Hadnott v. Amos

PETITIONER:Sallie M. Hadnott, et al.
RESPONDENT:Mabel S. Amos, et al.
LOCATION:Circuit Court of Mobile County

DOCKET NO.: 647
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 394 US 358 (1969)
ARGUED: Oct 18, 1968 / Jan 21, 1969
DECIDED: Mar 25, 1969

Facts of the case

The National Democratic Party of Alabama (NDPA) sought to place the names of minority candidates on the ballot for local and state-wide offices. Alabama election officials denied the NDPA request under the Alabama Corrupt Practices Act. The NDPA then brought suit in a special three-judge U.S. District Court for the Middle District of Alabama claiming constitutional violations. NDPA lost and appealed directly to the Supreme Court.

Initially, the Court heard arguments on October 18 in support of a temporary restraining order which it had granted on October 14. The day after oral argument, the Court granted the order and subsequently addressed the merits of the controversy on March 25.

Question

Does the application of the Alabama Corrupt Practices Act (1) violate the Fifteenth Amendment provides guaranteeing the right to vote and (2) violate the First Amendment’s right to band together to advance political beliefs?

Earl Warren:

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

Mr. Morgan.

Charles Morgan, Jr.:

Mr. Chief Justice and may it please the Court.

We’re back today in a matter of great gravity on the start of a new international life, even though it’s not the beginning of another term of this Court.

Theme of the next few years is to bring us together.

We’re confronted today with a question, amongst others, which directly relates to Section 148 of the Alabama Code in both its aspects, and a defendant, Judge of Probate from the State of Alabama named James Dennis Herndon.

Both the United States and counsel for defendant Herndon agree that, for some reason, this case should be remanded to the District Court other than for a hearing on contempt.

It is this Court’s order that was violated, if any, by defendant Herndon, not the order of the District Court.

This case is comparable to Ship only in the sense that this Court is much more clearly involved than this Court was involved in Ship.

The gravity of the case in Ship, of course, involved a lynching in the loss of a human life.

In this case, it involves what we consider the theft of the right to vote.

Regardless of the evidence in the case which quite clearly points, we believe the evidence had been compiled since we were last here, which quite clearly indicates that the defendant Herndon is in contempt of this Court’s order, I would cite to you the first part of Section 148.

We challenge the constitutionality of the second part of that statute which states, in effect, that the ballots shall not be printed until 20 days before the general election.

The defendant Herndon received a copy of the dissolution of the order of the lower Court on the 14th.

He had his ballots back by the 17th, the day on which he is required to have had, by name, removed from the ballot by Alabama law.

And, in his haste to delete the names of the Negro candidates from the ballot, he not only violated the order of this Court, but violated the first provisions of Section 148.

Since this last election, Alabama now has more elected Negro officials than in any other southern state, 72.

Additionally, one — more official has been appointed.

The 17 Negros elected in this election to admittedly minor posts by the NDPA, equals the entire number of Negro elected officials in the state of Florida, for instance.

There are now, in the south, or the best ascertainable techniques that we have, 384 Negro elected public officials.

There maybe up to 400, but those are the figures of the Southern Regional Council Voter Project.

During these four years, of course, we concern ourselves in the south, all of us no matter which side of the particular political fence we’re on or otherwise, regarding the upcoming life that we’re about to live.

For a number of years in the south, men have contumaciously violated the orders of the United States Courts.

I’ve been involved in a case which involved a man standing in a door at a university.

We have witnessed riots in Mississippi at a university.

We’ve witnessed overtly contemptuous acts.

We’ve seen district judges pilloried and others too, and that’s free speech but free speech, of course, stops when the Court order comes and you’re ordered to abet.

And, the defendant Herndon in this case was faced with the greatest threat a man in GreeneCounty Public Office could be faced with, no doubt.

Unlike Macon County, Alabama where you do have a more coalesced movement for true integration in politics.

In Greene County, the probate judge found himself suddenly faced with the imminent election of four Negros to the five-man County Commission and two Negros to the five-man County Board of Education, on which, one Negro then said “this is not a large county.

Charles Morgan, Jr.:

It’s a small county.”

There are not a lot of folks there.

You think no one knew each other to read the depositions.

All the White politicians just get together every now and then.

There’s an affidavit in the record now that says “Well, I’ve seen them play dominos almost every day, but they just sort of never even see each other.”

They all subscribed to newspapers, but nobody seems to read them except the defendant Herndon, and he did admit that.

They’ve all got television sets and they’ve got two television stations they receive clearly from Birmingham and one from Oridion, but the White public officials just didn’t know anything about this.

But, they never campaigned for office this time.

Potter Stewart:

Where is the Greene County, in west Alabama?

Charles Morgan, Jr.:

Yes, sir.

It’s right over next to the Mississippi line.

It’s in the area.

The NDPA candidates were elected from three counties: Greene, Boarders on Sumter, and Marengo, and those are the two of the counties where they did elect officials.

Potter Stewart:

West — Southwest Alabama?

Charles Morgan, Jr.:

Well, I’d say it’s more central.

Potter Stewart:

Central and west?

Charles Morgan, Jr.:

Central and west.

It’s right up against the Miss —

Potter Stewart:

What’s the county seats?

Charles Morgan, Jr.:

Sumter is next to Mississippi land and Greene is next to Sumter and that’s the county seats, EUTA.

Potter Stewart:

How many counties are there in Alabama?

Charles Morgan, Jr.:

67.

Potter Stewart:

And the county seat is?

Charles Morgan, Jr.:

EUTA.

Now — and, it’s a very small town.

It’s a couple of thousand folks, 3,000.

It’s just absolutely inconceivable that, on the face of this record, a deliberate conscious decision was not made.

That, in the line of past history, my best political judgment, I can hear it now, is to stand right now and take the consequences, leave those names off of that ballot.

Now, had the names been on the ballot, there were 1,938 straight ticket votes, and the highest White candidate got 1,709.

So, he was right in this judgment.

Charles Morgan, Jr.:

He would’ve been serving with four Negro public officials on the county governing body.

Now, this is the county where the greatest risk occurred because this is where the NDPA have the number of candidates running for the county governing body.

That was most important.

In nearby Sumter, they had a man running for the Chairmanship of the Board of Education who got elected.

I recall the —

Abe Fortas:

Well, Mr. Morgan you’re —

Charles Morgan, Jr.:

Yes sir.

Abe Fortas:

— now stating your submission, but this is not what the record shows, is it, as to the reasons prompting the respondent?

Charles Morgan, Jr.:

The reasons to — to give his reasons —

Abe Fortas:

No, I’d like to know what’s in the record.

Charles Morgan, Jr.:

That’s — that, of course, the only reason we have —

Abe Fortas:

The only reason is his reason in the record here.

Charles Morgan, Jr.:

Right, and he has several reasons.

He’s assigned.

He says, first, that he’d read the newspapers, he saw the order was reinstated, knew something about it but he didn’t know that it applied to the local candidates, that he didn’t think he was covered by a Court order and that none was served on him personally, that he wasn’t represented in these proceedings before, and that he wasn’t a party-defendant to these proceedings before, that he didn’t have actual or constructive knowledge of the order of this Court, that he did, as he says, read something about it but he just didn’t understand it.

Now, in Alabama, you don’t have to be a lawyer to be a judge of probate, but it just happens that Judge Herndon is a lawyer.

And, it just happens that Judge Herndon was also the Herndon in the case of Herndon versus Lee which was the last election case in Greene County and, in Greene County in 1966, the Fifth Circuit stayed the general election.

And, the sheriff there, whose name is Lee, is still in office not by virtue of election, but by virtue of the fact that the matter still been stayed and there’s been no election.

And the situation we find ourselves in now is we’re right back in the same place, where all of a sudden, one of the parties in Herndon versus Lee, the same James Dennis Herndon.

And, James Dennis — on the printing of the ballot, by the way, on the Section that we’re talking about 148, under Section 145, talking about the printing of the ballot, the case of Herndon versus Lee is cited there again for the proposition that, up to 20 days before the election, a man has a right to remove his name from the ballot.

I’m, of course, arguing from the — from what I think is clear from the facts and circumstances.

He has — I think I pretty well summarized it.

He’s given varying reasons for not doing it.

I think, perhaps, they can be made to sound consistent, but I don’t say — I don’t think that they are.

Earl Warren:

I suppose there are issues of facts about it.

Charles Morgan, Jr.:

There are issues of fact involved in this, and I think it pretty well boils down subjectively to what did he do.

Depositions have been taken from everybody, except — we’ve offered affidavits of four of our candidates, plus a fifth person.

We’ve not offered affidavits of two candidates, one of whose — we’ve got this on Christmas Eve and our candidates will get back on to the Christmas, late Christmas.

And, we didn’t have one candidate, who was then ill in Chicago, is now ill down there, the Chairman of the party, he was not a candidate.

But the two Board of Education candidates, I think one signed a committed suicide or something.

Charles Morgan, Jr.:

We just couldn’t make that avail.

We have taken depositions in the District Court, a number of depositions and the United States has taken a number of depositions also, and they have been forwarded to this Court by order of the District Court.

Abe Fortas:

How did those depositions tend to be taken?

Was there earlier contempt proceedings about it in a District Court or —

Charles Morgan, Jr.:

No, sir.

The United States, in the District Court, filed proceedings there to enjoin the White candidates from assuming office and, in those proceedings in this case, the District Court entered an order with the consent of the defendants on December 20 enjoining them from taking office.

Most of the depositions were taken at that time and prior to that December 20 order, the deposition of defendant Herndon was taken, he being fully advised of his constitutional rights, as I recall it, after that order was entered or around that same time, and it was then forwarded to the others, also with the understanding in the record that it would be sent and forwarded to this Court.

William J. Brennan, Jr.:

Mr. Morgan, is there a question of law here whether this is our order that’s in this case?

Charles Morgan, Jr.:

Well, sir, I think it would be convenient to be able to say so.

I think that’s the position —

William J. Brennan, Jr.:

Well, am I correct about that?

Charles Morgan, Jr.:

I don’t think that–

William J. Brennan, Jr.:

Initially, there was an order of the District Court.

An injunction was —

Charles Morgan, Jr.:

Yes, sir.

William J. Brennan, Jr.:

And, that, I gather — it was phrased in the District Court and it was written in the District Court.

Charles Morgan, Jr.:

Yes, sir.

William J. Brennan, Jr.:

And then that was dissolved by the Court of Appeals?

Charles Morgan, Jr.:

No, that was dissolved by the three-judge District Court.

William J. Brennan, Jr.:

By the three-judge District Court, and then —

Charles Morgan, Jr.:

So, we are talking about direct appeal.

William J. Brennan, Jr.:

And then, when you came here last, we — I gather, before the argument, was it, restored the —

Charles Morgan, Jr.:

To the proceedings.

William J. Brennan, Jr.:

Court — the injunction?

Charles Morgan, Jr.:

The proceedings were these.

We went in and we took the words of Mr. Justice Stewart’s order in William v. Rhodes, pretty much wrote an order that way, got a restraining order — a temporary restraining order out the District Court on, as I recall it, September 18.

It was then dissolved on about October 11.

It was dissolved on the 10th but wasn’t filed until the 11th.

We were here on the 12th.

We then came back on the 14th and on that day, as I recall it, you restored the order and the way —

William J. Brennan, Jr.:

We restored it after the argument on the 14th?

Charles Morgan, Jr.:

Restore — restoration of temporary relief, I’m not quite sure how we titled it.

What we asked for was to have the original order of the District Court reinstated.

But, of course, the District Court, by then, it dissolved its own order.

So, what you did was you reinstated the order and then, on the 18th, we had argued —

William J. Brennan, Jr.:

Well, what word — do we use the word “reinstate”?

Charles Morgan, Jr.:

I — it’s a very short page.

I can find it.

Byron R. White:

But we certainly didn’t spell out any of the terms in the orders, did we?

Charles Morgan, Jr.:

No, “temporary relief was restored,” I think were the words.

William J. Brennan, Jr.:

And you don’t think that that presents a question whether it’s our order or the District Court order?

Charles Morgan, Jr.:

Well, I don’t think it does but, even if it did, it wouldn’t matter because in Ship —

William J. Brennan, Jr.:

Well, it would matter as to the contempt proceeding in this Court, would it not?

Charles Morgan, Jr.:

No.

William J. Brennan, Jr.:

Why?

Charles Morgan, Jr.:

Because I think Merrimack — the Merrimack case clearly says that just because jurisdiction is in another Court, it doesn’t mean it’s not also here for contempt, and the same thing is true in the Ship case.

Byron R. White:

And what the decision doesn’t have to be that it’s the order of one or the other.

It could be the order of both.

Charles Morgan, Jr.:

Sure.

Byron R. White:

And if it’s the order of both, what do you suggest?

Charles Morgan, Jr.:

If it’s the order of both, I’d suggest that that, as far as judicial administration is concerned, that this Court should speak to the question.

Byron R. White:

Why?

Why would you say?

Charles Morgan, Jr.:

Because I think it’s been the contempt of this Court.

Byron R. White:

Well, if it’s a contempt — if it is the order of both, though it’s — it’s also contempt of the lower Court, isn’t it?

Charles Morgan, Jr.:

It surely would be, yes.

You could be in contempt of both orders — the orders at the same time but I think, technically speaking, it dissolved the order.

I think the District Court might very well be a proper place to gather evidence.

Byron R. White:

It certainly —

Charles Morgan, Jr.:

In Ship, it was done by a commissioner.

Byron R. White:

Certainly, cases which make it quite blatant that the same may actually be in contempt of both the lower Court and this one.

Charles Morgan, Jr.:

Oh, yes, sir, you can say that.

Now, Section 148, again, has an additional sentence that this — the history of this Section, it begins about —

Byron R. White:

Well, I didn’t — just to clarify, do you say that it’s our — it’s — your position is it’s just our order.

Charles Morgan, Jr.:

Well, I think I have to take that position because I really think that’s what it is.

Byron R. White:

Why do you have to think that?

Charles Morgan, Jr.:

That’s what I think it is.

Byron R. White:

If it is the order of the District Court, too, you still insist that the order shall pose the issue here.

Charles Morgan, Jr.:

I couldn’t hear you.

I’m sorry, sir, the last part?

Byron R. White:

If it is also the order of the District Court, you still insist that the order shall pose the issue here?

Charles Morgan, Jr.:

Yes, sir.

I believe that the order should issue here and the policy reasons that I believe and disagree, I’m sure, with the Solicitor General, and with many others.

The reason I think the order should issue here is because I think that this Court sets the pace for every District Court in the south and crossed the line, and I believe that this Court should show the way.

Now, another sentence in Section 148, which we’ve attacked the constitutionality of, and that is the last sentence which says that a person cannot appear on the “more than one party” label or emblem on the ballot.

Name cannot appear twice.

Well, this sentence was added to the Alabama statute, which previously contained no sole — the “no such prohibition.”

In the year 1909, it was added by — by amendment following, of course, the disenfranchisement of Negro voters in the south.

Primary came into existence in Alabama about 1903.

Alabama used literacy tests, property qualifications, and we also had a Grandfather Clause of a type.

We called it Abiding Grandfather Clause.

It fought many wars, it’d come along.

Just preceding that, in 1892 in Alabama, there was great political turmoil.

Reuben F. Cobb was running on the Populous ticket.

Coalitions and infusion were taking place all across the south.

1894, you have the same.

Cobb lost by 11,000 votes.

1894, he lost by a greater margin.

In 1896, you recalled that William Jennings Bryan was nominated by two political parties for President, by three really.

I think the Free Silver Republicans were with him also.

Charles Morgan, Jr.:

And, at that time, there was a dispute over who would be Vice President.

The Democrats nominated Sewall, the Republic of the Populous nominated Tom Watson.

The Fusion Movement in the south at that time, somewhat different from in New York and the rest of the country, the Fusion Movement offered an opportunity for him on our political party to attempt to reach out to bring Negro voters into its grasp.

And, in those elections in Alabama, there was competition for the Negro vote.

There was racism.

It resulted in — after the elections of 1896 in North Carolina.

It resulted in the terrified political problem to a number of urban southerners and a number of Populous because there were about 1,000 elected Negro officials in the State of North Carolina in the year 1896 and, in that context, the Populous Party went down to destruction.

Now, this political movement in this state, with Section 148 on the ballot, cannot accomplish Fusion.

They cannot win a democratic primary election, and the practical reason they can’t win the primary election is because, by the state’s own documents, approximately one-third of the voters in Alabama now are illiterate or semi-illiterate.

And, if you walk into a polling place in the primary election, the ballots are arranged differently at each polling place by alphabet.

So, consequently, you have to walk in and mark, and mark, and mark.

These same candidates here run once and lost then come back and win again when they could vote a straight ticket, and if you cannot combine, in Alabama, you’re not going to be able for this — to have this party move out in an integrated effort to bring forward the best candidates it can find from our political parties, as well as from its own.

Thurgood Marshall:

Excuse me, Mr. Morgan, but where is our order?

Charles Morgan, Jr.:

Your order in the —

Thurgood Marshall:

The one you’re talking about, the order that this Court issued.

Charles Morgan, Jr.:

It’s not in the —

Thurgood Marshall:

Well, I’m sure it’s here.

I just can’t find it.

Charles Morgan, Jr.:

It must be in the —

Byron R. White:

It’s — I think, you’ll find it in the journal.

Charles Morgan, Jr.:

Got it.

Byron R. White:

For October 14.

Charles Morgan, Jr.:

It’s —

Byron R. White:

Got it?

Charles Morgan, Jr.:

Here it is.

Thurgood Marshall:

I have it.

Charles Morgan, Jr.:

It says the order restoring temporary relief is continued pending action upon the jurisdictional statement.

William J. Brennan, Jr.:

It was one that preceded that.

Charles Morgan, Jr.:

There was one that preceded that on the 14th, and that was the one that, I think, restored custody of the same order.

William J. Brennan, Jr.:

Which one is that?

Charles Morgan, Jr.:

We found that, too.

William J. Brennan, Jr.:

Which one are we talking about?

Charles Morgan, Jr.:

Well, I think we’re talking about both.

Well, I think we’re talking about both of them, sure.

William J. Brennan, Jr.:

But, I gather, the — we restored with one and then continued the restoration with the second.

Charles Morgan, Jr.:

That’s right.

So, I reckon, we’re talking about order of the 14th which was restored by the order of the 19th, and that at least gets us the one order.

In the — people — Section 148’s last phrase, which we do have under attack here, which we have under attack as a declaratory judgment, and I think it’s very important to think in terms of Williams v. Rhodes and the problems of the administration of the law as far as the future is concerned so that there don’t have to be later election cases brought on the eves of elections, so that matters can be adjudicated long enough in advance so that people will know what they’re doing.

But, I’ll just point out to you that, in 1960, we’ve heard a great deal of talk — we heard a great deal of talk in this election about the Electoral pillage but 1960, had it not been for the liberal party in line in New York, John Kennedy would not have carried New York.

And, had John Kennedy not carried New York, the 15 electoral votes that went to Harry Burke, 6 from Alabama, 8 from Mississippi, and 1 from a defaulting Republican elector in Oklahoma would’ve been sufficient then to have thrown the election into the House, and then, to have thrown also into the electoral college preceding that time.

There’s no reason for the restriction that I can find, for the Anti-Fusion Movement other than to restrict the actions of third-parties in the same manner that was condemned in Williams versus Rhodes.

The party cannot place the names of other nominees on the ballot, and it finds itself in deep difficulty.

In this case, of course, we find that with respect to the electoral vote and, incidentally, it’s quite important with respect to that vote for the matters to be adjudicated.

We have some very real problems here with respect to the primary law in the State of Alabama which allows you to have a primary if you have a 20% vote in any county.

In this last election, the NDPA got more than 20% of the votes for office countywide in 12 counties.

The combined vote of electors, AIDP and NDPA electors, would have allowed an additional 12 counties to allow us to come into the primary law and have this own party — to have its own primaries in the future.

In short, it covers the rest of my time and simply say that we feel that the vindication of this Court’s order requires the defendant we required to show cause why he should not be held in civil or criminal contempt.

Earl Warren:

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice and may it please the Court.

First, a word about the matter of contempt, we don’t wish to take any absolute position with respect to that matter.

It seemed to us that the order of this Court, merely restoring a detailed order of the District Court, and the violation of the terms of that order of the District Court might be viewed as well as contempt of the District Court’s order as contempt of this Court’s order, perhaps in both, if in both or if only at the District Court’s order, it would seem to us appropriate for that matter to be explored more fully in the District Court since there are admittedly disputed questions of fact to be explored.

On the one end, Judge Herndon, as we understand it, was served sometime back with a copy of the order of the District Court in September 18.

It was, therefore, presumably fully aware of its terms and how it applied to him and the candidates that he is carrying.

If he received notice that that very order, which he’d already seen and studied and presumably he was ready to effectuate, had been restored by order of this Court, he needed no further notice in order to act on it.

It does appear, however, that he received no formal communication of the action of this Court either from a clerk of this Court or from the attorneys representing Alabama before the Court.

Why he received no notice from the Attorney General’s Office of Alabama is perhaps one of the matters that deserve exploration.

He did admittedly read some accounts of this Court’s action in the newspapers, but we’re not clear whether that came home to him or not.

Under those circumstances, it seems to us that the matter is not yet ready for adjudication, that the District Court is obviously a more convenient forum.

That jurisdictionally, since it was the order of that Court, however affected by a subsequent order here, it was violated.

That Court would have jurisdiction to explore the matter.

Abe Fortas:

Precisely what sort of order do you think we should enter, Mr. Claiborne, if we adopted that approach to the problem?

Louis F. Claiborne:

Our suggestion, Mr. Justice Fortas, is that this Court in its judgment, among other relief, direct the District Court to undertake such further proceedings with respect to the matter of contempt as it deems appropriate.

Abe Fortas:

Contempt of what?

Louis F. Claiborne:

Contempt of orders issued in the case (Voice Overlap) —

Abe Fortas:

Well, that was in fact why I was asking this.

Louis F. Claiborne:

Excuse me.

Abe Fortas:

Would that foreclose the possibility that there was a contempt of the order of this Court or would we, in effect, be asking the District Court to determine whether there had been a contempt of the order of this Court as well as of the District Court?

Louis F. Claiborne:

I would suppose, Mr. Justice Fortas, that the Court would wish to leave that open.

That, if the proceedings in the District Court indicated any contempt, whatever had been arguably committed sufficient to cause issuance of an order to show cause or such further proceedings that might be appropriate, then the District Court might refer that matter back here or might proceed ahead on its own.

I wouldn’t suppose this Court would need to foreclose itself from, at a proper time, considering whether a contempt of its own order had been —

Abe Fortas:

Well, I’m sure you see what’s bothering me as a procedural matter.

In United States against Ship, there was the appointment of a Commissioner to take testimony and that was pursuant to an order to show cause, wasn’t it, why the defendant should not be held in contempt?

Louis F. Claiborne:

As I understand the proceedings in Ship, Your Honor is correct.

The order to show cause issued here and, in order to explore the factual setting, a Commissioner was appointed by this Court.

I’m not suggesting that the District Court stand in the place of that Commissioner that, rather, since its appears the District Court’s order was violated, that it might, at least initially, undertake the proceeding in its own name on suggestion of this Court when it — when jurisdiction is restored.

Abe Fortas:

That’s what the District Court might have to do, is to proceed to determine whether there’s a contempt of its own order.

Now, without some further specification by this Court for which I know of no precedent, maybe there’s one.

The District Court — it would be a little awkward for the District Court to proceed to determine whether there’s been a contempt of an order of this Court.

Louis F. Claiborne:

Well, in truth, Mr. Justice Fortas, I would think one would follow from the other if the District Court should conclude that, upon further exploration, either there were no colors to proceed further in contempt.

Then I would think that while this Court be free to reexamine the matter.

That should be the end of it.

My —

Potter Stewart:

Has there any — has there been any contempt proceeding initiated in the District Court?

Louis F. Claiborne:

Not by the United States, insofar as I know, not by the plaintiffs in the case.

United States did file, as this Court was made aware by memorandum filed on — months ago by the Solicitor General.

Untied States did intervene in the proceedings there, became a party, and did secure orders, the purpose of which was to maintain the status quo to prevent the promulgation and effectiveness of the election in Greene County on the ground that it was defective, until such time as this Court could adjudicate the merits, but we did not proceed in — by an order to show cause and defense.

Abe Fortas:

Mr. Claiborne, if you’ll forgive me, is there — I forget, is there another instance of — reported instance of proceedings in this Court on contempt in addition to Ship?

Is there anything else in the books?

Louis F. Claiborne:

I think there is a very old case in Sabine, Dallas, but I frankly forget the —

Abe Fortas:

Is that cited, do you recall whether it’s cited in any of the briefs?

Louis F. Claiborne:

I think it is not.

The other case that I’m about to cite in here are Merrimack which, as I remember, involves a Court of Appeal and a District Court, Barnet which involved an order issued directly by Court of Appeal but, arguably, also involving orders of the District Court and, finally, Ship which involved only an order of this Court and not even — no order of the District Court, the District Court having denied stays the habeas corpus to the prisoner.

So certainly, in recent history, I think Ship is the only precedent, Justice Fortas, so — and the —

William J. Brennan, Jr.:

Well, Mr. Claiborne, as we follow the government’s suggestion, there will be procedural tangle, isn’t there?Ordinarily, I take it, if we issued an order to show cause and asked the District Court to take testimony on a factual controversy, I gather, its conclusions as to fact will be subject to, what, to exceptions as in the case of master’s report?

Louis F. Claiborne:

Well, I may have muddied our own suggestion, Mr. Justice Brennan.

It really was that this Court take no action itself with respect to the matter of contempt, except to leave the District Court free to proceed on the theory, pro tanto at least, that it was the District Court’s order that was —

William J. Brennan, Jr.:

That is, leave the District Court to proceed if it determines that there was a contempt of its order in a contempt proceeding in that Court for contempt to that order and let alone any questions that concern a contempt of any order of this Court, is that it?

Louis F. Claiborne:

I think so.

William J. Brennan, Jr.:

I see.

Louis F. Claiborne:

Though, I dare say, that the implication of a provision and mandate of this Court expressly leaving the District Court free to proceed in contempt would carry the implication that this Court at least tended to be viewed the violation, if any, as one of that Court’s order or be it restored here rather than an original matter here.

Now —

William J. Brennan, Jr.:

Well, the District Court, quite appropriately, take no action whatever under your formula.

Louis F. Claiborne:

Well, I should think that if the District Court took no action whatever on the ground that its own order had expired and was no longer a viable law, Court order which could be violated, then this Court would have to reexamine to that.

If, however, it took no action because it found from the facts already before it or then before it that there was no cause to proceed further, being no indication — sufficient indication of criminal contempt to justify those proceedings, this Court might likewise let the matter rest.

I’m not suggesting which outcome is more likely or more appropriate.

If I may, I’d like to turn to the merits because where the United States has participated here with the view to speaking to the merits rather than to the matter of contempt.

As we see this case, it does involve a serious abridgment of the rights of Negro citizens in Alabama to fully participate in the political process.

And, that comes at a time when they are now registered to vote.

The question is whether they shall be committed to cast their ballots for the candidate of their choice.

It seems to us, this effort — previous efforts must be condemned, and that is so even if one does not assume that this is a deliberate discrimination on account of race.

Even though in light of history, both ancient history and recent history, it’s difficult to indulge in that assumption, but what is at stake here are at least three rights: the right of persons to associate together for political purposes to form an effective party, in this case, something of a splinter-party from the Democratic Party.

There is also the right of the candidates themselves, specific candidates involved here, to run for political office to have votes casted on that is to be on the ballot.

And, finally and perhaps most important, are the rights of a group of citizens here, as it happens, a majority of the citizens in these counties, to vote for, to select, to cast their votes for the candidate of their choice.

If they’re not permitted to that as in Greene County, if they only have one slate, they’re affectively disfranchised.

You don’t want to vote for these candidates, their own candidates are taken off the ballot, and their folks for all offices are defeated.

Now, that was done in this case.

There was 67 candidates being with, that is, local candidates.

I’m only speaking of the local candidates because candidates for Presidential elector, for national office and for statewide office were defeated by any combination of statistics.

Therefore, it seems to us is a practical matter, perhaps the legal matter.

The case is live only with respect to the local candidates, and then only with respect to those 23 of them who prevailed or would have prevailed, 23 out of 67, approximately a-third prevailed or would have prevailed.

Louis F. Claiborne:

17 of those were, in fact, elected in three counties: Marengo, Etowah, and Sumter Counties.

They were elected, however, at the very minor posts: Justice of the Peace, Constable, in one case Chairman of the Board of Education.

There was more, it’s taking Greene County, four seats on the five-man Board of Commissioners which governs the county were up for election, and they were NDPA candidates for each of those four posts.

The statistics make it perfectly clear they would have prevailed had they been on the ballot.

And, also, there were two seats on the five-man Board of Education and Mr. Morgan pointed out, the local head of this party was already sitting on the Board of Education, and there were now two more seats up and, again, the Negro candidates from all that appears would have prevailed for those seats.

Potter Stewart:

What do you mean by that?

How can you —

Louis F. Claiborne:

The way we judged —

Potter Stewart:

— assert that?

Louis F. Claiborne:

— the actual votes cast for the White candidates were at the best, taking with the one with highest numbers because there are number 1,709, the number of straight party votes for the NDPA ticket which was officially reported the District Court on its order was something like 1,938.

Those votes, straight party votes, for the NDPA ticket would, opposed to counted, for the local candidates had they been on the ballot, this is rather clearly seen if one looks at the sample ballots we have at the back of our brief.

The first one being the one used in the “for all absentee voters,” the second being the one youth or perhaps teens voters which includes the six local candidates.

The general impression one gets from reading what there is to the record in this case is, first, what one does whether it’s entirely an accident that where there was most at stake, somehow these candidates didn’t appear on the ballot.

Then, one has a strong impression that there’s been a tremendous amount of vacillation.

The Secretary of State said she would certify these people, then she wouldn’t, then she would.

Finally, she didn’t.

The reasons given vary from time to time.

The final and only arguably serious reason that was ultimately given was given only after this lawsuit was filed and never invoked before, nor was it invoked in other counties.

Apparently, it was thought appropriate to invoke it in Greene County.

The net result, in any event, is that a majority of the voters in these four counties were denied an opportunity, if the judgment of the District Court prevails, to cast their vote for the candidate of their choice.

Now, the provision most immediately involved is Section 274 of the Corrupt Practices Act, subsections in the Alabama Code which was a part of the Corrupt Practices Act, which provides that within five days after he designates himself to run for elective office, he must file a designation of his finance committee.

In fact, failure to that timely, it is alleged, is the reason why these candidates were kept off the ballot in Greene County and should’ve been kept off the ballot, according to the state, elsewhere, though the judges of probate in those other counties didn’t seem inclined to invoke this provision.

It’s not a very critical provision of the election laws, at least with respect to local office.

If you look at some of the appendices we’ve filed, you’ll see that these candidates spent something approaching $150.00 in the primary and general election campaign.

The question of having a finance committee, a treasurer, or disbursement of expenses, tallying of contributions is not critical, it seems to us, with respect to that kind of office.

Notice it appears that Alabama took this requirement very seriously.

As I just said, in some counties it appears to have been waived all together.

It doesn’t appear, as Judge Johnson pointed out, that the state officials themselves ever invoked these provisions to respond to him, nor is it easy to see why it would matter, assuming there’s no corrupt purpose, but simply an oversight why it would matter if this designation were filed a few days late if it had been brought to the attention of the candidate.

What’s more, the provision isn’t very clear on its face.

It’s not clear when the five days started to run.

Louis F. Claiborne:

For the White candidates, the five days apparently started to run from the time they first announced themselves as candidate on March 1 because they never filed anything else.

They then filed the designation, first, in announcement and, in the same form, they designated themselves as their own committee, which is what the form provides for as a very pro forma operation.

Earl Warren:

They all did that in that state?

Louis F. Claiborne:

They all did that, White and Negro candidates.

For the White candidates, that was apparently deemed sufficient.

For the Negro candidates, it was not.

It was held that they should’ve filed a second designation of themselves as their own finance committee, if that’s what they chose to do, after they formally submitted their nominations as candidates of this NDPA Party on September 5.

Potter Stewart:

Is there any Alabama statute that require double pattern?

Louis F. Claiborne:

The Alabama statute, which is reprinted in our brief, at page 3 (a) I believe, is unclear whether more than one such designation is necessary.

It merely reads as follows.

Within five days of the announcement of his candidacy for any office, each candidate, this is for a state office, shall file with the Secretary of Sate and each candidate for a county office shall file with the judge of probate, and each candidate for a circuit and so forth, a statement showing the name of not less than one and no more than five persons elected to receive and expend all of it, and so forth, moneys received.

Nothing whatever about doing it again after the primary seems to be clear, as a matter of Alabama law, if this applies to primaries, no suggestion that it must be done twice and, indeed, implication in this record is that it need not be done twice, at least when you’re successful in the primary, nor does this requirement say that you must announce the party with which you’re affiliated.

That’s part of the Garret Act and, as to the Garret Act, we say that it was not properly cleared under the Voting Rights Act of 1965, and therefore, cannot be made applicable to the selection.

Are there any valid Alabama decisions, judicial decisions, asking him to if he designates himself?

Louis F. Claiborne:

There is a decision involving people in Greene County, Herndon versus Lee.

There’s Judge Herndon and Lee is presently Sheriff Lee, whom we were told is still sheriff, though the election of 1966 was enjoined by Federal Court.

It was there held that the Negro candidate for Sheriff, Gilmore, could not be placed on the ballot because he had filed his designation within five days after he had accepted the nomination of the Freedom Party, rather than five days after the party had certified his nomination.

That’s inconsistent with the way in which it was applied to the White candidates here.

The Democratic Party certified these White candidates and nothing further was filed by the candidates.

Their designation was deemed sufficient back on March 1, two months before they were ever nominated before the primary had been held.

Finally, it seems to us that in this case, and generally but specially in this case, this requirement of Alabama law was employed unfairly because no opportunity was afforded to these candidates to correct what is, in the circumstances, a mere technical defect and that depriving them of a place in the ballot and depriving their constituents of a vote is to make too much turning on to the law.

That reason, we submit, the judgment below should be reversed, that even actions ordered in Greene County.

Earl Warren:

Mr. Redden?

L. Drew Redden:

Mr. Chief Justice and may it please the Court.

The argument that I have proposed to make for the appellees I represent here does not cover the contempt question.

Judge Herndon is separately represented on that so I won’t be touching on that, and I feel a little at a disadvantage on a part of the response for the reason that I consider the counsel for the appellants, insofar as he did refer to the merits of this case, referred only and then only briefly to an attack on Title 17 Section 148 or the last sentence thereof and did not make reference, as I see is argument, to the other matters that are raised in brief and that were raised in the submission that the parties had attending itself to the merits here the last time.

I do consider, however, that the Solicitor General in his argument explored most of these avenues and I want to direct myself, if I may, to his merits.

I think that there’s a little misconception as to the facts and I would like to ask for the Court to bear with me just a moment.

To go back to the beginning of this entire picture or facture, the Solicitor General makes a point, for example, in brief that this case has now been mooted as to the rights of all persons except one, those in Greene County, who were not on the ballot and who the argument proceeds were due to and placed on the ballot.

And then, those in three other counties: Etowah, Marengo, and Sumter Counties who were victorious, some of whom were opposed for these officers, some of whom were not opposed, some of whom were the only persons on the ballot because the status of their election is affected.

L. Drew Redden:

Certainly, we agree with that, but we don’t intend to let the picture be confused for this reason, that we consider the third point that the Solicitor General mentions in brief to be the most important part — point as far as the State of Alabama is concerned, and that is a validity of these statutes, the validity of the Corrupt Practices Act, the validity of the Garret Act, the validity of the other statutes under attack, the question of whether the Garret Act is due to be subjected to the Voting Rights Act of 1965, prior to its efficacy.

Those are the questions in the case.

Those are the questions that gave rise to the case, and that’s what we came here on the first time and, as far as the State of Alabama is concerned, we are still here.

Now, this is not to demean or belittle the fact that this Court probably has to decide the fate of particular people, that it has to decide, for example, whether there will be perhaps an election in Greene County or not, a new election, maybe it has to decide that, it’s asked to.

It has to decide then perhaps whether certain persons who were elected under the NDPA ballot in these three other counties are due to continue holding their office, but I think it has to decide this because it has to decide the validity of the statutes and then their application to these particular persons.

And, I make this point only to say this, that the Solicitor General is in error, and I think completely unwillingly, when he says that the Negro candidates, as he says, the NDPA candidates, because they were not all Negro, there were some White and some Negro, but the candidates of the National Democratic Party of Alabama, he said, filed a declaration of intent and a designation of committee on March — on or before March 1, 1968 and that — then, he says the White candidates, I have presumed by that he means the candidates of the regular Democratic Party of Alabama for nomination in this primary, filed such a statement.

And then, he said, that the law is so unequally applied, or at least I understand him to say this, that the law is so unequally applied in Alabama that such a filing was held to be good for all time as far as what he called the White candidates were concerned and not good so far as what he called the Negro candidates.

Byron R. White:

Did the District Court consider that allegation?

L. Drew Redden:

I don’t think that allegation has actually been made before for the reason.

Byron R. White:

Well, there’s been no finding, one way or another, as to discriminatory importance.

L. Drew Redden:

That’s right.

It’s a point — this is a point that I was getting to.

Byron R. White:

District Court just upheld the law.

L. Drew Redden:

The District Court found that the statutes under attack, one, were not unconstitutional on their face, two, were not shown to have been unconstitutionally applied and, three, the holding was that the Voting Rights Act of 1965 was not involved.

Now, this, as I understand it, is the decree that was appealed from.

It said one other thing in the decree, and that is that it was not then going into the details.

We were dealing with 123 people, to start with, not the 67 the counsel speaks of.

We were dealing with 123 people and it said, since we have made these rules, then what we are concerned with is a question of state law and we’re not going into the detail of it.

It can be handled in the customary fashion, so that it didn’t make that examination, but the point is that the record in this case will reflect that counsel’s statement was wrong with reference to the 67, approximately, of the NDPA candidates who survived the original agreement that they weren’t qualified, and this was done by letters of counsel.

The Court is familiar with that.

It’s in the record in this case.

This was done by letters of counsel, back and forth, written at the order of the court.

It certainly is true that some NDPA candidates filed declarations of intent prior to March 1, and that they filed on the same form that was used by other candidates and that that declaration of intent contained a designation of committee, and designated themselves, as counsel points out.

Now, some did and some did not with reference to the six people in Greene County who were left off the ballot.

My understanding is, and I believe that these are the facts, that all six of those individuals had qualified as candidates in the democratic primary of the regular Democratic Party of Alabama which was held on May 7, 1968.

That, in that primary, there were two candidates for each of the position, one, the NDPA candidate, these six, the other, the candidate of the regular Democratic Party of Alabama.

So, it was a two-man race, as I understand it, in each one of these.

They filed identical papers.

There’s no question about that, as far as I know, and they were placed on the ballot.

They were held to be qualified to be on the ballot in the democratic primary.

L. Drew Redden:

Now, each of these six was defeated in the democratic primary and, though I’m not trying the contempt case, I do point out, as we noted in brief, that this is an unrestricted primary, that everyone is allowed to vote in it.

It’s not a close primary.

Counsel in his brief called Alabama a no-party state when it comes to holding its primary.

So, I don’t make any brief for the fact of who would’ve won in November had both parties been on the ballot and campaigning against each other, but, in May, that was the result.

Now, counsel makes a point and I think this is a substantial question.

Byron R. White:

And the only candidate they were letting in the regular primary?

L. Drew Redden:

Yes, sir.

Byron R. White:

They were candidates in that party.

L. Drew Redden:

Yes, sir.

Byron R. White:

That’s what the papers were about.

L. Drew Redden:

That’s right.

Counsel makes — the Solicitor General makes a very good point.

I think it raises a substantial question because we were not confronted with the particulars, as I’ve read before, but let me illuminate it just a little bit.

They did file those papers, identifying themselves, and the law allows it to be done in this fashion, as a candidate of or candidate seeking the nomination of the Democratic Party for a particular position in the primary.

Now, what they are maintaining is this, that on the same day that that election, that primary election, was held, that the National Democratic Party of Alabama in that county also conducted a mass meeting on the same day because this isn’t that at which political parties can nominate in Alabama, that they conducted a mass meeting.

And, I will be frank to admit that I’ve learned, in this case, I suppose that a mass meeting can be two or more, but that’s not a part of the issue here.

That issue was resolved unfavorably to the position of the appellees in the District Court in the only point on which decision was made on, and we’re not raising it here.

But, they represent that, on that same day, they were nominated by the National Democratic Party of Alabama for the same offices in a mass meeting.

And, what is said now to the Court is that the declarations of intent and the designation of committee that they made for the handling of their finances for this primary in which they were eliminated and which, for all that appears, they were no longer a candidate because nobody knew of the candidacy of these people, these candidates and most of the other candidates of this party, until about September 5.

And, I think the Court will recall that the record shows very clearly that the certifications of nomination descended from Huntsville, Alabama simultaneously by registered or certified mail on the various probate officers in the 67 counties of Alabama and in the Office of the Secretary of State of the State of Alabama.

Now, I don’t know, when I say to the Court I think it has not been ruled on Alabama, whether a designation of committee under the Corrupt Practices Act made in a situation in which a party — an individual does identify himself as a participant in the primary election process of one party is an adequate compliance with the Corrupt Practices Act.

When he turns up later to be, and when he loses that race, and turns up later to be the candidate of another party that nominated on a different fashion, purportedly on the same day, where his candidacy itself was not known for a couple of months later because it was not declared, I don’t know the answer to that.

I do suggest to the Court —

Thurgood Marshall:

Well, did these regular candidates file anything after the “mass meeting”?

Did they file any designation after the mass meeting?

L. Drew Redden:

No, sir.

The only things that were filed after would have been reports of expenditure.

These would have been separate reports.

Thurgood Marshall:

Well, weren’t they — doesn’t the law require that once they become the nominee they have to file something?

L. Drew Redden:

Only reports of expenditure.

Thurgood Marshall:

That’s all?

L. Drew Redden:

Yes, sir.

Thurgood Marshall:

Well, what about the — the other candidates didn’t file that either.

L. Drew Redden:

No, sir.

Thurgood Marshall:

What I’m — I understood the point was that the original papers that were filed were different simply because one group won and the other group lost.

L. Drew Redden:

Only in this fashion, the law provides that those papers may be submitted to the office of a party where the party conducts the primary.

This will constitute a satisfaction of the Garret Act and Corrupt Practices Act.

The only thing that has happened here is that there’s not an identification of this individual as a candidate after May 7, 1968 because he lost the race.

Thurgood Marshall:

And I understand that there’s no difference, under Alabama law, between a primary election and a mass meeting.

L. Drew Redden:

Each may legally designate candidates of that political party.

Thurgood Marshall:

Then, I understand your position to be that, in this case, two things were held the same day, a primary election and a mass meeting.

L. Drew Redden:

I say that that’s what the appellants say.

The appellants —

Thurgood Marshall:

Well, what do you say?

L. Drew Redden:

I say that they say and I assume it happened because they say that they were nominated by a mass meeting on the same day that they lost in the primary election.

That is their allegation.

Thurgood Marshall:

That’s what they say?

L. Drew Redden:

Yes, sir.

Thurgood Marshall:

So, the other side is relying — the regular party is relying on the primary and the appellants say that this was not only a primary.

It was also within the Alabama law in mass meeting.

L. Drew Redden:

Well, that would be a separate thing that they contend.

Thurgood Marshall:

And you say there’s nothing in the Alabama case in one way or the other.

L. Drew Redden:

No, what I’m saying is that there’s nothing in the Alabama case that exists.

Certainly, there’s nothing in the Alabama law that would prevent, as I see, a person from hedging his bet, if that is uncouth to say.

He can qualify as a candidate in the democratic primary.

The law says that if another party, not holding a primary, is a going to nominate candidates for office, it must do it by a mass meeting, which mass meeting must be held on the same day as a primary election.

Now, he may also be a candidate there.

He can lose in one and win in one.

Thurgood Marshall:

It will happen on the same day?

L. Drew Redden:

Now, the law does provide that he can only be on the ballot once and only under one emblem, that he couldn’t be the candidate of both parties.

L. Drew Redden:

That, actually, if you’re going to say that something has been mooted as the Solicitor General says, that question, well, has been mooted in this case because the only persons who were on the ballot twice lost, as far as I know.

I’m not aware of any instances in which they won both offices, as far as that was concerned.

But, what I’m saying merely is this.

If this Court ruled, for example, that whatever was done by six people from Greene County in order to become candidates in the democratic primary in the spring of 1968 constituted an adequate compliance with the provisions of the Garret Act or the Corrupt Practices Act.

It is not a basis for holding the statutes invalid or unconstitutional.

This is a State of Alabama’s interest.

We’re not pushing the situation of a particular candidate.

What I’m saying is, I recognize that there’s a substantial question raised here and one that has not been resolved by Alabama law, that we have persons who filled out these forms.

Abe Fortas:

But, Mr. Redden, I take it that that — your argument, thus far, goes to only one branch of the submission of your adversary on this point.

The other branch of their argument is, as I understand it, is reflected in Judge Johnson’s dissent in which he says, as I recall, that the law has been discriminatorily in — applied here.

That is to say that it has not been applied in the past and that, for whatever reasons, the state election officials chose to apply that provision of the Corrupt Practices Act in this case to these people.

Now, what I’d like to know is, and I don’t recall, what, if anything, is there in the record to support the proposition that the law has — was discriminatorily applied?

That is to say that these instances were selected for the application of a law which had not been faithfully applied in the past.

L. Drew Redden:

Mr. Justice Fortas, I think the record does not support his conclusion.

The record contains very little in a substantial way, and I’ll give the Court my recollection of it.

The most populous county in Alabama is Jefferson County or Birmingham.

It has approximately three-quarters of a million, population.

The probate judge of that county, Judge J. Paul Meeks, testified by deposition in the case, and he testified that there were approximately 2,000 compliances with the Corrupt Practices Act filed in his office alone in connection with the spring elections and nominations in Jefferson County, that will be the compliances for local office, and that everybody files them.

That, it is checked and that this is a requirement before he was certified a nominee.

The only other testimony that I think is, well, let me withdraw that — Mrs. Amos, the Secretary of State, testified that these are uniformly filed in her office.

They are required of the candidate before he’s certified.

Now, Dr. Cashion, who was the State Chairman of the National Democratic Party of Alabama, testified that his party was aware of the existence both of the Garret Act and the Corrupt Practices Act, was aware of the requirements, and that they caused to be printed and the record contained some copies of it.

A form bearing the legend from the printer, National Democratic Party of Alabama or NDPA if I forget whether the name or the initials was used, but it was printed at the order of the National Democratic Party of Alabama containing the form of declaration of intent which satisfied the requirements of the Garret Act and the designation of committee, and that these were disseminated to the County Chairman and they were told of the requirements.

Abe Fortas:

Is there any record of candidates other than these being disqualified in an Alabama election for failure to make this filing or for late filing?

L. Drew Redden:

The only — I think we would be disadvantaged to say how often this may happen for the reason that you would not know of it unless the action of the certifying official either prompted litigation or publicity, one of the two problems.

Abe Fortas:

I understand that.

I was asking, is there any such record.

L. Drew Redden:

Yes, sir.

We have three or four reported cases, all of which are cited in brief, and we have a couple of opinions of the Attorney General of Alabama which resulted from this type of thing, and of course, this has led to the uniform holding in the cases that the provisions of this Act are mandatory when raised in a direct proceeding prior to elections in Alabama.

The directory on there and the United States Court of Appeals for the Fifth Circuit has said that, absent of constitutional question, that that is a ruling that will be binding on it and found it to be so but, as I say, that the record, to the extent that it touches on the question of enforcement or use, does not support the dissenting opinion’s finding.

L. Drew Redden:

It supports the majority opinion’s finding.

I think the cases do.

Now, I don’t think it’s a crippling thing to this position that Judge Johnson found, well, said most of the time that it has been enforced it was not done by the state at its own motion.

Well, I think it normally is true that the people who really keep you strained in political campaigns are going to be the adversaries.

I mean, that they certainly are going back to the past.

I don’t think it is disparaging to the law — to the enforcement of the law to say that a private party often has brought the litigation, but the law has been enforced and it has been the law for 54 years, since 1915, almost essentially without change.

But, we make the point again that, of course, we have come down now because of the fact that the election has been held, we’ve come down to the point where — are those who remain, the winners and those who were left off the ballot, we would say that perhaps some did and some did not execute these doctrines.

As to the Greene County people, I think that someone, whether it’s this Court or the United States District Court in further proceedings, that this Court might order has a substantial question to decide whether, under this valid law, the Corrupt Practices Act, that what was done for the purposes of entering into the democratic primary, would suffice as a designation of a campaign committee to receive contributions for any other race that that candidate might have made during that same year.

What’s the Alabama law with respect to a man who gets on the ballot indirectly and these elections attended by the man failed to comply with the Corrupt Practices Act?

L. Drew Redden:

The failure to comply with reference to this portion of it would be held where the issue was first raised after the election, not to void the election, as I read the cases.

Of course, I do make this point.

That, though we are standing now subsequent to the election, we have been disputing with this issue since September of 1968, prior to the election and that period is held mandatory.

Now, I think that there are some other provisions of the Corrupt Practices Act that would affect the ability to hold office after the election, but I don’t make that point here because they’re not involved.

But, we keep returning to this point.

We are here to uphold the validity of these statutes.

We say that the record shows that they have not been unconstitutionally applied and they certainly are constitutional on their face.

With reference to the Garret Act, I would like to address myself to that very briefly.

This Court is aware from the record and the briefs and our prior arguments that these — piece of legislation was enacted subsequent to the Voting Rights Act of 1965, that the effect of it is to require anyone who desires to be a candidate for office to file a declaration of intent by March 1 of the election year.

I would like to emphasize at this minute the full picture with reference to the right or ability of people and political parties to get on the ballot in Alabama.

I think we’ve got a situation that’s exactly the reverse of Williams against Rhodes.

The point is made by the Court there, that it’s impossible or very difficult for a new party or smaller party or a new large party to get on the ballot in Ohio, that no provision was made for write-in candidacies and that independent candidacies were almost unknown under the law of Ohio.

In Alabama, an independent candidate for a local position can get on the ballot by having a petition signed by 25 names, by 25 voters in a statewide election by 300 votes.

Now, the Court reviewed and William against Rhodes, the laws of some of the states with reference to disease requires more than 1% or less than 1% is just minimal.

It’s a fraction, or if a political party, that party could nominate by primary or by mass meeting or caucus, as it’s called.

William J. Brennan, Jr.:

May I interrupt?

L. Drew Redden:

Yes, sir.

William J. Brennan, Jr.:

Suppose that we recommend, I gather that your view would say that if a party nominates by mass meeting, this requires them designation, what is it, within five days after what —

L. Drew Redden:

Announcement.

William J. Brennan, Jr.:

Must be satisfied?

L. Drew Redden:

Announcement of the candidacy.

William J. Brennan, Jr.:

So, if you have the mass meeting on May 7, or whatever the state is, but the announcement doesn’t come until September.

Then, there is five days within the announcement late in September, is that it?

L. Drew Redden:

That would very likely be true because, unless they did something that would amount in contemplation of the law to an announcement of his candidacy.

I would think that where there’s — lets’ say that there’s no report of the mass media that is held private, it’s not reported, and that there’s not activity which would amount in substance to an announcement of candidacy.

In other words, if I’m running for sheriff, I may announce it by virtue of my campaign activity as opposed to some formal announcement.

William J. Brennan, Jr.:

In other words — well, then there’s no requirement of a formal announcement that she must file something — that someone that you are a candidate for this office, nominated at a mass meeting?

L. Drew Redden:

Yes, sir.

There is that requirement.

The law simply fixes the dead end or far end time within which it must be done, which is at least 60 days prior to the election.

I believe that’s the law of the general elections and it’s 55 days prior primary elections.

The same sort of thing, but that it must be done by that far end.

That’s when the certification must be made.

That is the last date.

In other words, what you would say happen in some of these cases where nomination was by mass meeting occurring May 7, 1968, that nothing was said about it until September 5 when a certification of nomination was sent either to the Probate Office or to the Secretary of State’s Office, depending on whether it was a state or local office.

Now, also, the law allows that candidates may be nominated by conventions where the delegates to the convention also were chose in these caucus held on May 7.

In other words, the origin of nomination has to be on May 7 or the party may hold a primary.

Now, of the requirements of the law, the most stringent in Alabama, far and away, are the primary.

A party who — a political party nominating by caucus of mass meeting has no fixed format to follow, the law simply says to be held on that day, that is the primary election day, and to be at or in an immediate vicinity of a voting place: in a hall room or open space, I believe it says, and that’s it.

It does say that the report of the nominations must be signed by the chairman, I believe, presiding at the meeting and the secretary of the meeting, which was not done in the great many of these cases, but no one undertook to disqualify anybody for failure to do that, so that, the primary election law is the most stringent.

The party holding the primary has the most requirements to meet.

Now, it has long been the law in Alabama that a person seeking to run in the primary election must file his declaration of intent by March 1 of that election year.

Everything else has been geared to March 1.

A political party eligible to hold a primary, but desiring not to hold one, and to nominate back in convention or caucus or mass meeting must make known by approximately March 1, and this has long been the law that it decides not to hold a primary election and it can go to other route to request nomination.

The sole effect of the Garret Act was to say to the person who seeks nomination by the party holding the caucus or mass meeting or who seeks to get on the ballot as an independent that, by March 1, the same date on which the great majority of other candidates who are running in the primaries, the same date on which they must make their declaration you must file a declaration of intent to become a candidate.

Some of these people did.

Some of these remaining persons did, some did not.

Again, the District Court did not direct itself to a finding among the 123 people we started off with as to which ones did or did not.

It simply said this is a valid law.

It’s due to be complied with.

And, it held that it was not subject to the Voting Rights Act of 1965.

L. Drew Redden:

Then, its application is a matter for determination by the proper authority whether —

William J. Brennan, Jr.:

May I ask one other thing?

L. Drew Redden:

Yes, sir.

William J. Brennan, Jr.:

I gather the victor in the primary does not have to make a second designation.

L. Drew Redden:

No, sir.

That’s correct, sir.

William J. Brennan, Jr.:

But, the question here in focus, the Alabama Courts have not yet decided whether to lose in the primary.

L. Drew Redden:

No.

Well, to lose in the primary if he seeks nomination by another vehicle and comes down to the —

William J. Brennan, Jr.:

The primary?

L. Drew Redden:

That’s right.

William J. Brennan, Jr.:

Nevertheless, he is to be on the ballot as a candidate of another party.

L. Drew Redden:

Right.

William J. Brennan, Jr.:

Whether he has to make a second designation is something that hasn’t yet been decided by the —

L. Drew Redden:

Or, conceivably, as an independent candidate.

William J. Brennan, Jr.:

I beg your pardon?

L. Drew Redden:

Or, conceivably, even as an independent candidate had be moved —

William J. Brennan, Jr.:

But that issue has not yet been decided —

L. Drew Redden:

No, —

William J. Brennan, Jr.:

And concluded by this Court.

L. Drew Redden:

— it has not.

Mr. Redden, what’s your answer to the government’s voting rights argument?

L. Drew Redden:

We take the position that, in the first place, if the District Court examined this, it’s finding is correct.

I think that —

As opposed to the law.

L. Drew Redden:

Yes, sir.

Of course, this Court has, I assume, under consideration at this time the three Mississippi cases, and I’m not aware of any decision that has come out on that yet.

I think that out of the three, for example, If I can extent just a moment comparing them with our case, and I may get the name mixed up with the facts but, in one of these cases, as I recall, the Mississippi law was changed to make an elective office an appointive office, Office of the Superintendent of Education in 11 counties in Mississippi.

This, I can equate on the facts with this case.

And, another election was changed from a district election of Board of County Commissioners or some similar office to an at large election.

L. Drew Redden:

But, in one case, and this is the Whitley against Williams, you had a statute which apparently did four things.

One of which — only one of which is what the Garret Act does.

The statute fairly established to the rule that no person who had voted in the primary election could run as an independent candidate in the general election.

Well, this, of course, is not part of Alabama law.

They require independent candidates to qualify to run in the general election as the same time as candidates must qualify to run in the primary election.

Now, this is what the Garret Act almost does, but not quite.

The Garret Act requires that he declare his intent to be a candidate.

Now, whatever acts of qualification or selection by petition may be involved, it does not require him to do that at that time.

There, it most applied by tallying the number of signatures of qualified electors and then it had some verification requirements.

I think that the Voting Rights Act of 1965 is Fifteenth Amendment-oriented throughout.

I think that just about every section of the Act, with a possible exception of Section 1973 (c), makes specific reference to the Fifteenth Amendment and the protection of Fifteenth Amendment rights.

And, of course, that section is applied only in locals where it has been found that those rights have been violated and that there has been a finding through the process they had established that there’s going to be — that there will be examiners and that the other things will take place provided for there.

Now, I say in that context that you can’t find or justify finding that the Garret Act which does only one thing, and that is it gives everybody who desires to be a candidate for an office the same starting time to do only one thing that is not to become the nominee, but it is to declare his intent to become a candidate and to freeze in place, in effect, then that for at least that election period.

But, it creates or systematizes law that has existed for a long time, and it’s not a Black versus White proposition.

95% of the people who run for public office have had to comply with that since about — that time schedule since about 1945.

I forget when the March 1 requirement was put in.

Maybe it’s a little earlier than that.

And, this merely systematizes a system its — which itself is very liberal, which resulted in seven parties being on the ballot in Alabama this last election, plus, a column for independence, plus a column varieties to such an extent that the complaint is made here that the ballot is too confusing because it is easy to get on.

And, we maintain that the District Court was right in its decision that the Voting Rights Act does not govern.

Of course, we recognize that if this Court held to the contrary, it would not be a ruling that the Act was invalid.

It would have the effect of suspending its application for a period of time until its validity could be determined.

We understand that, but we do press a point that the District Court was right.

I don’t know of any other decisions than these four plus the trust or a trussal — the Trussell case on this point and I — and in related cases, and I think that all of them with that one exception are to the effect that it did not apply.

I’d like to make only a few other points with reference to the other statutes.

I assume that counsel for the appellants will argue the provisions of Title 17 Section 125 of the Code of Alabama which he says that constitutional rights are being deprived of appellants because they are not allowed to select officials for the polling places.

Well, there are six polling officials at each polling place.

This law that’s under attack provides that where two or more lists of suggested polling officials are submitted by political parties, that the list submitted by the parties having the highest receive — the two parties receiving the highest number of votes in the last election will be used to appoint the voting officials and they’ll come from those two parties.

Maybe this is moot as to last election, but I would agree that if something like this, if an attack on a statute like this could have the effect of avoiding an election, then somebody should say whether it’s constitutional or not, whether it’s valid or invalid.

Counsel says we wouldn’t want to be back the next time with reference to it, well, I simply point out that not everybody.

We had seven parties.

L. Drew Redden:

We have six polling officials at a voting place.

Well, from the beginning, somebody had to be eliminated.

Somebody couldn’t have one.

But, secondly, everyone can have a representative.

The statutes which we cite in the appendix to our brief point out that every candidate, an independent, every party is entitled to a watcher who has right to the access, the polls, to stand there to observe the operation, and not only that, to be present when the votes are counted, the right to observe the count of the votes, the right to see the ballot, the right to observe the tabulation.

And, we say that this is probably the weakest argument, actually, that they make.

Byron R. White:

Could I go back a moment to —

L. Drew Redden:

Yes, sir.

Byron R. White:

Your Corrupt Practices Act, you indicated that whether or not filing for the primary would carryover and satisfy the requirement for a losing candidate who had on another party ticket had not been decided under Alabama law.

Was that issue raised in the District Court at all?

Was the claim made that those previous filings did satisfy the — all of the requirements?

L. Drew Redden:

I don’t think so.

Byron R. White:

Well, if it hadn’t been, I suppose the three-judge Court would’ve decided that.

L. Drew Redden:

I don’t — I have absolutely no recollection of it as an issue.

Byron R. White:

Because it isn’t in the opinion of the lower Courts, I gather.

L. Drew Redden:

First one issue that came up with reference to some can —

Byron R. White:

It’s just an issue of state law that the three-judge Court, like they usually do, can decide.

L. Drew Redden:

Right.

Byron R. White:

Absence some —

L. Drew Redden:

Though they undertook to decide no issues of state law, actually, in this case.

Byron R. White:

Well, was it an issue?

L. Drew Redden:

I don’t recall it being raised by the pleadings at all.

Byron R. White:

As just whether or not under Alabama law that the one filing does the job.

L. Drew Redden:

There was raised a parallel issue that was not decided, which probably now is moot as to some candidates, and that is a fact that a person would declare as a candidate for one numbered position and ultimately be nominated or become a candidate for another numbered position from the same title of office, for example, elector or member of County Commissioners.

Byron R. White:

Another point, Judge Johnson agreed, as I remember, that the law — the practices of the law were valid on its face.

L. Drew Redden:

Yes, sir.

Byron R. White:

And the Justice said that it’d been in its application in these circumstances that it had been discriminatorily applied and he based that, I take it, on the fact that this was the first time in history that the law had been invoked by the Secretary of State.

He said it is the first time that the law has ever been invoked by the —

L. Drew Redden:

Who responded.

Byron R. White:

Secretary of State who responded.

Byron R. White:

Is that true or is that contrary to the testimony of the Secretary of State?

L. Drew Redden:

I think that you would have to say that the only answer probably that the testimony gives to that is a general answer.

I don’t think that the testimony of the Secretary of State said “here are cases in which I have refused of my own motion to accept.”

I think she said that “they always are examined.

We always require compliance with this Act.

We don’t accept or certify people who have not complied with the Act.”

I don’t think that any examples were given or any names were called or instances cited where that fact had been the situation.

Thurgood Marshall:

Well, didn’t she also say that she had, one time, accepted these, the very ones involved?

L. Drew Redden:

I think that she also said that she had, at one time, indicated that they would be accepted.

Thurgood Marshall:

Well, how does that fit in with the fact that she never does it?

L. Drew Redden:

That she never did do it?

Thurgood Marshall:

Yes.

L. Drew Redden:

Well, the only thing that I —

Thurgood Marshall:

Well, what about the government’s argument that this was all an afterthought?

L. Drew Redden:

This ground of disqualification as an afterthought?

Well, let me just remind you the timeframe of it.

The disqualification could only come after the certification was made, and most of these nominations were said to have occurred on May 7, 1968, some on July 20 where nomination was by a convention, and none of the certifications were made until September 10, 1968.

Byron R. White:

But most of the filings would’ve had to have been with the probate judge anyway, wouldn’t they?

L. Drew Redden:

Pardon me, I had my date wrong, September 5, 1968, and this was true whether the filing was with the Secretary of State or with the probate judge.

Now, 90% or more of the filings were with probate judges, who were saying nothing as far as that was concerned.

Of course, we made the point in brief and they talk about an estoppel that the probate judges had not done anything except receive by mail certificates.

Now, by September 10, she had acted and she had declined to accept.

William J. Brennan, Jr.:

That’s only as to statewide offices.

L. Drew Redden:

As to statewide offices.

William J. Brennan, Jr.:

Now, do we have any evidence at all as to what happened as to local offices which, I gather, any action such as she took —

L. Drew Redden:

oh, yes.

William J. Brennan, Jr.:

Not accepting after September 10 would’ve had to been taken by the probate judges at the local offices, is that right?

L. Drew Redden:

That’s correct, but what — in the development of this case and in order to expedite his presentation, let me relate to you how it happened.

What you are confronted with first is a list of perspective candidates which, I believe, is an approximate 24 at that time in Alabama of 67 counties for local offices.

Then the Court, by order and — required that the parties communicate and that any grounds of disqualification of any of those locals be communicated in writing, transmitted back and forth between the parties.

L. Drew Redden:

As result of that, all of the candidates of the seven counties were eliminated.

I think we came down to 17 counties in which there were counties for local office.

Not all — when I say all of the counties, of course they were statewide counties who remained throughout, but these disqualifications were based on every statement of actual disqualification.

Now, the charge was made as a blanket charge at that time by the state because it was made before time was even available to check every one them that there was a failure to comply the Corrupt Practices Act, that there was a failure to comply with the Garret Act, and this issue was raised in the answer.

Now, as to other candidates, as to which there was some disqualification that the parties agreed on, then these were eliminated.

We came down to 67 candidates in 17 counties, I believe.

Maybe I’m wrong a little bit.

Now, as to that number, as to that 67, the great majority did not file the declaration of intent required by the Garret Act or the statement filed of the requirement.

Byron R. White:

With the probate judge?

L. Drew Redden:

With the proper person.

Some of the disputed candidacies were still statewide.

Byron R. White:

Were they?

L. Drew Redden:

Just a few, yes, sir.

But, basically, it would have been with the probate judge.

Byron R. White:

Well, what about historically in terms of probate judges invoking this law in their own rather than leaving it to opposing candidates to invoke?

L. Drew Redden:

The record does not really develop anything on that, except —

Byron R. White:

Either if he suddenly decided.

L. Drew Redden:

Except the testimony of Judge Meeks that this — that it’s always complied with, that this is something that’s done as a matter of routine by a candidate that he had over $2,000 in his office this year.

Byron R. White:

Does he — did he say he insists on it being complied with?

L. Drew Redden:

Whether he uses those words or not, I think that this would be the fair intendment of his testimony.

I frankly did not read it recently.

I don’t think he uses those words precisely.

Abe Fortas:

Mr. Redden, were you counsel for the state officials when we issued our order restoring or whatever it was the order of the District Court?

L. Drew Redden:

Yes, I made the argument here on behalf of —

Abe Fortas:

When you first appeared.

L. Drew Redden:

When I first appeared.

Abe Fortas:

I know you don’t want to make the argument on the contempt matter, but if you have time now or after the luncheon recess, I should certainly appreciate your telling us what you did to see that our order was communicated —

L. Drew Redden:

Alright, sir.

Abe Fortas:

— to the various — to the appropriate officials.

L. Drew Redden:

I’d have to confess that I don’t know how long I have spoken.

L. Drew Redden:

Can you tell me, Mr. Hubbard?

Perry Hubbard:

45 minutes.

L. Drew Redden:

Alright.

I would say in response to that, at this time, that I actually did not initiate any action.

I said, now, when I first appeared in the case I was counsel for Mabel Amos, Secretary of State.

Now, I don’t think that I appeared for defendants generally until we operated on a limited time schedule in the District Court.

I think we had a 30-minute time for presentation and — on that occasion for the first time I made the argument or presentation on behalf of all defendants in that case, and I did the same thing in this Court where, on the summary count, I think we had 30 minutes to decide that last occasion.

Abe Fortas:

Well, you’re specially retained for this case.

You’re not —

L. Drew Redden:

That’s correct.

My office is in Birmingham, Alabama.

I’m not —

Abe Fortas:

You’re not a state official.

L. Drew Redden:

No.

And, with reference to what occurred after that, on Sunday, I believe that hearing was on Friday.

This Court reached its decision either Friday or Saturday.

I’m not certain which.

That — out of which the order came.

On Sunday, I had my first knowledge that an order had been writ — rendered by a report in an Knoxville newspaper on their, unfortunate Alabama-Tennessee football game and I saw the order at that time.

I would have to say —

Byron R. White:

You saw the order.

You saw the —

L. Drew Redden:

I saw the newspaper at board, I’m sorry.

On the Sunday issue of the Knoxville and I was not quite clear really as to what had occurred at that time.

I didn’t see anything in any Birmingham paper, I believe, until Tuesday of that week.

And then, at some time after Tuesday, would be my recollection, I did receive — Tuesday was a week before election day.

Well, we were here on the 18th, I believe, of October.

Potter Stewart:

So, I guess Tuesday was two weeks from —

L. Drew Redden:

Yes, sir.

So that —

On Saturday.

L. Drew Redden:

And, this art is dated the 19th of October.

I didn’t know whether it was the 19th or the 18th.

And, I would gather, probably Wednesday of that week, I got a copy of this which I assumed that was received also in the Attorney General’s Office in Montgomery.

I didn’t do anything.

Mr. Bolt called me on Friday or Saturday of that week and asked me if I knew of the order and I told him that I had received this and whatever are the knowledge I had of it.

And, he asked me whether the people who would be involved knew of it, and I told him that I had not done anything.

He told me that — well, he asked me if I would object to a letter being written from his office to the probate judge’s or, I guess, to all, maybe to Ms. Amos too.

I told him I didn’t have any objection, but I didn’t know what the position the Attorney General of Alabama would take about a matter like that because of the fact that I was not an Attorney General and that I didn’t know what knowledge the various people had of it.

My recollection is that this would’ve been on a Friday afternoon or Saturday morning, one of the two, because I know I had the feeling that the Attorney General’s Office probably was not open or available to me at the time being at all.

Then, on Monday, I call for Mr. Bookawt in Montgomery to ascertain whether it was felt that everybody knew of it and what action had been taken, and I didn’t know —

Abe Fortas:

Who was that you called?

L. Drew Redden:

The Deputy Attorney General of Montgomery.

I didn’t know, of course, whether orders — the captures of the order have been disseminated to various people.

I knew that there had been or — I’m not sure I was unaware that they had been in the District Court.

I am now aware that the District Court orders were disseminated, and I was unable to get him —

Abe Fortas:

Now, this is — we’re up to about eight days before the election.

L. Drew Redden:

That would be right.

Then, I was unable to get him on that day.

I did talk to another attorney in the office who was not involved in this case and had no knowledge of it, except that he said that he would have Mr. Bookawt to get in touch with me.

And, my recollection is that he and I talked either once or twice.

I know we talked once and, also, that he either told me or his office reported to mine that he had checked with the Secretary of State’s Office.

That the only certification that we had ever made or the only communication —

William J. Brennan, Jr.:

We’ll recess at this time.

L. Drew Redden:

May it please the Court.

I was making a response to a question Mr. Justice Fortas asked and had almost pleaded.

I’ll continue with that, if I may.

Earl Warren:

Yes.

L. Drew Redden:

I talked to Mr. Bookawt, the Deputy Attorney General who, I believe, on two occasions and he did some checking apparently with the — come to know with the Office of the Secretary of State, and the message came back that — either to this effect that all knew or all had been advised but I’ve come to learn that the basis of this probably was that the Secretary of State advised that the only message that she had sent to the various probate judges, which would be all 67 probate judges not just a few involved with local offices, was the message that pursuant to the decree of the District Court the following persons would be certified, and that she had not ever rescinded that messages though there was a period of time within which it — a brief period of time, within which it could’ve been rescinded and I believe she testified, as a matter of fact, that she was working on a rescission message at the time she learned of the order here, which I believe she says she recalls learning in all probability from the Attorney General’s Office.

So that, what had been sent to them, the only message that had been sent to them from the Office of the Secretary of State was a message that, pursuant to the order of the District Court, that the following names would be certified.

L. Drew Redden:

Of course, they had received a similar or — well, I say, they were — had received a copy of the order of the District Court which named all of the person.

I assume that the message from the Secretary of State did not name any about the statewide candidates.

The only other pieced of information I have with reference to notification of us, and I didn’t know this at the time, but Mr. Bookawt testified when his deposition was taken that he learned of the fact that the order had been entered by this Court on Saturday afternoon, October 19, which would have been the date that it was entered.

He was called at his home by the clerk or a deputy clerk in Montgomery and was given that message directly and was asked to write it down which, I believe, he testified he did.

This order was entered approximately either 16 or 15 days prior to the date of the election, depending on how you would count it.

Under the arrangement, there is a division of time with Judge Herndon’s counsel.

I would like to make just a couple of other points, if I may.

One is this, the Solicitor General said that he consider that, on the merits, there has been a serious abridgment of the right to participate in a political process and he relates three areas in which he says this abridgment result.

One is the right of association, the other, right of candidates to run for office and, the third, the right for citizens to vote for the candidates of their choice.

Maybe I had reiterated too often, but our position, again, from the position of the State of Alabama, we are not concerned with individual positions or individual candidates.

We are concerned with a validity of the statutes under attack and also, of course, with maintaining that, as to the facts of this case, that they were not unconstitutionally applied.

Now, those two determinations were made by the District Court, and we say that they are due on this record and on the facts to be upheld.

We maintain that this case can’t be viewed solely on the basis of whatever history of discrimination there might have been in Alabama or in any other state in the past.

We acknowledge that, through decisions of this Court, decisions in other places, the state has stood convicted of particular Acts that the Court has found to be discriminatory on other occasions.

We don’t maintain to this Court that that’s not true, but we do maintain that to give those an overwhelming importance here when we have to view legislation in the context of when it came into being, what its purposes are and, finally, how little burden it imposes.

And, I think that’s one thing that, of course, appellants deemphasize and they tend to argue that this creates a tremendous burden on one seeking to run for public office.

We think that the statutes, the ballot itself, in Alabama, demonstrate how easy it is to be a candidate.

The District Court, again, and this point has been brought up earlier today, made the findings I have resided in favor of appellees and then it said that it would not determine the issues of state law that were involved, having made those findings.

Of course, as this Court has pointed out today during this argument, it had the authority to.

It was not a matter of its saying that we have no authority to decide this.

It determined that it would not.

Now, we say to this Court that that order or judgment is due to be upheld.

The judgment appealed from is due to be affirmed.

At the same time, it would not be improper in our judgment that that Court, that is the District Court, make those determinations of state law or that it be directed through a remand from this Court to make those determinations.

But, as a preliminary event, there has to be a determination on the validity of the statutes and on their application in the facts and circumstances of this case.

State of Alabama is not here arguing to set aside the election of any particular individual who was elected or to say that if there was someone kept off the ballot in Greene County who was due to be put on, that there shouldn’t be a new election.

This is not our position.

Our positions is, the statutes are valid, that the record doesn’t support any conclusion but that they were validly enforced and applied in this case.

And then, there is a matter of detail as to the question of whether a particular person satisfied the statute, whether a particular person’s election is due to be upheld.

To this point then, we finally agree with the Solicitor General that it has become moot as to everybody but these people.

L. Drew Redden:

But, the important question still has to be resolved and would have to be resolved as long as one of them remained, and that’s the validity of the statute.

That’s what we’re interested in, and we think that the mechanics of the thing might well be after that.

That this Court would direct if the District Court ascertained what should be the result in the application of these valid statutes to the particular persons whose fate yet remains unsettled.

I reserve the remaining time.

Mr. Hubbard, thank you.

Perry Hubbard:

May it please the Court.

I am here in behalf of the defendant in a petition for rule to show cause, James Dennis Herndon.

I will direct my remarks only to the issues as involved him.

The question presently presented to this Court is on motion of the appellants for a rule to show cause why Judge Herndon should not be a judge in contempt of this Court.

As has been previously pointed out, this inquiry is, in part, a factual inquiry and is, in some respect, a question of law or procedure.

I consider it, at this time, premature in the absence of a full investigation of the facts to undertake to argue to this Court the facts of the alleged contempt.

I would like to point out only this.

That, in the democratic primary in May of 1968, Judge Herndon, by virtue of the duties of his office, was required to have the ballot printed for this election.

In that election, the NDPA candidates ran and also the candidates who were ultimately the nominees of the regular democratic parties.

These were the only two candidates running in these — in the democratic primary.

And, at this time, there was no pending suit, no judicial compulsion, no coercion, no commotion.

Nevertheless, without any question, without any problem, these names were all placed on the ballot by Judge Herndon.

The race was run without event.

The county officials asked and obtained election observers and, to assure the proper conduct of the election, this was done and the election was held with — uneventfully.

Subsequently, in September, a certificate of mass meeting as to the nomination by mass meeting, these NDPA candidates, was filed with Judge Herndon.

No additional qualification or designation out of the Corrupt Practices Act was filed.

However, a suit was filed in the United States District Court for the Middle District.

That Court entered an order, a copy of which was served upon Judge Herndon, directing that he include the NDPA candidates on the ballot.

During the pendency of this order, a temporary restraining order by the US District Court for the Middle District, it became necessary by virtue of time limits to print the absentee ballot which is required to be available substantially in advance of the time that the regular ballot is available.

And, with the — for the absentee ballot for this election, where he had in his hand and was aware of the order of the District Court, was printed so as to include the NDPA candidates.

It was only after he was served with — by the clerk of the US District Court with a copy of its order dissolving the temporary restraining order, that the ballot for the general election was printed.

Now, Mr. Morgan has suggested that this printing was unusual.

Abe Fortas:

What date was that?

Perry Hubbard:

That was on October 14.

Abe Fortas:

That the ballot for the general election was printed.

Perry Hubbard:

It was actually ordered by him on the 14th.

It was apparently delivered on about the 17th.

And, Mr. Morgan has suggested that this was an unusually early printing of the ballot.

Actually, I think that an investigation of the fact will demonstrate that this was one of the last ballots to be printed, that the printer had been insisting on our going ahead and finalizing the order and that it was done when this order — the dissolution of the temporary restraining order was made or received by him.

Now, it is not controverted in this case that, subsequent to that time, there was no delivery of any order.

This is not the problem, nor do we convert — controvert that if he had actual knowledge of the order that he would be equally in contempt of it as if one had been served on him.

This is not the problem at all.

Judge Herndon has by his response to the rule to show cause or the motion for rule to show cause, as asserted, that he was absolutely without knowledge of the applicability of the restoration of this temporary restraining order in its effect as to him and to local candidates.

And, this is the factual question that will be presented.

Abe Fortas:

Let’s see if I understand this.

In October 14, Judge Herndon ordered the Greene County ballot printed?

Perry Hubbard:

Yes, sir.

Abe Fortas:

That Greene County ballot was delivered to him on October 17.

Perry Hubbard:

Yes, sir.

Abe Fortas:

When did he first get notice that this Court had entered some sort of an order in the premises?

Perry Hubbard:

I believe, probably in the interim.

As I recall his deposition, he said that he thought he saw some memorandum in the paper or some article in the paper on the 15 or there abuts.

Abe Fortas:

On the 15th, he learned then that this Court had entered an order with respect to the pending controversy, is that right?

Perry Hubbard:

Yes, sir.

Abe Fortas:

And, what did he do next?

Did he take any steps to ascertain what was in that order?

Perry Hubbard:

So far as I know, he took none.

Abe Fortas:

Did he ever receive any — does the record show if he ever received a communication from a state official or from somebody —

Perry Hubbard:

No, sir.

Abe Fortas:

Some other official?

Perry Hubbard:

Not only do his records fail to reflect any communication, I don’t think anyone —

Abe Fortas:

It’s this record, is it the record before us?

Perry Hubbard:

No, sir.

In this record, there is no suggestion that he received a direct communication of any description from any state office or officer.

Abe Fortas:

And, did he testify as to what his understanding was of the nature of the order entered by this Court?

Perry Hubbard:

Yes, sir.

It was his understanding that the order had applicability to the presidential electors and statewide candidates.

Now, if Your Honor will recall, this was the primary or thrust of the case at this time, apparently, in the reporting of it, and I have since read the same articles and they are susceptible to that interpretation.

Abe Fortas:

Are those articles in the record before us?

Perry Hubbard:

I don’t know whether they had been — they were not incorporated into the copy of the deposition that I had, though they were read into Judge Herndon’s deposition.

Abe Fortas:

I don’t believe they’re in the printed record before where we have printed appendix.

I could be wrong about that.

Perry Hubbard:

No, sir, they are not.

Abe Fortas:

But, they are in the printed record — I mean, the typed record.

Perry Hubbard:

In the typed record, yes, sir.

They were read into Judge Herndon’s depositions.

Thurgood Marshall:

Mr. Hubbard.

Perry Hubbard:

Yes, sir?

Thurgood Marshall:

He received the original restraining order.

Perry Hubbard:

Yes, sir, he did.

Thurgood Marshall:

And, did the story that he read in the newspaper not say that this Court had reinstated that very order which he had a copy of?

Perry Hubbard:

I don’t have — it is sufficient familiarity to say with assurance whether it was done in precisely those terms.

Knowing now what I know about the case, it certainly says that there was a restoration of the order.

Thurgood Marshall:

Of the order?

Perry Hubbard:

Yes, sir.

Thurgood Marshall:

Which he already has.

Perry Hubbard:

Yes, sir.

Thurgood Marshall:

And there’s nothing in there to show that he tried to find out for certain, one way or the other?

Perry Hubbard:

No, sir.

Now, with regard to the — there is in the brief a suggestion with regard to constructive notice by virtue of notification of the Attorney General’s Office, and I would like, in passing, to mention that Judge Herndon was not a party, I don’t believe, in the original proceeding that was commenced in the Middle District.

That was a class action which was begun against a named probate judge and said, in all other probate judges who are similarly situated, he would not — of course, a named party, he will not serve and did not appear in that case.

And, it is our position here that the notice to someone who represents the parties to a suit is not notice to a member of a class who is not actually a party to the suit.

In other words, there is no — and I can understand why there may have been no direct communication because, indeed, Judge Herndon was not a defendant in the case but merely a member of the class who admittedly would be bound by the decree.

Now, the real —

Abe Fortas:

Isn’t it — do you agree or disagree that it was somebody’s duty to notify all of the probate judges of the order entered by this Court?

Perry Hubbard:

I am sure that there is such a duty in existence, yes, sir.

Abe Fortas:

And, somehow rather, that was not done.

Is that your position here?

Perry Hubbard:

Yes, sir.

Abe Fortas:

I — and that your position is that the only notice or knowledge of Judge Herndon had was the article which he read in the newspapers.

Perry Hubbard:

Yes, sir.

Abe Fortas:

And you know it.

Now, suppose that he had — I take it, from what you earlier said, that if this article had said plainly that the candidates for local office in Greene County were required by I — the order of this Court to be placed on the ballot, then Judge Herndon would’ve had the duty to do so.

That is to say, he would’ve had actual knowledge.

Perry Hubbard:

I certainly accept this, yes, that if he had had actual knowledge of this order —

Abe Fortas:

So that —

Perry Hubbard:

That it would have been his duty so to do, absolutely.

Abe Fortas:

So that the matter, so far as Judge Herndon is concerned, regardless of what the position, if any, may be with respect to anybody else.

He would then not notify the probate judges.

So far as Judge Herndon is concerned, your submission then is that this turns on a question of fact?

Perry Hubbard:

Yes, sir.

Abe Fortas:

And that the record before us does not show that he had notice or knowledge either formal or informal.

Perry Hubbard:

Yes, sir.

Not only does it not show that he had notice, but he unequivocally states in his deposition and, in his response to this Court, that he did not have notice.

The more interesting question from a legal point of view, I believe, involves whether or not, in the event this Court should determine that a further exploration of the question of possible contempt should be made in this case whether that exploration should be made in this Court or in the United States District Court for the Middle District of Alabama.

It is our position that the Solicitor General has adopted the correct recommendation to this Court and that a proper investigation would be in the United States District Court.

First, in this respect, the order which is —

William J. Brennan, Jr.:

May I ask, Mr. Hubbard.

Perry Hubbard:

Yes, sir?

William J. Brennan, Jr.:

An investigation that you mean limited to the violation of —

Perry Hubbard:

No, I mean, if there is to be a further hearing on ascertainment judicially of the fact.

William J. Brennan, Jr.:

But, I mean, an investigation about the District Court on behalf of this Court Or an investigation —

Perry Hubbard:

No, no.

William J. Brennan, Jr.:

— by the District Court on its own.

That’s what I was —

Perry Hubbard:

It is our position really that the order involved is the order of the District Court, and that if there is a contempt that it is essentially a contempt of the District Court.

William J. Brennan, Jr.:

Well, would we have to decide that?

Perry Hubbard:

No, sir, I don’t think so.

William J. Brennan, Jr.:

I take it, we could — do you think we might ask the District Court to determine whether there had been a contempt of its order and, if so, to take appropriate proceedings and reopen the question whether there should be a proceeding involving any possible contempt of an order of this Court?

Perry Hubbard:

Yes, sir.

I think that’s entirely possible, and I think this is entirely the correct procedure.

Byron R. White:

Do you mean we shouldn’t decide here now that if there was a contempt, it was a contempt of the District Court’s order and may be a contempt of this Court’s order?

Perry Hubbard:

No, sir, I don’t think —

Byron R. White:

What should we leave to the District Court, in the first instance, the question of whose order was violated, if any order was?

Perry Hubbard:

I’m sorry, I didn’t hear you.

Byron R. White:

Well, do you think we should leave to the District Court the question in the first instance of determining whose order was violated, if any order was violated?

Perry Hubbard:

No, sir.

I believe that it would be entirely correct for this Court to direct that the legal effect of what was accomplished was to revitalize the order of the District Court just as it would have had an appeal that had been taken in a supersedious file to preserve intact the order of the lower Court and that this, indeed, is the order that is involve and remanded to the District Court for a determination and in accordance with the indications of the circumstances.

The question of whose order it is, is frankly without precedence.

I have been unable to find any case that says — that is sufficiently comparable to be authority one way or the other in this case.

The Merrimack case, obviously, holds that one Act may be a contempt of the orders of both Courts.

This, however, is, I believe, a different type of Act from that which is involved in Ship, and Ship is substantially the only precedent for contempts in this Court.

The effect there was — of the Act complained of was to completely defeat the jurisdiction of this Court so as to render ineffective any judgment that it might render.

Here, obviously, this Court has the power to completely adjudicate this matter and give effect to its order.

So, this is not the type of Act which would frustrate the jurisdiction of this Court to adjudicate the controversy.

Now, there is a second consideration.

The United States District Court has, indeed, assumed jurisdiction on the motion of the United States and has, since the action has been pending in this Court, issued an order enjoining the effectuation of the election and has preserved the status quo as it exists.

During the pendency of this appeal, a number of depositions have already been taking there, that Court views that it still has and is exercising jurisdiction in this case.

Finally, I would cite to the Court the expressions of Mr. Justice Black in the Barnet case, in which he comments upon the respective functions of Trial and of Appellate Courts and points out, in some instances, the impracticality of undertaking a factual investigation in this Court.

Particularly, is this true in view of the obvious necessity that if a hearing is conducted here, it must be conducted by and before a commissioner, not as a proceeding for this Court.

And, if the federal rules which give credence and presumptions favorable to the findings of trial judges taken on evidence taken orally before them has a basis, then the trying of a case before the judges on oral testimony is more apt to result on a correct result than would perhaps be accomplished by a hearing before a commissioner.

There are other arguments that could be advanced.

However, by way of summary, let me say that, insofar as the factual issue is concerned, it is our sincere position that Judge Herndon’s ignorance of the order of this Court is merely an unfortunate breakdown in communications and that he failed genuinely to receive notice or knowledge of that order.

The history of the man, I believe, showed that had he had notice of it, that he indeed would have complied with it.

Thurgood Marshall:

Is that shown in the record?

Thurgood Marshall:

Is the history of that man shown in the record?

Perry Hubbard:

The history, with regard to the May 5 primary and with regard to the absentee ballot shown on the record, yes.

Thurgood Marshall:

It shows what?

Perry Hubbard:

It shows that in May — on May 5 primary in Alabama, each of the not presently NDPA candidates was placed on the ballot for the same office.

Thurgood Marshall:

Well, nobody disputed their right at that time, did they?

Perry Hubbard:

No, sir.

Thurgood Marshall:

Well, that’s a little different from October.

Perry Hubbard:

And, because in October when someone did dispute the right, when the absentee ballot was printed, during the effectiveness of the District Court order the name did appear on the absentee ballot, despite that it was a contest then.

Thurgood Marshall:

But, you say that the whole reason for his ignorance of the order was somebody else’s and I say I think you are admitting the fact that he could’ve found out himself.

After all, he was a lawyer.

Perry Hubbard:

With regard to that, if I may, Judge Herndon graduated from law school some, probably, 10 or 15 years ago.

He’s never practiced law.

He was employed by a corporation not as a lawyer.

Abe Fortas:

Mr. Hubbard.

Perry Hubbard:

Yes, sir?

Abe Fortas:

Before you sit down, may I ask you, I suppose that the test as to whether we should issue the order to show cause, which is the only thing that’s before us now in this branch of the case, is whether there has been a prima facie showing of contempt.

Is that — would you agree?

Perry Hubbard:

From a —

Abe Fortas:

Should at least on a —

Perry Hubbard:

From a factual point of —

Abe Fortas:

–higher standard of proof?

Perry Hubbard:

— view, yes, sir.

I have tried to find some case which defined that propriety of issuing a rule to show cause, but I’ve been unable to locate one.

Abe Fortas:

Yes.

Perry Hubbard:

But, from a legal point of view, I think this does not consider the fact as to the proper forum for the investigation.

Abe Fortas:

But, let’s say that we’re satisfied as to the questions of the law.

Then, on the factual side, I suppose that showing has to be made to us as a prima facie case or probable cause or something like that, isn’t it?

It’s —

Perry Hubbard:

Yes, sir.

I’ve chosen my brief —

Abe Fortas:

Less than a conviction —

Perry Hubbard:

Surely.

Abe Fortas:

— on our part.

Perry Hubbard:

Thank you.

Charles Morgan, Jr.:

May it please the Court.

To go directly to the question of Judge Herndon’s notice, I would like to cite you to the deposition which is here in this Court of Judge Herndon’s.

Judge Herndon testifies elsewhere other than page 60, of which I now am, that he —

Abe Fortas:

Are you talking about the typewritten record?

Charles Morgan, Jr.:

Yes, sir.

Abe Fortas:

That’s not in the printed appendix.

Charles Morgan, Jr.:

There is no printed record and there’s — the appendix to the government and to us contain only sundry references and we’re allow to proceed to forward without a printed record and ask the clerk if we should file a printed record —

Abe Fortas:

I see.

Charles Morgan, Jr.:

And they said “no, not at this stage at least.”

So, we refer throughout the — throughout the briefs and also here the depositions which have been filed by the Court after motion having filed below therefore.

And, in the Herndon deposition, it’s quite clear that he does subscribe in two newspapers.

He’s the only person of these candidates who admitted that he read the Tuscaloosa News is one, the Birmingham Post is another, and he could’ve read either one of them.

Mr. Dunbar with the Department of Justice, at page 61, reads to him from the article and it states explicitly this, “The US Supreme Court, Friday, will hear an appeal from the National Democratic Party of Alabama to get its 89 candidates placed on the state’s November 5 ballot.

However, the Attorney General MacDonald Gallion was told Friday.

Now then, would you read this other paragraph on the second page starting with an “agreeing to hear”?

Answer: “In agreeing to hear the case, the Supreme Court granted restoration of an original order, issued before last week’s Montgomery hearing, that prohibited the states from excluding any candidates already printed on the ballot.”

On the next page, the Tuscaloosa News article says approximately the same thing.

We can move further than that and find that the Greene County democrat, the official organ in which Judge Herndon, as probate judge, advertises for the county.

Contains an article.

Now, in that case, it’s very strange because the very man who printed the article, the publisher and editor of the paper, said he didn’t read it either.

A question came up earlier about the record, by Mr. Justice White, with respect to whether or not these matters were at issue as to the application of the Corrupt Practices Act in the lower Court.

On page 55 (a) of the amicus curiae of United States brief herein, you will find the representations made by the state and their answer below regarding the disqualification of all candidates from Greene County and referring thereto to some attached exhibits, J, K, and L.

Those exhibits are found in the record of this Court, again, not printed.

Exhibit J, page 307, an affidavit from Judge James Dennis Herndon in Greene County, he lists the names of the NDPA candidates who were left off the ballot, and at the conclusion of that affidavit, he sates “none of the six above named candidates filed or offered to file in my office the name or names of persons selected to receive, disburse, audit, and expend campaign funds, as required by Section 274 of Title 17 Code of Alabama, etcetera, within the required five-day period nor has such been filed to this date, signed September 20.”

If you then return to the brief of the United States, you will find there as appendix E, page 60 (a), a qualification blank of the type that has been filed with this Court which was filed by these candidates in the Democratic primary election.

With respect to the Corrupt Practices Act, these six candidates, before March 1, 1968, stated on page 61 (a) “I hereby certify and declare that I appoint myself and hereby accept the appointment as the sole and only person or committee to receive, expend, audit, and disperse all moneys, etcetera.”

Charles Morgan, Jr.:

Now, there are several questions about the case.

There’s one unfamiliar with Alabama politics and I’m thinking now particularly about Mr. Justice White’s comments regarding the Ohio primary election and its effective of winnowing down candidacies and its good effect in that sense and, certainly, the state has an interest in doing so.

The state here makes no point.

It was improper for any of these people to run in the democratic primary election and, at the same time, to receive the nominations at a mass meeting.

As a matter of fact, on page 22 of their brief, they concede that it’s not improper.

Surely, it’s not improper because they’ve learned from history in Alabama the election in Macon County, where Sheriff Lucius Amerson ran.

He had three White opponents it in 1966.

He got around to the — after winning the primary election there, at the end of 1966, one of his White candidates had a write-in campaign.

The other appeared on the ballot under third party for America, Inc.

The same thing happened in Selma, Alabama.

After Jim Clark lost in the primary, he ran again in the general election.

Some question has been raised here about mootness.

Yes, sir?

Byron R. White:

Mr. Morgan, I would suppose the District Court, the three-judge Court, either decided that, under Alabama law, a filing for the primary satisfies the requirement for filing for an independent party or didn’t decide it.

Now, which —

Charles Morgan, Jr.:

Did not decide it, three — and our problem there is —

Byron R. White:

Why didn’t they decide it?

Charles Morgan, Jr.:

Well, we —

Byron R. White:

I would suppose that if you had made it an issue, they would’ve been required or at least they should’ve decided this issue of Alabama law.

Charles Morgan, Jr.:

Well, they didn’t decide any, as they say in the opinion, complex factual issues involved.

Byron R. White:

That’s not a factual issue, is it?

Charles Morgan, Jr.:

Well, with respect to whether they filed or not, it would’ve been.

And, quite frankly, at that point, we relied — what we did, and this appears from —

Byron R. White:

You were on — you were after — your main thrust was the unconstitutionality on the face of the statute.

Charles Morgan, Jr.:

Of the Garret law?

Byron R. White:

Yes.

Charles Morgan, Jr.:

Certainly, or its illegality.

It’s not applicability under Section 5.

Byron R. White:

Let’s assume that the Alabama Courts construed the statute to mean that the filing for the primary does not satisfy the requirement for filing for a candidate who’s been nominated at a mass meeting of another party.

Let’s assume that had — was decided.

Byron R. White:

What would be your position then?

Charles Morgan, Jr.:

My position at that point?

My position then would be that there’s nothing in the statement file — first of all, these forms were obtained in the Office of the Judge of Probate.

They were provided to them by Judge Herndon.

He gave them the forms.

Now, they are democratic party forms, but they do not specify in the Corrupt Practices part of the form that they are merely running in the democratic primary.

Now, the form is the form — the form simply says what it says.

Byron R. White:

So, what would you say?

Charles Morgan, Jr.:

I would say that they filed.

Byron R. White:

Well, I know.

What if the Alabama Court said that they hadn’t filed?

They must make another filing when they ran on behalf of another party.

Charles Morgan, Jr.:

Well, I would say then, by September 5 when they finally filed, the statutory period began to run.

The Secretary of State had until a letter was written.

You could postmark, on the 9th or the 10th would’ve complied.

She told the statutory period to begin with.

The law does not require you to do a useless act, of course.

And, this is Court —

Byron R. White:

Well, what about the filings with the probate — what about the local candidates?

Charles Morgan, Jr.:

With the probate judges?

I think she spoke for the probate judges and I think, certainly, in the case of these six, Judge Herndon, as shown by past acts, that —

Byron R. White:

Well, how could she speak to the local judges when they’re the ones who have to make the certification?

Charles Morgan, Jr.:

Well, in the record, we find the probate judge’s do contact Mabel Amos and we do set out in brief, almost in full, a letter from a probate judge saying “I don’t think this is worth the paper it’s written on, and I’m going to contact Ms. Amos about this.”

And, I think that pretty well clears for the record that it butted down this sort of works together in matters like this.

Thurgood Marshall:

But, it’s not clear in the laws about them, is it?

Charles Morgan, Jr.:

I beg your pardon?

Thurgood Marshall:

The law of Alabama says specifically, does it not, that states goes to the Secretary and local goes to the probate judge?

Charles Morgan, Jr.:

Yes.

Thurgood Marshall:

Well, are you going to put practice over the law?

Charles Morgan, Jr.:

In Alabama?

Charles Morgan, Jr.:

I think that sometimes that happens, quite often.

Thurgood Marshall:

Well, don’t we have to follow the construction of the laws of Alabama as well as we do in any other state?

Charles Morgan, Jr.:

Yes, sir.

The State of Alabama’s constructed — well, yes, you do.

And, the State of Alabama in the case of Herndon versus Lee, and you asked a question a moment ago about what kind of man is this man as shown from the record.

I suggest that there’s an excellent series of cases arising out of Greene County to judge this man.

He’s been a party in a number of cases.

The case of Herndon versus Lee is the case with respect to the filing of these Corrupt Practices Act statements.

As we say, there, the shoe was off the other foot because there was — a Negro can’t —

Thurgood Marshall:

So far as I’m concerned, I would love to hear you discuss this case and Judge Herndon’s actions in this case.

Charles Morgan, Jr.:

Alright.

In this case, well, the case of Herndon versus Lee is the law we’re referring to there with Mr. Justice White, and the only opinion that I can talk to you about of Alabama law interpreting these — the statutes we’re involved in, and it simply says September 5, the date to file with probate judges or with the Secretary of State the sundry certificates to go to different places.

Thurgood Marshall:

You — then you can file them either place.

Charles Morgan, Jr.:

No, you have to file in your county offices.

Thurgood Marshall:

In the probate judge.

Charles Morgan, Jr.:

In the probate judge.

You have to file your district offices, the State laws — Courts have held, in all offices —

Thurgood Marshall:

Is your position limited to the fact that because the Secretary of State said there’s no use in you filing before the probate judge that excused you from not filing before the probate judge?

Charles Morgan, Jr.:

No, that’s not the sole position we take.

No, sir.

No, we have other positions.

I’ll take them right now.

That’s the —

Thurgood Marshall:

That’s one of them, isn’t it?

Charles Morgan, Jr.:

That’s a position.

The second one is that, in fact, the — when the Secretary of State acted, when she acted for everybody, the second is that, in fact, some were filed in our — across the state and that these complex factual issues were not determined by the District Court as to who had and who had not.

And, thirdly, we return back over to the same probate judges who, in some instances, would have turned us down to determine whether we’ve done it or not.

Fourth, there’s no hearing in Alabama law granted to anybody.

Fifth, that there was a discriminatory application of the statutes because this is the first reported case where someone has acted, a probate judge, on his own initiative.

All other reported cases have been otherwise.

Charles Morgan, Jr.:

There’s an unequal application statute on the part of the probate judge’s and, certainly, on the part of the Secretary of State.

Thurgood Marshall:

I was thinking about asking you the case that said just about that because the law is only applied once, that that’s discriminatory.

Charles Morgan, Jr.:

Well, Judge Johnson says there’s been a policy in the State of Alabama continuously, in his dissent, of a private enforcement of the statute, never public enforcement.

Never before has anyone moved in to enforce it.

And, in this particular case, this is the first instance.

We contend it’s the first instance because it’s the first real threat that’s come along, at least of latest, since this Act was there.

Thurgood Marshall:

So, your only precedent is the dissenting opinion in this case?

Charles Morgan, Jr.:

Well, our only precedent is the dissenting opinion in this —

Thurgood Marshall:

— Judge Johnson is a good judge.

I mean —

Charles Morgan, Jr.:

Thank you.

We do have one more though, and that is, certainly with respect to Greene County, I think your resent decision in Glover versus San Francisco Railroad Company, we say it’s not necessary to use as that by going to a Labor arbitrator or the Union officials when you know you can’t get adjudication.

I think we’ve got something in this record that might show us we’re in that same sort of position.

Now, the question of mootness was raised.

The classic makes it quite clear.

We have a right to have our votes counted, and I’m talking about across the board now, not just Greene County.

We have a right to hold primary elections that depends upon the number of votes that we got.

It’s a declaratory judgment.

We need to decide these matters now, rather than in a later time.

And, the District Court opinion, of course, does uphold and did rule on the constitutionality of Section 125 and 148 of the Alabama Code, as well as the Garret law and the Corrupt Practices Act.

The relief, a question was asked about that and I just want to urge that the relief be as specific as possible.

But you know, we’re talking about — when we talk about primary elections in Greene County, just remember we’re talking about by either one of the two figures we’ve got, 127% or 124% of the White population of the county is registered to vote.

Now, we know that’s not right but — that can’t be, but there are a lot of names there that don’t live there.

Accuse anybody with respect to that, but I just say that they’re there and that’s one of the criteria the Attorney General uses in sending examiners in and observers into a county is, have they purged the rules?

Second, primary elections are run by the local Democratic Party folks, always.

And, in those elections, there’s always an alternate ballot position and, in this case, the only relief we have so far, and I believe after the three Mississippi cases were argued here and since there’s such concern about setting aside elections, that the temporary relief of this Court could quite possibly have been utilized to force all the setting aside of any elections and, in that way, not go back and disturb anything.

But, in this case, the only relief that we have now is that the incumbents are in office and hold over under Alabama law, and the sheriff’s been holding over since 1966.

Byron R. White:

Mr. Morgan, what if the Court happened to agree with Judge Johnson but, ultimately, has commented that Judge Herndon was not in contempt?

What relief would be appropriate, a new election?

Charles Morgan, Jr.:

Yes, I think a new election — first, new election.

Charles Morgan, Jr.:

I think certain things with respect to the order by a new election should be done.

Byron R. White:

Whether or not Judge Herndon is in contempt, somehow, there was a failure to give to — bring the Court’s order home to those who should understand it?

Charles Morgan, Jr.:

If we accept the judge — the contentions, as I understand them, that he didn’t have notice or the alternative contention that if he had, he didn’t understand it in those or whatever it is.

Under those circumstances, I think they’re still entitled, of course, to a new election in Greene County.

Byron R. White:

Well, what if the Court decides, however, that only the statutes are valid?

Charles Morgan, Jr.:

If the Court decides that —

Byron R. White:

Or at least that one of them is valid?

Charles Morgan, Jr.:

If the Court decides that —

Byron R. White:

Then, what about Judge Herndon?

Charles Morgan, Jr.:

Well, I think, as far as Judge Herndon is concerned, he’s still in contempt.

Byron R. White:

It doesn’t make it irrelevant, that one of the statutes is irrelevant to —

Charles Morgan, Jr.:

I don’t think in light of Walker and I don’t think in light of the statement in Carol about moving forward through the —

Byron R. White:

Well, how about the statute — if the Court holds at least one these statutes is valid, what about relief?

There was still a violation.

There still might have been a violation of the Court’s order.

Charles Morgan, Jr.:

In the — it depends on what’s — we’re talking about the Garret law and Corrupt Practices —

Byron R. White:

Say, they held the Corrupt Practices law constitutional.

Charles Morgan, Jr.:

Held it constitutional on its —

Byron R. White:

And that these candidates did not reserve to be on the ballot.

Charles Morgan, Jr.:

Then, in that case, if they did not reserve to be on the ballot, and you can’t re-correctively put them on it, it has nothing to do with Judge Herndon’s contempt but it has something to do with whatever relief you grant, your relief that they’re entitled to.

I do want to point out, with respect to Section 125 on election officials, that this record does disclose that there were 120 election officials in Greene County, 14 of them were Negros and 81% of the population is Negro.

William J. Brennan, Jr.:

Mr. Morgan, are we to understand that since you don’t seem independently to be arguing the merits, are you buying the government’s argument, is that it?

Charles Morgan, Jr.:

No — which one?

The —

William J. Brennan, Jr.:

On the merits.

Charles Morgan, Jr.:

On the merits?

William J. Brennan, Jr.:

On the constitutionality.

Charles Morgan, Jr.:

Oh, no.

On the constitutionality of the Corrupt Practices Act —

William J. Brennan, Jr.:

You haven’t said much about it.

Charles Morgan, Jr.:

No, the constitutionality of the Corrupt Practices Act itself, I think that any act which deprives a man of the right to be on a ballot and the voters who could vote for him of the right for him to be on the ballot by an arbitrary act without a right to a hearing.

There’s no right — no due process right to a hearing here at all.

The probate judge says he’s not entitled to be on the ballot and there’s no statute that gives him a right to go in and get on the ballot.

And, at this instance, it’s September 5.

I just don’t know what the man can do and I don’t see how that can be constitutional in that sense of the Corrupt Practices Act.

I certainly think the Corrupt Practices Act generally should be and are, and this particular provision by —

William J. Brennan, Jr.:

That’s a due process argument independently of any equal protection argument?

Charles Morgan, Jr.:

I think that you — yes, a due process argument independent of any equal protection argument at all.

And, secondly, I think the statute itself, by its very wording, is really rather vague as to what it does say and it’s essentially a criminal statute.

I mean, I don’t know that you can read that statute and really know what you’re supposed to do because I know that you can’t tell what day you’re supposed to file.

If you don’t read the case, you can’t tell because it doesn’t say.

William J. Brennan, Jr.:

Why do you say it’s essentially a criminal statute?

Charles Morgan, Jr.:

I think so, yes.

It’s — the — their penal sanctions are later in the code that it’s a violation of Corrupt Practices Act, they can go at it that way, or they can keep him off the ballot, they can do both.

I really have nothing more if there are no more questions, except to say that, as the President said yesterday, “the laws have caught up with our conscience and what remains is to give life to the law,” and I think that’s what this case is really all about.