Louisiana v. United States

PETITIONER:Louisiana
RESPONDENT:United States
LOCATION:Louisiana General Assembly

DOCKET NO.: 67
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 380 US 145 (1965)
ARGUED: Jan 26, 1965 / Jan 27, 1965
DECIDED: Mar 08, 1965

Facts of the case

The Attorney General on behalf of the United States sued Louisiana in a Louisiana federal district court alleging that the state had denied and would continue to deny African-Americans the right to vote. In 1898 Louisiana adopted a constitutional amendment that imposed burdensome requirements for voter registration, but which had a clause exempting those people registered to vote as of January 1, 1867 and the son or grandson of such people. African- Americans were not entitled to vote as of January 1, 1867. The district court agreed with the United States and held that Louisiana’s requirements were unconstitutional.

Question

Are the Louisiana constitution’s voter registration requirements unconstitutional?

Earl Warren:

Number 67, Louisiana et al., Appellants, versus United States.

Have you concluded your opening argument Mr. Kron?

Harry J. Kron:

Mr. Chief Justice, I understand now, I have only seven minutes left and I would like to reserve it for my final —

Earl Warren:

You — you may.

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice, may it please the Court.

After listening to Louisiana’s Attorney General on yesterday, whose argument I must say was marked by commendable frankness.

I was prepared to submit my case with a very few words.

Unfortunately, I had a full evening to reconsider and doubtless influenced by any lawyers’ reluctance to be cheated out of this argument, I found there is yet to a good deal to be said.

Nevertheless, I hope not to trespass on the Court’s time and not to use my full allotted time.

As I understood Louisiana’s argument yesterday, it was in effect this, assuming that serious discrimination against the Negro in his exercise of the franchise had been perpetrated in the past under the rule of the old interpretation test, Louisiana says that is behind us.

Louisiana has voluntarily abandoned that old discriminatory device and has now enacted a brand new, uniform, written, objective test which is unexceptional.

As to the past, they say, let us forgive and forget now that the State has began a fresh apparently in good faith using a model suggested by the Department of Justice itself.

Therefore, there is no occasion even to outlaw the old test.

It has been abandoned and that issue is moot says South Louisiana.

As to the new test, neither the court below nor the Government has challenged its constitutionality in this proceeding.

Accordingly, says the state, it’s improper to enjoin its use and especially to enjoin its use only in 21 parishes thereby creating a disparity with the other 43 who are permitted to continue using it.

Now, there is a — the suggestion that the injunction against the new citizenship test might be appropriate as a means of placing the Negro today on apparently with the white who is illegally registered in former times by saying let those Negroes who feel that they were discriminated against come in and challenge the illegally registered white voters.

In Louisiana, we have a very convenient, easy challenge procedure and they may simply look through the rolls and purge the white voters who are illegally registered without taking a test and the effects of that past discrimination where it might be raised.

Unfortunately, it’s not as easy as all that.

Even if there were some basis who believing that Louisiana has turned over a new leaf and there are strong indications to the contrary as I will show.

The decree ended below in every respect was appropriate and necessary.

You cannot leave the interpretation test on the books, not in Louisiana.

The requirement that applicants be able to understand and interpret give a reasonable interpretation of any section of the Federal or State Constitution when read to him by the registrar is still part of the law of Louisiana.

It is still enshrined in the Constitution of Louisiana.

It is still implemented by statutes.

When the new test was enacted in 1962, the old was not repealed.

There is no conceivable room for argument that the new test, as a matter of state law, supplemented the old.

Even the Board of Registration whose discretion in this matter may be questioned has not explicitly directed registrars to stop using the old test and indeed, as was mentioned by one of the justices, “Yes it is.

The record shows that one of the registrars at least continued to use the old test after the Board’s new rules and new test have been promulgated.”

Louis F. Claiborne:

Furthermore, according to the Constitution, the old test is not optional, it’s mandatory.

The criminal penalties imposed which can be invoked against registrars who failed to apply the Louisiana laws.

The Attorney General, I assume, is in the position to assure the Court that no such prosecutions would be instituted.

But on the other hand, the test has been shelved.

For three decades, it was shelved after it was first passed.

It was revived and resurrected when the need arose.

That may well happen again.

Louisiana has not always taken the same position with respect to this test.

For a long time it was apparently viewed as purely optional up to any registrar to use it as it saw fit.

In 1956 through 1961, Louisiana officials or some of them at the highest state level took the position that the test was mandatory and that any registrar who declined to use it was subject to removal and even to criminal prosecution.

So, Louisiana has blown hot and cold on this issue of whether the test is in fact subject to being shelved.

Even now, it is possible to purge a voter who prior to 1962 was allegedly registered without taking the test on the ground that the test was then enforced and that he was therefore illegally registered.

Indeed that is the suggestion made for Negroes as to whites who were registered without taking the test.

In short, the test if it was valid has the continuing effect in that respect.

Now, under existing circumstances, as I say, there can be no assurance with the test will not be revived at some later time or some other administration in some parishes if not at all.

Negroes not without reason will continue to be deterred by the knowledge that this so-called weapon of discrimination which has been so effectively used against them in the past may be invoked against in the future.

They are entitled to have the registrars stripped of this weapon altogether.

Therefore, the general injunction issued by the court below against the interpretation test, against the use of the interpretation test throughout Louisiana, which incidentally was the only issue appealed in the notice to appeal in the jurisdictional statement filed in this Court.

It does remain the central issue in this case.

There is of course another reason why we cannot erase the interpretation test from the case and that is because the discrimination it accomplished has not been erased in fact and cannot be erased without further relief, which is justified only by considering the effect which the interpretation test had during its stay.

(Inaudible)

Louis F. Claiborne:

Mr. Justice Harlan, the injunction as to the new test, yes.

They would be because there’s been no occasion to enjoin the old test, but for the moment, I’m arguing that it is necessary to affirm the judgment declaring unconstitutional and permanently enjoining the old test.

I will primarily deal in a moment with the new test and the necessity for enjoining it in the 21 parishes where the old one was used (Voice Overlap).

William J. Brennan, Jr.:

The injunction against the use of the old test is statewide, isn’t it?

Louis F. Claiborne:

It is statewide, yes Mr. Justice Brennan.

And though it has only been used in 21 parishes, it is available in all 64.

William J. Brennan, Jr.:

Yes, but as I understand it this — this decree enjoins the use of the old test statewide.

Louis F. Claiborne:

Correct.

William J. Brennan, Jr.:

And enjoins the use of the new test only in 21 counties on — except that — that it may be used in the event of a general reregistration in those 21 counties, is that it?

Louis F. Claiborne:

That is correct sir.

That it is one refined and to which is — that it is enjoined in the 21 parishes only as to those persons who are eligible to vote in terms of age and residence at the time when the old test was in effect.

Since they — they owe in the sense those who were directly discriminated against not being able to register at the time when they should have been allowed to register.

William J. Brennan, Jr.:

Mr. Claiborne, I understood the Attorney General was saying yesterday where there’s some in those 21 counties where they’re using only the application form that, that there are some litigation pending about the use of that form — is that a — that’s another litigation, is it?

Louis F. Claiborne:

That is, it’s a suit that which is now under submission to a registry judge statutory court.

William J. Brennan, Jr.:

And brought by the United States?

Louis F. Claiborne:

Brought by the United States.

Inside of United States, this is Board of Registration and against the State of Louisiana.

It alleges, despite proof has been submitted that the application form, especially the new application form of which there are now five variance which are shuffled lie instructions from the Board of Registration, do work and were devised to work as a further substitute instrument to discrimination against Negroes, and that Negroes especially who flunk on the test for trivial and inconsequential errors.

That challenge to this registration form or application form is not limited to the 21 parishes and that challenge is statewide.

Tom C. Clark:

Well, presently then, you can’t register in 21 on amendment — on the application form.

Louis F. Claiborne:

You can reg — that’s correct, Mr. Justice Clark.

That is the minimum requirement that it’s out of the case which I don’t want to get into too far here shows that there’s not such a minimum throughout certiorari.

Tom C. Clark:

Anyone of the county and of the 21s says they have a general registration and used — the citizen — citizen form of minimum requirement.

Louis F. Claiborne:

Yes, that is correct that it’s a — in terms of the good faith of Louisiana and its determination to start a fresh and to erase the effects of the old discrimination.

It is important to know that at the time the suit was filed, 11 of the 21 parishes involved were on periodic registration which means that they would’ve automatically had in complete new registration this month, this year, would have it raise the effect of the old discrimination.

In the meantime, however, ten of those 11 parishes all but one had to switch to permanent registration and thereby had sealed in rather than erased the old discrimination, and this was purely a matter of choice on the part of the local police juries who helped parishes and with permission from the Central State Board which as I understand it could have withheld that issue.

Instead of moving forward toward trying to erase the effect of the old, I’m in contrary and I assume deliberately perpetuated that discrimination by —

Tom C. Clark:

Well, (Voice Overlap) that we would practically have.

Louis F. Claiborne:

Well, as to those who were — flunked on the interpretation testing properly, they are free to reapply and they are not submitted to the citizenship test which is a serious hurdle.

They — they do suffer the burden of having to reapply that is — but that is an unfortunate inevitable burden which we cannot relieve them off.

Tom C. Clark:

There has to be the application —

Louis F. Claiborne:

They still have to complete the application form.

Tom C. Clark:

Which you claim is similar.

Louis F. Claiborne:

Which we do.

Arthur J. Goldberg:

But — but that’s not (Voice Overlap)

Louis F. Claiborne:

— and we can only do one thing at a time or at least — so it’s not — filed a suit and as the court noticed in the Mississippi case which is filed subsequently this various devices were challenged together rather than separately and perhaps more appropriately challenged together.

Arthur J. Goldberg:

Mr. Claiborne, can you tell us how many people have registered in this parish and how many Negroes have registered since the District Court’s injunction was in effect?

Louis F. Claiborne:

According to the reports filed in the record of this case, but I assume in the hand of the District Court and not was sent here.

As of December 4 of this year, these reports begin in March.

Louis F. Claiborne:

The decree was actually issued in January but the summary is in the reporting period and begins in — until March.

There has been 1899 Negro applicants registered and 1296 rejected, which is purely on the application forms since that’s the only thing in effect.

By contrast, 6046 white applicants had been accepted in those 21 parishes whereas 243 only had been rejected.

How many Negroes, in total are there?

Louis F. Claiborne:

Its Negro population is approximately 28% of the whole.

The actual figures are shown in Appendix B of our brief which is the very last pullout.

And as of 1960, the census figure for the 21 parishes shows a 111,743 of voting age as compared to 216,000 of whites.

That’s 34%.

Hugo L. Black:

And how many are registered now is a 118,000?

Louis F. Claiborne:

I intended to submit to the Court an official report of the Board of Registration for the period.

These are monthly reports, which is a matter apparently were sent to the Department of Justice by the Louisiana Board of Registration and which I assume are available to the Attorney General dated November 30, 1964 and while I have not had an opportunity to totalize the figures for the parishes involved, I’ve marked them on this chart in red.

This is for each of the 64 parishes, not only the 21.

A rough look at it would indicate that the registration in those parishes as compared to 1962 had probably doubled, but I’m not — that doubling, however, it is not very impressive because the total figure in December 1962 was only 9000.

Hugo L. Black:

Out of 118,000?

Louis F. Claiborne:

That is 111,000 sir.

Hugo L. Black:

A 111,000.

Louis F. Claiborne:

And perhaps, well — and then where the population is increased or decreased in — in those two years.

I assume it’s roughly to say.

Hugo L. Black:

Are those registrations required?

Registrars required to be open all the year or are they like some other states have limited time, which are inadequate to bring about the proper registration.

Louis F. Claiborne:

I — I’m not absolutely sure Mr. Justice Black.

My impression is there is no such problem that the registration books are close, I believe, 30 days before any election, but that otherwise, books are open most of the year and during reasonable hours and that there is at least in most places no problem of getting in to register.

Hugo L. Black:

Your problem there as you see is not an inadequate time in which to register.

But the fact that the registration takes place, people who use their powers so unfair and unjustly that the Negroes are denied the privilege of voting.

Louis F. Claiborne:

That is exactly so Mr. Justice Black.

And I would add that, they do not do so individually on an ad hoc basis.

I think this is a fully in that language.

The state itself has participated by enacting statutes which is designed to encourage and invite the registrars toward this sort of discrimination and by state officials who have pushed individual registrants in that direction.

It is commendable in Louisiana that 43 parishes despite some pressures didn’t resist and did not so far as this record shows ever used the interpretation test.

But it’s not to say that they didn’t use other means discriminatorily, but at least they did not resort to the interpretation test.

Louis F. Claiborne:

As far the 21, we’re mostly concerned with in this case, did use the interpretation test which we say is plainly no more than a device to make racial discrimination easy to quote the Court’s words in the Leser case or cult for discrimination as the court said in granting a sentence.

Now, I don’t want to pursue the condemnation of the old interpretation test in light of the fact of the Louisiana Attorney General did not defend it before this Court.

It is however important to show the effect it had and perhaps mentioned in passing some of its most obvious flaws for that dwelling area.

The first point I would emphasize is that it is not a literacy test.

In no sense, it is a literacy test.

It was written for illiterates.

It provides that the section of the Constitution shall be read by the registrar to the perspective voter.

Not that he shall read it nor that he shall write his answer.

It was intended to be administered wholly and orally.

They ought to express literacy test in Louisiana.

One is the requirements that the voter be able to read and write any section of the preamble to the Constitution of the United States, a relatively simple test I should suppose for literacy which came in 1960.

And then there is the requirement that the application form be completed by the applicant in writing without help which is expressly stated to be a literacy test.

Hugo L. Black:

(Inaudible) under whole test, I think with reference to the registrar’s (Inaudible).

Louis F. Claiborne:

At times, they had been suggested cards furnish upon the — in one instance by the white citizens’ counsel and another by the Leander Perez, the District Attorney of Plaquemines Parish and registrars had been invited to use those cards with ready-made questions in test — in use — in applying the interpretation test.

In most parishes, however, the test was conducted without any cards and without any aids, the registrar simply took the book of the Louisiana Constitution, it’s free to use.

The Federal Constitution as well but Louisiana Constitution has then 600 pages and at its versatilities therefore considerably greater and picked out any section.

Here, the registrar chose and required the applicant to interpret it.

Sometimes you read it to the applicant and deny the applicant the advantage of at least seeing the text.

Sometimes they show him the book, sometimes they gave him a edification and sometimes they gave him, as one registrar put it, a long drawn out twister of which they are meant in Louisiana —

Hugo L. Black:

(Inaudible)

Louis F. Claiborne:

The testimony of the registrar on that subject is somewhat ambiguous.

Some of them conceded that they had consulted a local judge, consulted an attorney in the building, the Attorney General or an assistant of his as to the correct answers to these questions indicating that they are not so sure of the answers themselves.

Arthur J. Goldberg:

Are the registrants whites?

Louis F. Claiborne:

No, they’re not.

I think it’s traditional or this used to be a tradition in Louisiana that registrars are somewhat elderly ladies, widows of local public officials.

In the old days, it was a more of I suppose a — the special talents required were not extraordinary.

I think I can rely without going any further as to the preposterous character of the interpretation test in Louisiana on its own former colorful governor, Earl Long.

In 1960, when he was addressing the Louisiana legislature and looking at them, he said this, referring to the interpretation test, “You got to interpret the Constitution.

There ain’t ten people looking at me including myself who if properly approached or attacked could probably qualify to vote.”

And he knew whereof his vote.

Louis F. Claiborne:

It’s perfectly clear that the test was never meant to be taken seriously at least as far as whites were concerned.

It was to be invoked sometimes in some places as to some people.

All that was known and has been known and was foretold as early as 1898 when the Louisiana Constitutional Convention rejected this proposal, which was then invoked in Mississippi and South Carolina on the ground that it was so plainly fraudulent and lacking in forthrightness that it could not be accepted as a voting requirement in Louisiana.

I don’t want to lead you to think that the delegates of Louisiana Convention of 1898 deserve too much commendation.

They are ones who invented the ‘grandfather clause’.

Instead, it was more forthright, I suppose.

But that’s all that can be said though.

Now, in practice as they say the Louisiana test has been used as an optional device.

It — I need not dwell on its elastic qualities, and its subjective flaws.

It’s entirely up to the registrar what section to select.

He may or he may give help or withhold him.

Nothing in the statutes governs these questions.

And most important, he is the sole judge when it comes to grading and since the only standard in the law is whether the interpretation given by the applicant is reasonable, the room for discrimination is obvious.

Hugo L. Black:

Who did you say is his own judge?

Louis F. Claiborne:

The registrar.

Hugo L. Black:

How is the appointed?

Louis F. Claiborne:

He is appointed by the local police jury, and then I believe the (Voice Overlap) so.

Hugo L. Black:

Police jury?

Louis F. Claiborne:

Police jury is the governing body of — of a parish county in Louisiana.

He is however subject to removal by the Central State Board of Registration.

At will.

The statute said that will.

Hugo L. Black:

Who appoints it?

Louis F. Claiborne:

It is made up as a matter of perhaps in the Constitution, of the Governor, the Speaker of the House, and the Lieutenant Governor.

Hugo L. Black:

And who?

Louis F. Claiborne:

The Lieutenant Governor, the three highest state public officials.

Hugo L. Black:

Is there any indication in the record or has Louisiana attempted to prove by any of these officials that they have insisted that this system of registration be carried on entirely on the idea of registering colored people?

Has there been any claim on that part that they have done that of a public measure?

Louis F. Claiborne:

Mr. Justice Black, they said they don’t concede the contrary but I don’t think it is accurate to say that Louisiana — that Louisiana Board has attempted to exonerate itself from the acts perpetuated for the registrars.

And they themselves, the Board have condoned this on a gain, off a gain system of using the test.

Hugo L. Black:

How did they condone it?

Does the record show?

Louis F. Claiborne:

Well first of all, for three decades they did not even suggest to the registrars that they do use it.

Hugo L. Black:

Is the governor the head of the Board?

Louis F. Claiborne:

I suppose he’s the chairman of the Board.

I don’t think he has the (Voice Overlap).

Hugo L. Black:

What has been the position of the governor during those years with reference to allowing colored people to vote on his public statement as shown by the record?

Louis F. Claiborne:

Well, I don’t believe — I think it depends which governor.

During the fathers’ time Earl Long was governor.

He’s used for quite decision.

But those of the intervening governor, Governor Davis and the present governor, Governor McKeithen.

But I don’t think the record reflects any public statements by the governor as such.

The only documents in the record are resolutions, letters, instructions from the Board as a whole usually signed by the director of the board who is also a defendant here, Mr. Contraire and these are ambiguous and contradictory.

In some instances, registrars are told that they must use the test.

In other instances as now that in effect told that they did not use the test, and must not use the test.

The Board has circulated from its offices pamphlets prepared by the officials of the white citizens counsel explaining the importance of resorting to purges and to urge the black voter, the black voter who had been registered by the NAACP and the Communists.

The message was very clear, I think.

Hugo L. Black:

As I recall in the case we had from Alabama several years ago where the case’s judgment was affirmed, so-called Boswell Amendment.

The record was still and the evidence showing that those responsible for the highest administration of the government and has brought on enactment of the — submission of the amendments, that frankly and openly stated that the purpose was to keep colored people from voting.

Do you have anything like that in this record?

Louis F. Claiborne:

The — this record is not as full of open and frank admissions by Louisiana officials as to that purpose.

Potter Stewart:

But we have an admission right here in this Court, don’t we?

I mean why do we — why do you spend so much time on this?

Hasn’t it — this hasn’t been defended by the State of Louisiana here in this Court the — the interpretation test (Voice Overlap) conceded that it’s been unconstitutionally applied.

Louis F. Claiborne:

I did not understand it to be conceded that it needs to be enjoined.

Potter Stewart:

No, that — it has not been defended.

It’s constitutionally as applied has not been defended.

Unless I’ve misunderstood your position entirely.

Louis F. Claiborne:

I think — I think that is correct Mr. Justice Stewart.

Then I will move on to the other question, the appropriateness of the relief against the citizenship test.

Louis F. Claiborne:

But I must say before going there, that the effect of this old discrimination under the old test is the key to the injunction against the citizenship test.

That it is with that in mind primarily that I’d dwell on.

I don’t want to get into the statistics and little maps I had for the Court except to point out that those statistics in Appendix B of 21 parishes show that 80 and 90% of the white voting age residents were registered in those parishes.

Obviously, without being submitted to any serious test under the interpretation clause, whereas the Negroes in those same parishes who were subjected to the test have registration rates from below 1% to a maximum of 20%.

And this cannot be attributed to any accident or to any claim that it was a general upgrading of registration standards.

It is — the figures simply cannot bear out the claim that so many Negroes are incapable of passing the test, and yet almost all whites are capable of passing the test.

Nor is much to be attributed to the so-called Negro apathy in these parishes.

And that is illustrated by comparing the parishes that use the test and their neighboring parishes which do not.

For instance in — on this little map, De Soto Parish in the left hand side of the map had a registration rate of 9%, whereas Sabine Parish right below it, this is Negro registration rate.

9% of the eligible the voting age Negroes were registered in De Soto, whereas right next to it in Sabine more than 75% of the voting age Negroes who registered.

The same comparison can be made for Allen and Evangeline Parish with Rapides.

In Allen in Evangeline, 90% of the voting age Negroes are registered to vote or were registered in 1962.

These figures are relevant.

Whereas in Rapides, right next to it, only 17%.

Arthur J. Goldberg:

Does the explanation to the fact that the disparity in the application and the interpretation of test (Inaudible)?

Louis F. Claiborne:

I think as a historical and sociological matter, it is generate through in Louisiana with the northern part of the State, which is mostly that part colored in red on these maps, and the so-called Florida Parishes, which is slightly below are known as the areas that are abiding race prejudice whereas Southwest in Southern, Louisiana which are French in origin to those part.

I don’t claiming all the credit for the French but that they are for the most part Caucasian origin, do not discriminate in this respect.

I don’t mean to say that in all the areas, they’re not giving some discrimination.

But as to voting, judging from 90% Negro registration it is they do not and have not.

And —

Arthur J. Goldberg:

(Inaudible)

Louis F. Claiborne:

Well, it does have some relation.

The correlation is not perfect because they are a great many southern parishes where the Negro populations have in yet — the test did not use.

But the Negro population is also quite dense.

It so happens that that’s significantly so in those parishes where the test was in though?

Arthur J. Goldberg:

Did the Claiborne Parish as the government had having a relationship with the Claiborne that we have here?

Louis F. Claiborne:

I beg to say that the Claiborne Parish is one of the worst.

It is named after my great, great grandfather who was the first governor of Louisiana.

Now, the — I can’t emphasize too much the deterrent effect of this interpretation test.

In the Negro community, it became known that a school teacher had flunked the test.

Louis F. Claiborne:

A foreign Negro sharecropper was not going to then subject himself to the embarrassment and humiliation of taking the test.

That was repeated over and over again.

Therefore, one cannot rely on rejection figures, on how many applied and were rejected.

Most were simply deterred from ever applying.

And that is one of the main reasons why it is impossible and impractical to now talk about measuring those who discriminated against as opposed to those for whom the test — those whites with whom the test was dispensed with.

There are of course no records to those who were simply deterred.

In fact, there are very few records for those who were rejected.

This test was given orally, and no record was kept when a rejection was made.

For that matter, no record was actually kept when — have kept of what had been done with respect to the interpretation test when the applicant passed.

It’s therefore impossible to add names of Negroes who were discriminated against, or to subtract names of whites for whom the test was waived.

The remedy suggested here that the Negroes go in and challenged the whites who are illegally registered.

It’s preposterous.

As the practical matter, there’s no way of discovering them one-by-one.

The burden of doing so is absolutely beyond the reach of those whom it is suggested do the work.

Beyond that, if the test really is optional as Louisiana Attorney General says no one was illegally registered as a matter of state law.

There was a discrimination under the Fifteenth Amendment, but as a matter of state law, it cannot be said that anyone should be purged.

And therefore, there is clearly no adequate remedy at law even if in different circumstances there were an inclination to relegate these people to a state remedy which of course is not required.

(Voice Overlap) as far as state law?

Louis F. Claiborne:

I don’t know that Louisiana would uphold the challenge based on a Fifteenth Amendment discrimination as opposed to a violation of the state law.

That case would have to be taken to this Court before the challenge was sustained.

(Inaudible)

Louis F. Claiborne:

With one ex — perhaps more than one exception but there is one exception for Orleans Parish, this New Orleans who had — I believe supported by the governor.

(Inaudible)

Louis F. Claiborne:

No sir.

He is a different official.

And I say he, it’s usually she, that’s the tradition in Louisiana.

William J. Brennan, Jr.:

But you have known that any registrar is removable at will?

Louis F. Claiborne:

It is removable at will in sense by the State Board of Registration, and cannot then be reappointed by the police jury.

That question was ruled on.

William J. Brennan, Jr.:

Also it is true with the registrars in Orleans Parish?

Louis F. Claiborne:

I’m — I’m really not sure as to the Orleans Parish registrar.

Now, and finally getting to this citizenship test, it may well be that this test is easier than the old test strictly enforced.

That does not matter to our argument.

We do not challenge the new test here in this proceeding.

It is uniform.

It is objective.

It is written.

The questions are limited, and I think I should say Mr. Justice Black that you perhaps under misapprehension yesterday as to the registrars in inventing new questions to post to the applicant.

Under the law, you cannot do that.

You must stick to the cards, and there are ten cards that they are set out before the applicant’s and he must pick one.

The questions are printed there, and there’s an answer for, and it’s all done relatively mechanically.

I’m not saying that there’s not room for discrimination even there, but it is not in this form of adding new difficult questions.

Hugo L. Black:

Is that required by law —

Louis F. Claiborne:

Yes —

Hugo L. Black:

(Inaudible)

Louis F. Claiborne:

No, the — the Constitution and below expressly required that the test be uniform, which I assume means the same procedures and even the same questions must be applied throughout the stage.

That it’d be wholly in writing, and that it’d be objective.

And I assume as a practical matter that means question and answer, which is the way it’s — I mean multiple choice answer A, B, C.

Hugo L. Black:

(Inaudible)

Louis F. Claiborne:

In each parish, there’s one with — one or more deputies.

In Orleans Parish many deputies, in others only one deputy.

Hugo L. Black:

(Inaudible) — that you have in the case, that you’ve mentioned, be determined whether or not a person should be allowed to vote.

Is that right?

Louis F. Claiborne:

That was true under the old test.

It is not true on the new test.

Hugo L. Black:

Now, how did they — what is the difference there with reference to that (Voice Overlap)?

Louis F. Claiborne:

The new test being printed on the card or on ten cards, the applicant having the choice of selecting the card without seeing the face of it.

The registrar has no discretion as to which card to give or which question to give, the first difference.

Secondly, the answer is marked A, B, and C.

It’s multiple choice, so the registrar has no discretion as to the sufficiency of the answer.

Louis F. Claiborne:

If the right answer was B and the applicant put A, he fail.

But if he put A, he pass.

There’s no discretion in the registrar in that respect.

Assuming he grades the card correctly, mechanically correctly.

Hugo L. Black:

But what if the — what if him having you left for him to — the key is just to claim and the voter could be registered.

Louis F. Claiborne:

Well, there is always the possibility of helping the white registrant with the answers.

Hugo L. Black:

Is that the only way?

Louis F. Claiborne:

Well the — I don’t want to go too far a field and suggest the practices which may be invoked in which — I don’t know enough about and that there hasn’t been enough experience under this too.

William J. Brennan, Jr.:

What — what about grade Mr. Claiborne?

Does the applicants even graded?

Louis F. Claiborne:

No, no, he does not.

However, the answer card is filed and is required as a matter of state law to be made a part of the registrar’s records so that it is — it can be reviewed, that is the third difference.

It is wholly written and the record is kept.

That was not true of an oral interpretation.

William J. Brennan, Jr.:

(Voice Overlap)

Louis F. Claiborne:

Anyone — anyone is entitled to go here and see the records.

Including the applicant himself.

William J. Brennan, Jr.:

How (Voice Overlap) when the registrar says you flunked.

The fellow says “I didn’t.

I answered the questions correctly.”

Now, how can he have the registrar decision “you’ve flunked” reviewed?

Louis F. Claiborne:

Well I — I think he has to go to court about it but I think he can go in, not then he’s not told how he flunked and why he flunked.

A matter of fact, as I understand it, he’s given the citizenship test and then he is given the application form, or one before the other.

But in any event he’s required to complete both.

If he makes the mistake on either, he simply told he’s failed, he’s not told whether he has made an error in the application form, whether he made an error in the test.

And he goes away below than pass, but he presumably can come back later on, look at his card once it’s in the file and if it appears that all right answer are on it, go to the court about it.

Is it your position that as to the difference to the injunction is operating against the new system, rest not on the unconstitutionality or invalidity of the new system as applied or as written but as it’s — it’s being unnecessary adjunct to praise the effect to the old system, isn’t that it?

Louis F. Claiborne:

Exactly, Justice Harlan.

What we’re talking about now, maybe for another day.

Louis F. Claiborne:

I don’t want to —

Hugo L. Black:

(Inaudible) — so far, as the State said that they haven’t — that it has cured all these things and can’t have them again, and that is one of the arguments, is it not, on which they have to say to you that they want this injunction manifested?

Louis F. Claiborne:

That is true, Mr. Justice Black.

And to that extent, it is relevant — I should say whether discrimination is somehow still being perpetuated — new discrimination is being perpetrated under the new regime.

And that is basically the burden of the other suit although with reference to the application form rather than the citizenship test.

But, I don’t want to imply that the government views the citizenship test as a — without fault.

It is simply not an issue in this proceeding and was not invalidated in the lower court and we are not here challenging it.

There were no claims that that was made in the application of the new system?

Louis F. Claiborne:

No, that is true sir, but there had been very little time.

In any event the new system was inaugurated in August of 1952.

State the option that you have been arguing here, arguing or of reregistering and across the board having the reregistration across the board to the effect.

Louis F. Claiborne:

Yes, in fact I would say that lower court invited the several parishes involved to wipe away on their own the effect of past discrimination by reregistering or by allowing the normal periodic reregistration to take place as I’ve say it would have this month in most of those parishes.

The Court did not order them to reregister, I assume because it had some reservations about its power to do that.

But, it said until you do on your own race the effects of this old discrimination, you cannot establish a new hurdle which however nondiscriminatory it may be and however admissible it may be up on its face, here, acts as an agent to perpetuate the old discrimination in the sense that it seals it in because the distinction is not between the old test and the new test.

The distinction is between the white registrant who took no test as the Negro, for the most part goes we’re now applying on Negroes, who is not subjective to a however modest test, a hurdle.

And clearly some test is more of a burden than no test.

Arthur J. Goldberg:

In fact, the — the District Court (Voice Overlap) that would have been written in to the regulations of ‘grandfather’s clause.’

Louis F. Claiborne:

That is exactly so Mr. Justice Goldberg.

Now, let me say on — on the point that there’s some discrimination that results because this test has only enjoined in 21 parishes whereas in the 43 remaining parishes, it is permitted to go on.

First answer is of course that a court in this case was only concerned with one type of discrimination — discrimination that had been perpetuated under the interpretation test and it could reach no further.

In other proceedings, it maybe appropriate to remove the hurdle if it is found that its effect is to perpetuate past discrimination accomplished by different means.

Byron R. White:

That’s quite what I asked that you made the same objection that any new test being applied to the group of people would then discriminated against under the the old interpretation test.

Louis F. Claiborne:

Any substantial new test that —

Byron R. White:

Well, you must then — you must then — you — you have to get the character of the new test then, won’t you?

But, you say that is an issue here.

We know that.

Did he say anything at all about this new test because if this is an issue here, we have to put that aside.

Let’s comp — litigate that.

I supposed you would take the same position, say they’ve imposed a very simple literacy test.

In the statute, said people have to read the following three lines than anyone would take that anyone who could read, could read those three lines.

Now, you would — would you take the same position?

Louis F. Claiborne:

Well Mr. Justice White not as to a literacy test because —

Byron R. White:

Why not, that’s a new test?

Louis F. Claiborne:

No, it isn’t.

Louisiana has two literacy tests.

Byron R. White:

Alright.

Well then — we’ll try to do another simple, something that’s just new and simple and clear.

Louis F. Claiborne:

Well, I think it is relevant how simple it is.

The extent to which it is a real hurdled registration.

Now, I assume that any test device is — is devised without any discriminatory intent, racial discriminatory intent because some people won’t pass it.

There’s not much point in a test where everyone is going to pass.

Byron R. White:

That the literacy test they have imposed would be new because of the different — there are new three sentences.

Nobody ever had to read those three sentences before.

I know I suppose you’d object though.

Louis F. Claiborne:

No, because they — they had had to be able to read the preamble to the Constitution of the United States and I don’t see it in unless that your three sentences were taken out of the Louisiana Constitution or some very difficult tests.

Byron R. White:

So, we really do have to look — you didn’t have to look at the citizenship test, don’t we?

Louis F. Claiborne:

Only to the extent of finding it to be a substantial hurdle to registration, but as Your Honor says, we would take the same position with respect to any other substantial new requirement that are not been formally imposed on white applicants.

Byron R. White:

Well, have you said enough to — have you think it’s — do you think you said enough to — to indicate a suspension?

Louis F. Claiborne:

No.

I should say that the brief for Louisiana does not give a fair representation of the citizenship test by suggesting that a typical question is who was the first president of the United States.

I — the questions are in the record from pages 235 to 244, but —

William J. Brennan, Jr.:

That’s all ten cards.

Louis F. Claiborne:

That’s all ten cards with 43 questions juggled a bit.

At the end of that citation, the answer card shows all 43 questions in a more convenient form, really.

William J. Brennan, Jr.:

What page you say that was?

Louis F. Claiborne:

244.

And I believe the answer card which lists all the questions seriatim, is on 246.

Now, I just take one or two of them to show that they’re not quite that easy.

For instance, I’m very confident that every Louisianan does not know that the President of the United States must be 35 years or older than 30, or more relevantly perhaps that the laws of the District of Columbia are passed by the Congress and not by the people who live there as one might suppose, that it is the Chief Justice rather than the Speaker or the Vice-president who presides with the impeachment trial of the President.

And then there’s some questions that in the Louisiana context might give pause such as the Constitution of the United States places the final authority in our nation in the hands of, a) the National Courts, b) the states or c) the people.

To all the talk in Louisiana that state’s right on the one hand, and about how this Court remakes the Constitution on the other hand, the people get varying.

Byron R. White:

Did you — did you want to reserve the litigation (Inaudible) on one occasion.

Louis F. Claiborne:

That is true sir.

Byron R. White:

And, it might — it might be dangerous to suppress this that we have to test the — litigate this injunction.

On the (Voice Overlap) that this (Voice Overlap) must be constituted.

Louis F. Claiborne:

That is correct sir.

Byron R. White:

And that if — if it constitutes to develop the injunction — the injunction performed would mean that there maybe a lot of people in the record to assume it has (Inaudible)?

Louis F. Claiborne:

That is true.

That’s true.

Now, I should —

Byron R. White:

That’s the only way that — that Louisiana could then of course but we assume to be a thousand voter’s application would be to require literacy test.

Louis F. Claiborne:

Let — let me correct myself to this extent Mr. Justice White.

The injunction is not perpetual and it odes not apply to new voters who just come of age.

Therefore, as to the younger generation, the test can be applied even in its 21 parishes.

It’s only those who should have been registered long ago, who are now being committed to register under the old standards.

Byron R. White:

But it’s still correct?

Louis F. Claiborne:

Well, yes.

I just want to make that —

Byron R. White:

We’ll both be registered.

You could be registered under a valid qualification statute, and that’s the only way that Louisiana that ever could ever effectuate this new — assuming the — this new valid policy or which we assumed valid is to have a reregistration.

Louis F. Claiborne:

That is true but that is not a — an impossible solution.

Byron R. White:

That’s all how far it goes.

Louis F. Claiborne:

On the contrary, it’s an easy remedy for the State.

It’s one that you would have occurred in the normal course of time and one which Louisiana has deliberately withdrawn at the moment when it was about to solve the problem of past discrimination.

Byron R. White:

But the harm — the harm really is that — that harm in it’s — if you allow Louisiana to apply this new test which we assume is valid to people who weren’t registered, including those who weren’t registered under the old law, you are going to eliminate a fair number of those who can’t pass the test, aren’t you?

Louis F. Claiborne:

That —

Byron R. White:

Now, what’s wrong with that?

Louis F. Claiborne:

With — they’re all — a substantial number of Negroes who should — who of age to have been registered at a time when whites were registered without passing any test.

The Negroes should be placed on a parity with them and given the same opportunity to register without taking this new hurdle.

Byron R. White:

But you really think – all you’re really saying is — is that there are a lot of whites registered that shouldn’t be under the new test.

That’s really —

Louis F. Claiborne:

That’s true.

Byron R. White:

Isn’t that — isn’t that really the same because in that thing you would assume — the test would assume to be valid.

There’s nothing wrong with it.

Louis F. Claiborne:

Right.

Byron R. White:

But if — if they started all a new registration campaign, the same Negroes would be excluded from voting, who would be excluded if they just apply this new test to those who are not written.

Louis F. Claiborne:

And to that extent again, it is relevant that this test is not merely pro forma that it is in fact difficult enough, that it is reasonable to assume that a great number, no majority but a great number of those whites who are now registered could not have passed it, if they’ve been subjected to it.

Byron R. White:

What —

Louis F. Claiborne:

The only fair way to find out is to give it to them.

Byron R. White:

You’re really saying to Louisiana if you want to — if you want to exclude or — if it is — unless you want to submit the white voters to this new test, the price you must pay is not be submitted to Negroes who were discriminated against.

Louis F. Claiborne:

Right.

But I emphasized when we are talking about parishes where not and typically 90% of the white population is registered and 1% of the Negro population of voting age is registered.

That’s the context in which we’re speaking of the whites who took no test to the Negroes who are now subjected to a substantial burden in registration.

Arthur J. Goldberg:

Mr. Claiborne, perhaps another way to say it is that what the court is saying to Louisiana is eliminate your past unconstitutional discrimination in voting.

Louis F. Claiborne:

Exactly, Sir.

Arthur J. Goldberg:

Maybe a simple way of saying it.

Louis F. Claiborne:

That is all that is required here and —

Hugo L. Black:

(Inaudible) have written any white people alone who would have been admitted under a test where the qualifications are much less than those they would impose upon them by the new test.

Louis F. Claiborne:

That is correct sir.

Hugo L. Black:

And therefore that would deny an equal protection of the law on the count of color.

Louis F. Claiborne:

Very correctly sir.

And this discrimination is quite different from the supposed disparity between the 21 and the 43 parishes.

That’s a disparity between the young and the old basically.

And it is not impossible to justify setting a new standard not on racial grounds, which has no racial effect to fold a new generation who, after all, may well have additional educational advantages and be more able to meet a new higher test.

We do not say that the State can, in no time, raise its registration standards.

We say that, it cannot do so when the effect of that is to seal in this old discrimination and give a lifetime voting license under Louisiana’s permanent registration system to whites who couldn’t pass the new standards.

We submit that the judgment in all respects should be affirmed.

Harry J. Kron:

May it please the Court —

Earl Warren:

Mr. Kron.

Harry J. Kron:

It’s obvious that in only seven minutes, I’m not going to be able to completely cover the able and thorough presentation made by Solicitor General’s office.

I do want to cover just a few high points.One, with respect to Justice Stewart’s statement of our conceding something, I will explain that but wait for him to return to the bench.

Harry J. Kron:

And secondly, a very important thing, a very important consideration that was brought into these discussions by Justice White, it is apparent from the government’s argument that they have set as Justice Black just mentioned a moment ago the idea and the image that with this 90% of registered white people and only a very small percentage of Negroes, that that is a permanent thing because of the system of permanent registration.

That is not so.

It is apparent and I think that we can take notice of the fact that there is a tremendous removal and transfer and moving around of our population during these days.

And, although we, as defendants, appellants here had not at the time because it didn’t — didn’t at that stage of the thing seemed particularly appropriate.

There is enough documentary evidence in this record to show the total population and registration, not the population, the registration figures in the Parish of Orleans for instance over a period of some eight or ten years.

Now, if you — if this Court will start in that, you will notice that although those percentages that the government presents to you and then leaves the image that this is a permanent and unchangeable thing, that in those eight or ten years, the registration totals in City of New Orleans, which is also synonymous with the Parish of Orleans, is down 10,000 registered voters approximately and that during that same period, there has been an increase in the registration of the Negro registered voters.

They’re — under the provisions of Louisiana law, there are automatic, systematic statutory requirements that at the end of each four-year period there’d be under this permanent registration removals made from the rules as a result of death removals, moving out of the parishes, notices from other registrars, that a person has moved to that parish and he’s eliminated from the rule.

And, necessarily it is true as a matter of mathematics in that instance, that when a person does remove from Orleans Parish to one of the others and registrars had notices sent, this white person has taken off and the result from the 90% that are registered, you’re going to have more white people being taken off from day to day, it’s — it’s inevitable, than there would be Negroes who moved around.

Those percentages are going to happen.

The result is, and I repeat, that a study of the statistics filed in this record from using Orleans as one of the examples because it has the biggest population parish of the State will show that over this period, there are 10,000 less registered voters in Orleans Parish today than there was a year or ten years ago.

It is less white persons registered and more Negroes were despite this reduction.

That is a fact shown in this record.

(Inaudible)

Harry J. Kron:

I just don’t know the answer to that.

I don’t think I’m qualified.

Now, then, with the question of Justice White’s approach to this regardless of what new test, Louisiana would perpetuate or put forth, yes, I think the government would object to that and they are so doing without going beyond this record in the attack on our Louisiana registration.

Byron R. White:

(Inaudible) why shouldn’t the court of equity when it finds there has been a discrimination against the class of people and let’s just assume in this case that the — that the application of the old interpretation test was discriminatory and that a great many Negroes were prevented from registering by this test.

Now, why shouldn’t the court of equity fashion a remedy which will eliminate that discrimination not only for the future but to excise its consequences that have accumulated in the past?

Harry J. Kron:

Justice White, I’m going to say —

Byron R. White:

That’s a normal function of the Court.

Harry J. Kron:

I’m going to say that we have never opposed the right of this Court under the — under the equity provision, under the chancery jurisdiction to — and the Alabama case is the authority for that to — to provide some remedy either the elimination or the correction of past inequities and the past discriminatory practices.

But by the same token, even though those things have taken place and we agree, I am arguing here that this Court or any court of equity, in that respect, can in so doing, not strike down a state law that is entirely valid and it is agreed by everyone here to be valid, to — to prescribe minimum qualifications and standards and I would like to — to illustrate that point.

The State, without question, has a right to test through the appointment of board examinations or dental examinations to test the qualifications of the professions and the trades and what not.

And, they have from time to time change those provision, and that has not been held anywhere or even attacked to have been a discriminatory thing against those who are already practicing, who are already — who are licensed in that field.

There’s no question in my mind that the State from time to time so long as that is absent a discriminatory intent in an application, the right to change the rules of the game.

Byron R. White:

That isn’t a very great good parallel because the rules — you may the right to change the rules but, in this case, in effect what you’ve got is that one class of people were given one test for registration and another class of people were given another.

In the past, it’s not just a new test you bring up to the future.

But in the past one group is registered because it didn’t have to take the test and another group is registered because they were.

Now, what’s the remedy to those who have been excluded — for those who have been excluded from registration in the past because they had to take a test but they shouldn’t have to take?

Why shouldn’t they be registered along with the others who didn’t have to take the test?

Byron R. White:

That’s a simple question

Harry J. Kron:

In the 43 parishes where the citizenship test is now being given, Justice White.

It has been conceded by the government that prior that that never– never has the verbal interpretation of that test been given.

Now then, there are many people presently on the rule.

Byron R. White:

Now, that’s the — that’s the — that is the parallel to your doctor’s case or the — those 43 parishes?

Harry J. Kron:

Not necessarily because I — from my own experience, I know that during the war years, for instance, and many of the states in this country who just suspended the necessity for taking bar examinations to any — any lawyer applicant to the bar who — who is in the military service during that time.

So, they had to take none at all.

So, I — I think that the illustration I’m making is not.

However, going to the — to the question —

Byron R. White:

Well then, how we’ve handled that case within the period?

Harry J. Kron:

However, in these instances we have — we have many, many people now who have a new standard and additional requirement in those 43 parishes who have that — had no such requirement for it.

My time is running out and I would like to say to Justice Stewart that we — and I’m sorry if I misled you.

We have not conceded the unconstitutionality of the statute.

I simply said yesterday that we assumed for the sake of argument.

I think our briefing in this case will show that we’re coming here with honesty of purpose and clean hands.

And we — it’s not saying that this statute is unconstitutional per se —

Byron R. White:

Well, I don’t know —

Harry J. Kron:

We are saying that there is evidence in this record to show that there were instances of discriminatory practices.

And to that extent, this Court then would have the right to correct and to — and to prohibit any further continuation of those.

And we are strongly urging this Court to consider that under the long line of cases and the women suffrage is the greatest example.

I know of the fact that after the Happersett case that it was necessary for the Congress of this United States to pass a constitutional amendment to permit women, who we all agree and must’ve did and wouldn’t do otherwise always have had, intellectual and educational qualification is necessary to cast an intelligent and a valid vote but who are prohibited to do so by the very limitations that we’re talking about before this Court.

We think the State has the right to make certain limitations so long as they are not in conflict with the Fourteenth and Fifteenth Amendments of our law.

I think — there are many other things but I think that we’re getting into areas that all of us understand and I think that briefing of these questions, it was important to me however, to hear that the Solicitor General said after a position completely contrary to that throughout the course of this — this lawsuit that this new citizenship test was easier.

And therefore, all of the briefing and all of the argument made prior thereto that it was more onerous and a more stringent test, I think has been now admitted not to be so, and in that sense and I’m talking about the — the evaluation of it.

But it is important to the — to the overall analysis of the problem that this is not an additional, more onerous, more stringent requirement.

It is actually a relaxation of the rules in getting down to what the — the trend of thinking today is that there should be a simple logical approach to testing qualifications.

That’s what Louisiana has attempted to do and we submit that we have the right to do that even in these 21 parishes.

(Inaudible)

Harry J. Kron:

I submit to you, sir, that that is a question beyond our consideration here that that is a political question entirely within the realm and — and sovereign right of the State so to decide and I also go further with deference to our experience that sometimes those things are a —

(Inaudible)

Harry J. Kron:

Well, with the point I’m trying to make Justice Harlan, is that we all know from our experiences of living that political reforms oftentimes are not done over night.

But the — the trend is on here.

There is no doubt that it will happen.

I am sure in my personal — this is personal view of my own that I’m sure that it’s just a question of time for these things will and are correcting themselves.

I think in the Sims case, Chief Justice Warren, made reference to the fact that there had been a tremendous change in the approach and the thinking with respect to the right of suffrage over the years.

And it has become almost now a — and I believe you dissented in that case.

You’d — it could — not to that principle however, but it has come now almost to the advocacy of universal suffrage without the minimum qualifications that we are contending.

We still have the right to prescribe so long as they are reasonable and not discriminatory applied.

That is the basis for our case and we certainly want to thank you for your attention and — and kindness here.