electors.

If they did that and nothing else, then they would be casting their ballot for blanks.

And I make this further —

Potter Stewart:

Like in 50 out of the 67 counties?

L. Drew Redden:

50 out of the 67 counties and substantially that another 17 because they are offering so few.

But I may —

Potter Stewart:

For candidates for every office in the other 17.

L. Drew Redden:

That’s right, only one for two and four more, three and a couple more.

Now, let’s follow this just a minute.

The argument that there is a right to grant — to vote a straight ticket.

I do respectfully call the Court’s attention to the statute cited in the appendix of our brief.

They are referring to Section 157 of Title 17 of the Court of Alabama.

It says that the elector, if he desires, I believe those are the words of the statute, may vote a straight ticket by either marking at the top of the ballot or by turning this leaf.

But reading 158, 159, 160 and 161, the next one says, he may if he elects, vote a split ticket by marking in any fashion that he chooses.

The next one says that in a case where he wants to vote a straight ticket, and there are blanks in the call of that party.

He can vote the straight ticket and then he could go and fill in those blanks, his ballot and his machine will still be open to vote for the candidates of other parties where the party that he wants to support all the candidates are, doesn’t provide.

So we state to the Court that effective participation in this election would require that they vote on to some other labels too.

I think that the ballot here is not unique, it’s not even unusual.

I guess that the — the format of a ballot if there is somewhat mistake to state, I think that this Court will recognize it.

There’s no scheme or device here to confuse.

I can’t really understand the argument that says on the one hand, you won’t let us on the ballot so our people can’t vote a straight ticket.

Your ballot is so confusing.

I think the ballot itself is proved that is to put easy to get on the ballot in Alabama.

The prohibition authority for example has candidate as presidential elector, no other since they attack the Alabama Independent Democratic Party for that.

No others.

But it must be very easy to get on the ballot.

And now, what they are saying and what they said at the outset of this Court in their argument was “we want you to declare Section 148 Title 17 unconstitutional.

And we want you to do it so that these candidates for elector can withdraw and this party can thereby substitute these people over here so that they will be running under both Columns.”

And the reason you have to declare 148 unconstitutional is so that the vote can be aggregate here.

And this proposal was made in the course of the trial of this case before three-judge court in Montgomery.

Counsel said “we represent to the Court that we’re willing to do this on this condition.”

On condition that this Court will declare Section 148 unconstitutional and on the further condition that these people whose names we are going to duplicate on this ballot and get over here will give their oath that they won’t withdraw their candidacy which any candidate has a right to do under the law until 20 days before the election.

This is nomination at open court however liberal the Alabama laws maybe and I submit that they all liberal with reference to getting on our ballot.

There is no provision for that and I don’t really know of the laws of any other state containing such a provision.

Potter Stewart:

And is it Section 148 that makes it illegal to be on the ballot twice?

L. Drew Redden:

Yes sir, it states that the name of each candidate shall only be on the ballot once and only under one emblem.

Mr. Schwenn who has just been admitted for practice in this Court was a nominee of this party for United States Senator and for Presidential Elector.

Mr. John Davis whose name appears here is running for Presidential Elector or President of Alabama Public Service Commission and for a number of the Board of Education St. Clair County or some office of that type, I’ve forgotten.

What’s the date of that law?

L. Drew Redden:

Sir?

What’s the date of that law?

L. Drew Redden:

This would be in the 1930’s law.

It is not of new origin.

Is any law here other than the one we just talked about, that’s 1967?

L. Drew Redden:

No sir.

I would say that —

That’s the only one.

All the other laws we’re talking about are predate 1966.

L. Drew Redden:

I would say that all of the others that we are talking about are at least 20 years old and most of them older.

There might have been some minute changes of phraseology but I’m speaking of the substance of the law.

I’m sure that the amount for example that you can spend in political campaigns has recognized inflationary tendencies of the time than has been upgraded from time to time in recent years.

What do you say about the carried Garrett Law as to whether or not it’s in effect or not?

L. Drew Redden:

I submit to the Court that it is in effect.

It’s not in my judgment a device.

It comes within none of the definitions of — in my judgment of the Voting Rights Act.

The language is Section 5, is it Mr. Redden?

The language of Section 5 is whether it’s a standard practice of procedure not whether it’s a device.

L. Drew Redden:

With respect to voting?

I submit that it is not a standard within the broad term of procedure, yes sir, certainly within a possible definition of that term but it is a procedure of this nature.

It’s one that has always been required.

A procedure that has always been required and it is only part and an infinite decimal part of the established procedure that has been the law since the turn of the century it read it.

And all it does is to set a date in which it says that everyone was before the Act.

Well that brings me back to what I was asking you earlier.

If we felt that this fell — that the Garrett Act fell within the requirements of Section 5 and therefore is — was not a law.

So that what then was required as compliance with whatever law, other law has bear on the Section?

Would this party then be qualified in those?

L. Drew Redden:

No sir, for the reason that they have not complied with the Corrupt Practices Act.

And that — that would then be the only reason, would it?

That they had not complied with Corrupt Practices Act?

L. Drew Redden:

There would be of course the question of individual qualification where special educational qualifications and things of that sort of residence are required in the case of individual candidates.

Most of those have been restored.

Or under 148.

L. Drew Redden:

Or under 148.

It would certainly eliminate the (Voice Overlap) and 148 prevents the representation that was made to the court in open court.

But the Corrupt Practices Act since 1915 has said within five days of applicants.

I would point this out and I started to while going on, I’m glad you returned me to it.

These people represent that they in mass meetings on May the 7th nominated candidates.

They gave no indication of who these people were that they nominated.

They first had that they were going to have a state convention on June the 17th or June the18th.

They ultimately have a meeting in Birmingham on July the 20th at which certain additional candidates purportedly were nominated.

Thurgood Marshall:

Mr. Redden, didn’t the Secretary of State take that out of this case?

I understood the Secretary State challenged the fact that they’d had a mass meeting and then we can’t — didn’t change their mind.

Is that right?

L. Drew Redden:

No.

The decision below stated that there was no basis for refusing to certify because of the lack of a mass meeting in Madison County.

Thurgood Marshall:

Well then it is out of this case.

L. Drew Redden:

It is out of this case I’m using it only to make the point.

I’m reciting a chronology for this reason.

That the last nominations before that it made would have been made on July the 20th.

The earliest ones would have been made on May the 7th.

There was no certification of any candidates to the Secretary of State or to the Probate Judge until certifications were mailed apparently all or almost every one of them from Huntsville on September the 4th of 1968 arriving in the offices of the Probate Judges and the Secretary of State on September the 5th1968 at the last possible moment.

Would they timely though?

L. Drew Redden:

They were within the 60 days, just barely but —

But when and from — may I ask this, Mr. Redden?

From what date then would the corrupt practices provision within five days apply?

L. Drew Redden:

If they maintained and this is a point I was getting to.

If they maintained that there had been no announcement until that moment of a candidacy established on May the 7th for example.

They didn’t comply with that because they didn’t file their designation of committee within five days of that time.

If they maintained that even as a statewide candidates nominated, they say on July the 20th.

If they maintained that there was no announcement because they kept it apparently pretty quiet.

That there was no announcement of those candidacies of those people nominated on July the 20th until they file these papers.

They didn’t satisfy then the Supreme Court of Alabama has held in a case where a candidate declared or the word made public by filing this paper on I think May the 3rd of that particular year.

It was the first Tuesday in May or he was nominated then has held in that case that that was the time of the announcement of candidacy.

That’s when he became a candidate and when the time started to run for him.

What I am merely saying is that is necessary only to assert this that the things that this party did were done relative to nominations either on May 7 or July 20 or September 5.

Now if it were September 5, was Corrupt Prices Act complied with?

L. Drew Redden:

No, sir.

Not even then?

L. Drew Redden:

No sir.

It was not complied with then.

And the only attempt that complies for most of the candidates, remember that I have acknowledged at the outset that there were a few who utilizing the form printed by their party and distributed to.

There were a few who signed the designation of finance committee and filed it with their declaration of intent.

What do you say?

I beg your pardon.

What do you say to the claim that there has been discriminatory enforcement of that provision?

L. Drew Redden:

I say that that is not direct and I say that it’s not supported by the record in this case and I say further that the only testimony in this case with reference to its utilization and its enforcement is a testimony of J. Paul Meeks who is a Judge of Probate of Jefferson County, Alabama which is the most populous county in the state and has a population of approximately 800,000 people.

That 2,000 compliances with this act were filed in his office, timely filed for this election.

So it has fallen into the issues.

There are four decisions of the Supreme Court of Alabama upholding the Act, construing it to be mandatory before elections in Alabama and this I submit rule has been approved by the Fifth Circuit at least in a statement that this is a matter of state law absence of constitutional violation.

And providing — and there has been enforcement in the sense of excluding people from the ballot?

L. Drew Redden:

Yes, sir.

Because of noncompliance?

L. Drew Redden:

Yes, sir.

And in addition to that, they have done opinions of the Attorney General of Alabama where the responsible office of that is a probate judge would request an opinion of him concerning where the particular person should be placed on the ballot.

L. Drew Redden:

So —

May I ask you Mr. Redden?

Do you understand the party to make any claim that which every date should pick, that had been compliance with the 5-day provision?

L. Drew Redden:

The only compliance that they claim to have made is that in this lawsuit, and about the 20th day of September and this is as close as I can take it.

If I’m wrong counsel can correct it.

It would be no earlier than 18th, 19th or 20th.

There was an attempt in this sense that Mr. Morgan as counsel for those individuals who before delivered candidacy set a document to the court and a document to each probate judge and I presume to the Secretary of State —

Now, you finish your end.

Earl Warren:

Go right ahead and finish your statement, Mr. Redden.

L. Drew Redden:

Stating that as their attorney, he was filing a statement that each one of them was appointing himself, his committee to receive his funds and that’s the only attempted compliance for those who didn’t use the form and the law requires —

Then you would say that that was done on September 20th.

That’s out of time even dating this from September 5, is that it?

L. Drew Redden:

Completely.

Which then would relegate if that was so, the appellants to the argument that it was this provision, its requirement has not been evenhandedly applied and there’s a constitutional infirmity denial of equal protection, is that it?

L. Drew Redden:

That’s only argument that they can possibly have.

John M. Harlan:

I’d like to ask you a question.

As I understand it, the restraining order in its face expressly states that you would have on your ballot three — two sets of Presidential Electors compose of different people but each of them pledged to Humphrey and Muskie?

L. Drew Redden:

Three sets?

John M. Harlan:

Two sets.

L. Drew Redden:

Two sets, yes.

John M. Harlan:

And then you have a third set pledged to Wallace and again a different set presidential electors?

L. Drew Redden:

Yes.

John M. Harlan:

Is that right?

L. Drew Redden:

Yes.

And a set pledged to Nixon and Agnew.

John M. Harlan:

Yes.

L. Drew Redden:

I don’t know of any pledge.

John M. Harlan:

Now unless — I’d like to ask you another question.

Assuming for a moment that the presidential — the restraining order were modified so as to leave the — so as to eliminate the electors of the appellants here, but to leave their candidates on the ballot for other offices, would that — what effect would that have on the election?

Could that be done?

John M. Harlan:

In other words, could you eliminate from the ballots the presidential electors of these appellants and leave their other candidates on?

L. Drew Redden:

I can’t say that it cannot be done.

I would only have to represent to you that if it can be done it will be an extremely difficult thing to accomplish.

I wouldn’t want to represent further than that because I don’t have the knowledge adequate to do it.

John M. Harlan:

Would it be more difficult than taking all the names off?

L. Drew Redden:

Yes, sir.

For this reason, if I may point this out.

The uniform removal can be accomplished in other ways that are fairly simple, whether you use a machine or a ballot but the intersplicing would be difficult toward here or there.

The District Court ruled in favor of the defendants on the constitutional issues and said we exercised our discretion to refrain from deciding individual factual disputes.

Those have not been ruled on.

William J. Brennan, Jr.:

Mr. Redden, just so I am clear about here, if as you suggested, it might be difficult to delete the electors now on that under the interim order to be on the ballot for this party.

Of course it would be much more difficult to substitute other names but even if you could substitute other names, I understand your argument is and under Section 148, that’s prohibited because you cannot have the same name for what, more than one office or as it be for the same offices I understand it, for the office of elector, but would that violate 148 substitute?

L. Drew Redden:

Yes, it says a name cannot appear but once on the ballot and under only one emblem and of course —

William J. Brennan, Jr.:

I see.

L. Drew Redden:

— counsel has said that they cite California, New York cases for the proposition.

That’s unconstitutional.

We submit to the Court that every state that has ever decided that question but those two have rule that such a provision is constitutional.

William J. Brennan, Jr.:

And how old is that provision 148?

L. Drew Redden:

This is in the 30’s.

I’m guessing so I could define it easily.

Earl Warren:

Thank you Mr. Redden.

Abe Fortas:

Mr. Morgan, may I ask you a preliminary question?

Charles Morgan, Jr.:

Surely.

Abe Fortas:

Do you contest the point that statement was not filed for these presidential electors naming their committee or themselves as the committee for fund collection.

Charles Morgan, Jr.:

Yes, sir.

Mrs. Amos —

Abe Fortas:

Wait a minute.

Do you contest the point that such a statement was not filed within five days after the first announcement of candidacy for those officers?

Charles Morgan, Jr.:

Yes sir.

Abe Fortas:

Now tell me why.

Charles Morgan, Jr.:

On the first place.

Abe Fortas:

Remember I’m talking in the statutory language, the announcement of a candidacy.

Charles Morgan, Jr.:

Yes sir.

Herndon versus Lee is relied upon as the law of Alabama, that’s relied upon in brief, that’s relied upon in the majority opinion.

Herndon versus lee clearly says when the certificates of nomination are filed, that’s the day upon which the statute begins to run.

Abe Fortas:

But its no, what the statute says.

Charles Morgan, Jr.:

Well the statute itself says five days after the announcement of candidacy which could be either March 1st or May 7th (Voice Overlap).

Abe Fortas:

And your point is that this is going to construe by the Supreme Court of Alabama to mean the filing of the certificate of candidacy?

Charles Morgan, Jr.:

No — yes, filing the certificate of nomination —

Abe Fortas:

Of nomination.

Charles Morgan, Jr.:

By either mass meeting or by convention held after mass meeting by delegates nominated at the mass meeting.

Abe Fortas:

Alright, now let me ask you.

Do you assert, do you concede that the required statement as to the committee was not filed within five days after the filing of that certificate of nomination?

Charles Morgan, Jr.:

We do concede that it was not filed except with respect to certain candidates —

Abe Fortas:

Right.

Charles Morgan, Jr.:

— which were not going left at the court.

Abe Fortas:

Right.

But with that exception you concede that it was not filed within five days after that date?

Charles Morgan, Jr.:

Yes sir but that’s not —

Abe Fortas:

And how do you explain, how do you justify that one?

Charles Morgan, Jr.:

There was no need to file it.

Mrs. Amos stated the record references on this are record 80 — 67, 68, 82, 80 —

Abe Fortas:

Apart from that, just tell me simply.

Charles Morgan, Jr.:

She said that — she said she was going to put this on the ballot.

Abe Fortas:

I know but that’s not the — is it — the Herndon against Lee on your submission put says the trigger date, the critical time, the filing of the certificate of nomination, is that right?

Charles Morgan, Jr.:

Yes which is September 6.

Abe Fortas:

It does not say anything about whether the certificate — whether the person is going on the ballot or is not going on the ballot, is that right?

Charles Morgan, Jr.:

Under that case, it doesn’t because nobody ever tried this.

Now, what she said on September the 10th was, and we could — the record replete with it.

She says, “You’re not going to be on the ballot anyway.”

Charles Morgan, Jr.:

To us, that renders — the filing of anything, nugatory or nullity.

We immediately came back.

She says “you’re not going to be on the ballot.”

The first time the state raised the question was in Court.

The first time the state and its histories raised the question was in this Court in this case.

Abe Fortas:

Well that’s not very onerous requirement and it’s one that’s often make some sense, isn’t it that you name the person, is going to be responsible for a compliance with the laws with respect to the collection, to seek in disbursement of political funds?

Charles Morgan, Jr.:

I can just respond as Judge Johnson did the first time that’s enforcement by the state against these impecunious defendants who if the campaign contributions, it’s of mystery to me.

It’s really rather strange under equal that has happened.

Now, what happen then we contend is that we did comply with the statute.

But if we didn’t comply with the statute, we say Dean Milk and other cases including the Alabama welfare case of last terms, King v. Smith, the least drastic alternative does not destruct them for the ballot because in the first place all they say is after five days.

They say — we’ve got an Alabama case that says if you don’t raise it by private party that is not raised before the election, not only, this is just a point to comment.

Thurgood Marshall:

Mr. Morgan, what worries me is that five days after this September date, you didn’t file but you did file after that.

Now if you going to file, why didn’t you file within the five days, the September 5 date?

That problem worries me.

Charles Morgan, Jr.:

We represent it to the Court.

The Court said on 16th of September, it issued the ordered on the 18th.

It indicated us on the 16th, that it was going to issue in order to making as candidates.

We — the state think comes in, in the 17th and said we didn’t file it by the 10th which is the day Ms. Amos said you don’t have to file it.

We then said to the Court, we will file the statement immediately upon being placed upon the ballot by the Court which is the first time that we can be candidates.

Indicated that to the Court before the temporary restraining order was issued, the Court issued the order, we then filed the statement within two days thereafter with every parties.

Now, we think that’s compliance.

The second thing is that the provision — yes?

Is that an argument Mr. Morgan that really this ought to be treated as if the date of filing was the date that the court ordered to put on the ballot which was the 16th?

Charles Morgan, Jr.:

Well, the date of filing under Alabama law was the 5th, but we say that Mrs. Amos interrupted our statutory period when she says, “We can’t get on.”

These parties represent the State of Alabama to request to the Government and all 67 probate judges.

Now our second contention though is that even with that, we’ve got Alabama statute that say if you don’t even file that the list of the people who donate to you before the election.

And if nobody catches you before the election then that’s okay, it’s just directory after the election, it’s mandatory before.

We think in the application of the statute certainly is in violation to Fifteenth Amendment because this is the first time it’s going to applied by anybody but private parties in Court.

And it’s been applied against the first integrated political parties that have come along in Alabama.

Now, some point was made with respect to this not being aimed at us, being aimed to Republicans.

Charles Morgan, Jr.:

That if I were hunting the target, I would say the target might have been those groups opposing some substantial threat throughout the State of Alabama office holder-wise.

That was counsel’s statement in the court below.

Now I can just refer you with respect to that statement to the statement in Button here for one of you and I don’t know which from my transcript remark that even Republicans have constitutional rights.

And the Garrett Law was aimed directly at somebody in this case.

I would like you to — refer you to the Amos deposition, exhibit 7 there — J thereto where there’s a letter which she didn’t answer which says in close “Hi Mabel.

Enclosed are the 150 party emblems per your request.

Please send the 150 back to me, the ones which have the motto marked out.

Congratulations on diligent efforts which resulted in the disqualification of some Liberals.”

Now, we — she didn’t answer that letter.

We just contend that all the way through here, we did everything that we could to comply with the law.

Finally she says, you can’t be candidates again.

After she had said that you can’t be candidates.

And then they come in with the — with a statute which we say is unconstitutional even though the District Court did not say so on its face which Frank Johnson, District Judge said was applied in a discriminatory manner under Yick Wo versus Hopkins which was applied for the first time by the state.

All other cases involving private parties which don’t involve anything corrupt it involves, we have to file within 10 to 15 days before the election the list of contributors, and then another one within 15 days after the election.

And this couldn’t apply under the terms of the statute to our congressional and senatorial candidates.

It applies to candidates for state office.

Yet they are disqualifying everybody.

Now, —

John M. Harlan:

Could I ask you a question Mr. Morgan?

Charles Morgan, Jr.:

Yes, sir.

John M. Harlan:

Is it clear on the ballot that each of these two groups of electors reflects Humphrey and Muskie?

Charles Morgan, Jr.:

No sir and these electors —

John M. Harlan:

When does the voter know, how does he find out to vote this way?

Charles Morgan, Jr.:

Well, it’s a mystery often.

I voted for John Kennedy in 1960, when 11 electoral votes then six of my — 6/11 of my vote went up for Harry F. Byrd.

Potter Stewart:

You live in Georgia?

Charles Morgan, Jr.:

They are unfledged.

Potter Stewart:

How’d you — don’t you live in Georgia?

Charles Morgan, Jr.:

Well I still vote in Alabama.

I have a — I own a house in Alabama.

Potter Stewart:

Maybe you shouldn’t vote at all.

Charles Morgan, Jr.:

Well, that maybe it.

Then in both places, you can vote Mr. Morgan.

Charles Morgan, Jr.:

Well I sort of I wanted a declaratory judgment that’s the one vote in this election.

Potter Stewart:

Well I’m — I have this open.

What’s the second column there that’s never been cleared?

Charles Morgan, Jr.:

This column here is the American Independent Party of Alabama.

And that would appear on 49 other states as George Wallace’s party.

But he captured this party and he wants to capture these people that would vote for this ticket, to vote for these nominees and he’s got this ticket over here to vote for Hubert Hanford.

And we’re asking illiterate voters to walk into a polling place and vote the straight ticket, one or across this ballot, the very people from the Voting Rights Act was passed after a hundred years of — the promise we’ve had with this problem in the silence.

And it’s with respect to us keeping things quiet and not having nominees file declaration of intent, let me tell you, we started with a 139 candidates.

Now they’ve been went — underway to 89.

There’s a little evidence in here of the fact that somebody contacted some of our folks.

It’s not very easy to run for office sometimes in Alabama.

Thank you.

Earl Warren:

Very well.