United States v. Thomas

PETITIONER:United States
RESPONDENT:Thomas
LOCATION:Approximately half-way between Santa Marta, Colombia and Miami. Florida (by water)

DOCKET NO.: 667
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 362 US 58 (1960)
ARGUED: Feb 23, 1960 / Feb 24, 1960
DECIDED: Feb 29, 1960

Facts of the case

Question

  • Oral Argument – February 24, 1960
  • Audio Transcription for Oral Argument – February 24, 1960 in United States v. Thomas

    Audio Transcription for Oral Argument – February 23, 1960 in United States v. Thomas

    J. Lee Rankin:

    May it please the Court.

    This is an action involving the right of 1377 Negroes to be restored to the registration rolls of Washington Parish in Louisiana.

    It is distinguishable from Raines in that Raines involved the question of their being placed upon the registration rolls in the State of Georgia.

    In this case, the District Judge, in his decree, held that the action involved massive discrimination against these Negro voters.

    The various acts that were involved resulted from challenges under the statute of Louisiana.

    The statute of Louisiana provides for challenges in a certain manner and that is set out in a Government’s brief.

    The challenges maybe made by persons, voters who will swear out affidavits in regard to the discrepancy in a form that is described in the statute and it’s exhibit here in our brief, in which this discrepancies are raised.

    Then the Registrar acts upon those affidavits which are to be sworn out before the Registrar or his deputy.

    Charles E. Whittaker:

    There’s two affidavit as I understand (Inaudible) —

    J. Lee Rankin:

    At least two voters.

    Charles E. Whittaker:

    — or not have been done by voters.

    J. Lee Rankin:

    That’s right Mr. Justice Whittaker.

    In this case, if the record is clear, it’s submitted that no examination of any ward in regard to whether voters were in compliance with the requirements of the registration laws was made where there were no Negro voters in that ward.

    There were only 10 white voters’ registrations, who were challenged in any way in Washington Parish in connection with this matter.

    The record is clear that the Registrar who deals with these records day by day and continuously over a long period of years that he described, knew that over 50% of the registrations’ records of the white voters in this parish had exactly the same kind of discrepancies that were found to be sufficient under these challenges to remove these colored voters from the registration rolls of this parish.

    There were 1514, colored voters registered in that parish before this action occurred.

    By this action, 1377 of those 1514 were removed from the rolls.

    There are over 11,000 white, 11,444 to be exact, on the registration rolls in this parish and only 10 of them were challenged.

    Excuse me?

    Under this state procedure does the mere submission of the affidavit result in removal or is some determination statement?

    J. Lee Rankin:

    The Registrar has to act but as a part of proceedings, it is shown at the Registrar here, Mr. Thomas, brought an action for declaratory judgment in which he said these people were harassing, interfering with the conduct of his office and that he wanted an adjudication as to whether or not he had to make these removals from the registration rolls and whether or not it would be a violation of the injunction outstanding against him from 1950 in which he was directed by a Federal District Court not to discriminate against any voters in the registration by reason of their race or color.

    And in this proceeding, the state District Judge held that he — his function was ministerial and that he had no discretion and that he was, as soon as the challenge was filed that he was to proceed to remove them from the rolls that was his duty.

    Charles E. Whittaker:

    Does that mean he must remove them from the rolls or does he have a discretion, after a challenge has been initiated by these two affidavits, send out a notice, then when the voter responds to make the determination for himself as to qualifications?

    J. Lee Rankin:

    Well yes, but if there was no response I think is a fair interpretation of the state judge’s decision, then he had no discretion that it was his – then his duty.

    Now, there is an affidavit provided for in the state law, state statutes, in which they can respond by getting three voters to swear on affidavit on their behalf.

    This affidavit is a — a limited form and it’s provided that they are residents of the district in effect.

    The Court held this affidavit in the form required by the Louisiana laws will be no answer to these particular discrepancies because the — the Court said that they would have to swear out an affidavit in which they would say that these particular discrepancies did not appear or did not occur on the record.

    Charles E. Whittaker:

    Now do I understand, I mean to get this point clear in my mind, that it has been held by some court down there, that in the (Inaudible) of response by the voter, you have thus been challenged, you used the affidavits in the statutory laws, the Registrar has no discretion to overrule the challenge, but must remove the voter from the rolls.

    J. Lee Rankin:

    That’s my understanding of the judgment of the state court, Mr. Justice Whittaker.

    Charles E. Whittaker:

    And one more question —

    J. Lee Rankin:

    And — and the issue is, I might add there issue was further raised by the Registrar whether this type of discrepancy was sufficient for them to be removed from the rolls.

    Now the discrepancies involved here were misspelling, the miscalculation of the age and illegibility and in a few cases, there is one about whether or not he was registered in any ward.

    Now, it’s the problem about age is where many of them missed the age by one day.

    The state Attorney General has said that is not a disqualification, but the state court judge said it was and the missed one day, depends upon whether you’re going to calculate it by figuring in the day of the filing or you figure it out.

    Now, that’s one and then the question of misspelling.

    It’s a — a very interesting exhibit attached in the Appendix to the Government’s brief.

    To show you just how this worked in the operation and what in a front it is to the people of Louisiana, including these voters and the American people to be saying that these Negro voters were disqualified in the voting process by reason of what happened here.

    Felix Frankfurter:

    May I just — as a matter of curiosity Mr. Solicitor, did you say that there were 15,000 whites on the voting list?

    J. Lee Rankin:

    11,444.

    Felix Frankfurter:

    11,000, just as a matter of curiosity, do you happen to know how many voted at the last election?

    J. Lee Rankin:

    No, I don’t, Mr. Justice Frankfurter, I’m sorry.

    Felix Frankfurter:

    It has nothing to do with the case, I was just curious.

    Charles E. Whittaker:

    Could I ask you one question and I won’t interrupt you.

    You mentioned the 1950 injunction that had been issued against this Registrar.

    What Court was that issued —

    J. Lee Rankin:

    That was the Federal District Court.

    Charles E. Whittaker:

    Was there a — is that a cited case, was there an opinion written?

    J. Lee Rankin:

    There was a — it’s set out in the record here on pages 99 and 100.

    The effective orders are on page 100 at the top of the page, the two paragraphs.

    One is summarized, restrained from denying and refusing to register eligible Negro — Negroes as electors in this very issue.

    Solely, on account of raising color and the second one is an injunction against making any distinction based upon raising color and the registration of collectors in Washington Parish.

    That was outstanding from the date by the same district judge at that time.

    Charles E. Whittaker:

    Mr. Solicitor, may I ask you one more question?

    J. Lee Rankin:

    Yes, Mr. Justice.

    Charles E. Whittaker:

    And I promise that would be all.

    J. Lee Rankin:

    No.

    Charles E. Whittaker:

    (Inaudible) — is there any record — as I understand the Registrar is the only respondent (Inaudible), is that right?

    J. Lee Rankin:

    Yes, because the time for appeal is not yet up for the other parties and they would have I think until March if in case they want to notice an appeal and at the time the Government’s filing they had not noticed.

    So, the only person who had noticed an appeal was the Registrar.

    Charles E. Whittaker:

    Can the Registrar be chargeable with the dissemination in – in any way in the filing of affidavit against the Negroes but not against the whites?

    Charles E. Whittaker:

    He had anything to do that?

    J. Lee Rankin:

    Well, he has the duty to administer these registration rolls and if he, as he testified he knew that over 50% of the white had exactly the same condition.

    He had a duty with regard to those whites as well as the colored, if he was going to administer these as being grounds for removing them from the rolls.

    Charles E. Whittaker:

    That’s why I was interested to know whether he had a discretion to deny the challenge?

    He has apparently no power to initiate a challenge against anyone.

    J. Lee Rankin:

    There’s no decision of that kind and I don’t think that it would be a fair conclusion from the decision of the state court.

    Apparently, he has the power to initiate on his own the — if a certain person does not come in within the statutory requirement, that’s his function.

    So that he — he has the power, I don’t think it would be disputed here to have removed this 50% of the whites if he’d proceeded to do it.

    Charles E. Whittaker:

    Then — then two affidavits (Inaudible) one challenge and not required?

    J. Lee Rankin:

    Well, that is for —

    Charles E. Whittaker:

    (Voice Overlap)

    J. Lee Rankin:

    — that can start the procedure whereby he then the Court said, has a ministerial duty to proceed to do it.

    Charles E. Whittaker:

    But somebody — is there some other way to initiate that thing?

    J. Lee Rankin:

    Well, I think he has the power and duty as the Court said to carry out the statutes and he knew that this record showed that the same disabilities occurred on 50% of the whites.

    Charles E. Whittaker:

    When is he making (Inaudible) about it, he might have (Inaudible) over here, the same discrepancies on Negroes and whites and affidavits were presented to him challenging the Negroes.

    J. Lee Rankin:

    Yes.

    Charles E. Whittaker:

    But no affidavits presented to him challenging the whites.

    Now what can he do?

    J. Lee Rankin:

    He’s not helpless because he has to take into account the Constitution of the United States and the Federal Law which is primary and supreme and controlling his action as long he’s — as you knows that the particular acts that he is act — asked to do are in violation or discriminatory of his own knowledge then it’s his duty under the law that’s supreme not to carry it out.

    Charles E. Whittaker:

    Alright.

    Then that should give him the right to overrule the challenge and refuse to remove the challenge of Negro voters, isn’t it?

    J. Lee Rankin:

    Well, he would have the duty not to exercise that challenge.

    It’s the contention of the Government whenever it’s discriminatory because that is prohibited by federal law and that’s supreme, but I was trying to tell you what the state court had held was his duty in regard to these particular challenges ones they came to him.

    Charles E. Whittaker:

    Thank you very much.

    J. Lee Rankin:

    Now, if you —

    Felix Frankfurter:

    The second part of your answer to Justice Whittaker’s question implied another way of answering would have been (Inaudible) decide to be more explicit, if you can disregards what you have said with the state court’s ruling as to his ministerial duty, is that incorrect?

    J. Lee Rankin:

    Yes Mr. Justice Frankfurter.

    I think you’re — you’re within —

    Felix Frankfurter:

    No, I just — I just want to know if that’s what that mean?

    J. Lee Rankin:

    You’re right.

    Felix Frankfurter:

    That’s was earlier — you told earlier to Justice Whittaker state law so far as declared by decision of a ruling court for him, if there were no federal questions, the state also says, he has a — he has a ministerial duty, meaning that if a formality is satisfied, he must act.

    What you’re saying now, what — what your answer to Justice Whittaker amount to is in the context that was you’re talking about, you may disregard what is a directing decision of a state court, is that right?

    J. Lee Rankin:

    That’s right, Mr. Justice Frankfurter.

    Felix Frankfurter:

    Alright.

    J. Lee Rankin:

    We think it’s right within In re Neagle, that’s — where the two come into clash that the can follow his federal duty and proceeding in accordance for that law.

    Now, if you will turn to exhibits on the Appendix 42 (a) and notice the photo stub there, you’ll see that Mrs. Affoway Smith in the first one on the left hand side —

    Earl Warren:

    Yes.

    J. Lee Rankin:

    — of the Governments brief — the Government — I’m sorry, the Governments brief, page 42 (a), there’s a photo stub that you unfold.

    You’ll notice Affoway Smith and the — the registration application in Louisiana records the fact of what’s their race or color is, they’re supposed to put that down.

    One of the things that they challenged them for and they’ve been removed from the rolls in — in some of these matters for is the fact that they put down C or colored, instead of black or they put down Negro instead of black and that is the ground that they have exercised the challenge and said that doesn’t comply with their statutory requirement.

    That isn’t true of this one, but I just want to point that out as in you are examining it.

    Now, this woman missed the date of the note — the time that she had lived by one day depending upon why do you include the date of the application?

    Now she is a teacher as you’ll note from the — the blank there in the application blank.

    Now, if you move down to the blank just below that, you’ll find the one of Mrs. William A. Luis.

    She is also a teacher and she happens to be a white teacher, but she can’t spell what the State of Louisiana.

    She’s spelled it L.O.U.I.S.I.A.N.I.A., but nobody challenges her.

    Nobody removes her from the rolls and when she fills in the blank, the name of the householder at the present address is, that should be her own name if that’s who the householder is but she fills in 4632 Avenue G, which is a improper answer to the question the way they’ve been running and so she should have been challenged by anybody who was trying to be non-discriminatory and moved off the rolls, but there’s the white sign there and of course you don’t that.

    Now, you go to the next page of the photostatic copy.

    Was there proof in the record that Mrs. Luis is a registration had been under scrutiny?

    J. Lee Rankin:

    No.

    There was proof that the Registrar worked for these records all the time and knew, but there was no proof that these particular members of the citizens’ counsel, white citizen’s counsel that filed his challenges had examined that —

    Well, all I was wondering was the discrepancies which you point out here whether they were — whether the record shows that they — were might have been occasioned by overlooking each particular registrations or whether — how these registrations were looked over and — but not challenged.

    J. Lee Rankin:

    Yes.

    Well, let me see if this will answer your questions Mr. Justice Harlan in this regard.

    I — squarely, I don’t think there — there wasn’t any proof that this particular application was looked at except that it came during the trial, but the Registrar testified, admitted that 50% of these applications in his office, he knew to have the same discrepancies as those of the colored that he removed.

    Charles E. Whittaker:

    That’s not accused of?

    J. Lee Rankin:

    That is — that’s admitted.

    So, there’s no question but he was aware now but he was aware now, whether he was aware of just Affoway Smith, I — I wouldn’t say for a moment but he was aware that — that it was all through his record as to the whites and that would be some six better than 5,000 — 5,500 that were — that way with the white.

    Now —

    Charles E. Whittaker:

    Are you also aware, being aware, what can he do, the Registrar?

    J. Lee Rankin:

    Oh, he has the power to correct that situation.

    He has difficult problems politically if he does, but he has the power to comply with these statutes, if these — if that’s what the statutes mean.

    I think that question is not now before the court in a way this record is.

    I don’t think that this is a proper construction of these statutes to say that to miss the day of the time you are — have lived by one day just because you don’t whether the statutes means that you shall include the day of the application or not include it is a reasonable interpretation of this statute at all.

    And I don’t think if you misspelled Louisiana because you add an extra “I”, well that should be have any relation to your fitness to be a voter in the state of Louisiana or on the other state.

    Felix Frankfurter:

    Mr. Solicitor —

    Charles E. Whittaker:

    (Voice Overlap) what clause did it use to (Inaudible) it disqualified as one (Inaudible) disqualified vote.

    J. Lee Rankin:

    That’s what I’m saying and if the Registrar has the duty to abide these statutes, it’s his function not only to act under challenges, but to act directly if these are real basic discrepancies that should control his right to be on the vote rolls.

    Felix Frankfurter:

    It is also conceded or conceded by you the color question apart, suppose there were no color question, that the Registrar could not sua sponte on his own motion throw out Mrs. Louis’s registration.

    J. Lee Rankin:

    Oh, I claim he could.

    Felix Frankfurter:

    Apart from any question of differentiation to the whites and colored people.

    J. Lee Rankin:

    Oh, I — I say these aren’t enough if that’s —

    Felix Frankfurter:

    Pardon me?

    J. Lee Rankin:

    — I say this type of discrepancy should not have any bearing under the law.

    I don’t think its constitutional to they have that kind of a measure of whether persons are qualified both.

    Felix Frankfurter:

    Well, my —

    J. Lee Rankin:

    I think it has no reasonable relationship with it.

    Felix Frankfurter:

    I’m not sure I made my question clear.

    J. Lee Rankin:

    I’m sorry.

    Felix Frankfurter:

    Suppose, there were no questions, no color discrimination there and suppose that Mrs. Luis had made — had made an entry that in your point of view was egregious that it didn’t come within the statute, color question, color discrimination apart in your view would the Registrar, could the Registrar on his own motive find her — her registration disqualifying registration?

    J. Lee Rankin:

    In my view, Mr. Justice Frankfurter, he has that power and the duty and I think that was –

    Felix Frankfurter:

    Wholly apart from, I’m not talking on discrimination –

    J. Lee Rankin:

    Yes.

    Felix Frankfurter:

    – under the Fourteenth or Fifteenth Amendment.

    J. Lee Rankin:

    Yes.

    Felix Frankfurter:

    All right.

    J. Lee Rankin:

    Now on this next page of the photo stats, Mr. James D. Cyrus misspelled Pearl River which was the county, that’s on page 42 (b) of the Government’s brief and you’ll note here is a Negro and he was challenged and removed from the list.

    Then if you go there —

    Earl Warren:

    What — what was his defect?

    J. Lee Rankin:

    Pearl River.

    J. Lee Rankin:

    He spelled, P.E.R.A.L transposed the R and the L and then if you go to the next one, Herman Manning you’ll notice he — the way he put his name in the first part there, he didn’t spell it right at all.

    He mixed up the Herman and the Manning so it’s hardly possible to decide what he meant and then the when he put down his sex, he put down “F” for female, I guess for a man.

    Now —

    Felix Frankfurter:

    How would the Registrar know whether he was a man or not or a female, even though they might be, unless it might — unless it is clear, but there are number of — of names of Marian or Adrian or Vivian that do not disclose whether male or female.

    J. Lee Rankin:

    I haven’t heard of Herman not disclosed in the record.[Laughter]

    Felix Frankfurter:

    Her name.

    I — I’ll use that —

    (Inaudible)

    J. Lee Rankin:

    That’s right there’s a circle around Mr. too, Mr. Justice Frankfurter.

    I didn’t see — catch that.

    Felix Frankfurter:

    I didn’t mean as to this particular one.

    J. Lee Rankin:

    Yes.

    Felix Frankfurter:

    General rules or — how do you just — how do you (Inaudible) Herman out of the word H.E.R.M.AN.N.I.N.G.

    J. Lee Rankin:

    I’m trying to make it out in this signature Mr. Justice Frank — Whittaker at the bottom down there.

    You see, his got his signature down and then he let it put the name in up above, it’s different.

    Hugo L. Black:

    Who encircled the Mr.?

    J. Lee Rankin:

    I assume he did but I — that isn’t the evidence in proof.

    Felix Frankfurter:

    Is — is it been challenged by the state, if I may speak of Thomas as a state the Attorney General is here I take it —

    J. Lee Rankin:

    Yes.

    Felix Frankfurter:

    — is it challenged by the state that there were these numerous, identical or for all practical purposes are identical failures in spelling or in addition or substraction identification in white registrations as against colored, is that challenged here?

    J. Lee Rankin:

    No Mr. Justice Frankfurter, that’s admitted in the record.

    Felix Frankfurter:

    That is.

    J. Lee Rankin:

    Yes sir.

    Felix Frankfurter:

    So, apart from — from making the case more vivid and concrete, you’re — you’re not addressing yourself to something has been in issue, are you?

    J. Lee Rankin:

    No.

    What I’m —

    Felix Frankfurter:

    I’m not — I’m not your — your argument in this case, and I just want to know whether there’s any context on what you’re now developing?

    J. Lee Rankin:

    I think it — no, there is not to answer that.

    Felix Frankfurter:

    Alright.

    J. Lee Rankin:

    I think this illuminates —

    Felix Frankfurter:

    Yes —

    J. Lee Rankin:

    — the kind of problem that we’re dealing with in this area.

    Felix Frankfurter:

    I understood that that let’s you know your position and I know that the counsel want to present the case to you.

    I just want to know whether, whether the basic, the underlying factor in dispute here or the legal consequence or merely the legal consequences and the obligation of state official etc., etc.

    J. Lee Rankin:

    No, they ‘re not.

    Felix Frankfurter:

    Alright.

    Hugo L. Black:

    Are the findings challenged?

    J. Lee Rankin:

    Well, I would think some of the — the findings as to the conclusions, the Court made in regard to some of the facts as to –-

    Hugo L. Black:

    Conclusions, the finding of the facts challenge?

    J. Lee Rankin:

    Well, on some parts of that — there — there’s no issue on the facts Mr. Justice Black.

    On the –

    Hugo L. Black:

    But there was finding, wasn’t there?

    J. Lee Rankin:

    Yes, there were.

    Hugo L. Black:

    Well, you say the findings.

    J. Lee Rankin:

    Yes.

    Hugo L. Black:

    Has there been any challenge to any particular part of those findings?

    J. Lee Rankin:

    They submitted findings of their own which were not the same as the Governments.

    Hugo L. Black:

    They were not accepted?

    J. Lee Rankin:

    Yes.

    That’s right.

    Felix Frankfurter:

    Did — did they find the points on this which they were hoping or on which they began, they appealed in the Court of Appeals?

    There was some doctrine indicating what they are going up on, wasn’t there?

    J. Lee Rankin:

    Well, it was a in —

    Felix Frankfurter:

    So the appeal is to question and determine.

    J. Lee Rankin:

    — it was incomplete Mr. Justice Frankfurter as we say in our brief, because the notice to appeal had been filed but they had obtained a stay and so we argue points here in anticipation of positions that they might take.

    Felix Frankfurter:

    Now, have they taken them in the brief?

    J. Lee Rankin:

    They have taken some in their brief.

    Felix Frankfurter:

    As to what —

    J. Lee Rankin:

    The — the factual situation it does not seem to be an issue between —

    Felix Frankfurter:

    Does the brief challenge some other findings of facts?

    J. Lee Rankin:

    Not as I recall.

    Felix Frankfurter:

    So, from the finding of fact, was Justice Black’s question?

    Hugo L. Black:

    I haven’t seen them.

    J. Lee Rankin:

    My recollection is the brief does not put an issue of these facts.

    It puts an issue, the legal questions.

    Hugo L. Black:

    Yes.

    J. Lee Rankin:

    There’s one other thing before a proceedings to the legal arguments that I would like to call your attention to and that is, that by these tests which I want and I think you’ll understand me but I want to make clear the Government does not think are valid constitutional tests anyway to apply these discrepancies in this manner, but they were applied in this discriminatory manner, but regardless of that, if you apply it as they did, and if you would apply them across the board to both colored and whites, this record demonstrates that you would eliminate 90% of the colored by this kind of discrepancy and 50% of the whites.

    Now, they didn’t do that, they only challenged 10% — 10 of the whites.

    Charles E. Whittaker:

    If you’re right in the statements you’ve just made, this irregular, type of irregular argument was not the constitutional basis upon which the Registrar may expel them from the rolls then that ends your (Inaudible), doesn’t it?

    J. Lee Rankin:

    Yes, if you would conclude that.

    Now that was not –

    Charles E. Whittaker:

    I didn’t say, I said assume we did —

    J. Lee Rankin:

    That was not the basis of the decision below and you might not — and you wouldn’t reach that question if you found a discrimination contrary to the Constitution which was the basis of the lower court.

    Hugo L. Black:

    If we found it?

    J. Lee Rankin:

    Well, if you found that he was, it is judgment to that effect was valid.

    Charles E. Whittaker:

    The trial court’s finding (Voice Overlap) —

    J. Lee Rankin:

    The trial courts finding–

    Felix Frankfurter:

    For it’s evidence.

    J. Lee Rankin:

    That’s right and they were fully supportive and much of it, there was no controversy about it at all.

    Hugo L. Black:

    In considering it do we have before us a permanent injunction or an interlocutory injunction?

    J. Lee Rankin:

    You have the permanent injunction.

    Hugo L. Black:

    The permanent injunction.

    J. Lee Rankin:

    Yes Mr. Justice.

    Felix Frankfurter:

    I’m a little (Inaudible) minute or two or two minutes, in some of the seven states surely, there are all white counties (Inaudible) somewhere in all black county.

    J. Lee Rankin:

    That is true.

    Felix Frankfurter:

    Now, I don’t know whether that’s in Louisiana or not, but assume an all white county in Louisiana, assume that, and the rejection for the striking from the rolls was made on what has been nominated several times as unconstitutional criteria, a misspelling of — of one’s own name by — or things like that or being wrong as this is (Inaudible) by a day.

    Assume an white county, no discrimination but white vote was struck, was stricken, names of the white vote was stricken from the list.

    Would there be any — is there any constitutional – federal, is there any — what is the law — what — on what basis if the Government or anybody else go in challenge state law and say, “You deprive me of my right to vote on this trivial misspelling,” is there?

    J. Lee Rankin:

    Wouldn’t the — this test that the state has to apply about voting in regard to — certainly in regard to federal elections have to be reasonably rate — related to that franchise or that voting.

    That’s what I’m trying to point out and if —

    Felix Frankfurter:

    And you’ll have to — it would be a very the problem, I must say in this one.

    J. Lee Rankin:

    Yes.

    Felix Frankfurter:

    The state might be very strict in its demand for literacy.

    As of the present Congress could, tomorrow this afternoon if it shows, makes its own specific requirements as to federal — as to the federal franchise, but until it has done so, the fact that the state is very strict and demands a high rate of literacy (Inaudible), I should think you would have a very different case that if you came here on that Mr. Solicitor?

    J. Lee Rankin:

    Well, that is a different problem.

    I do think it’s important to — in regard to literacy as the Court did in the Lastner case to keep in mind that if your literacy test is one that obviously is going to discriminate —

    Felix Frankfurter:

    That’s what I do solely, yes.

    J. Lee Rankin:

    — on the basis of raise or color, then it’s one that can’t stand up against the —

    Felix Frankfurter:

    And what you answered a little while ago, I think to Justice Whittaker, if the same test of a — of a failure to live up or a very fastidious standard would throw out the 10% of whites and 50% of Negroes, you also got a different problem there.

    J. Lee Rankin:

    It’s very —

    Felix Frankfurter:

    I was thinking of — of the intrinsic invalidity of a very high in my point of view, even exquisite standard of literacy or intelligence.

    If it is (Inaudible) done, I think one would of the other tough job saying that’s the deposition of your federal franchise.

    J. Lee Rankin:

    As long as it’s really related to literacy, I wouldn’t have any real problem about it.

    Hugo L. Black:

    I thought your entire argument was based on the fact it is discriminating here on the basis of color?

    J. Lee Rankin:

    That’s right Mr. Justice Black.

    Hugo L. Black:

    That case is based in the findings?

    J. Lee Rankin:

    Yes.

    I’m a little confused to what you said to Justice Black.

    I thought this was a preliminary injunction as it’s described in your brief rather than a permanent one, but if you look at the injunction, it has all the earmarks of being permanent, which is the fact?

    J. Lee Rankin:

    I thought that it was a preliminary injunction originally and then they granted permanent.

    Under the —

    J. Lee Rankin:

    I —

    (Inaudible) there’s a temporary injunction.

    J. Lee Rankin:

    It’s still a preliminary injunction.

    From your point of view, I should think you’d like to have a temporary injunction.

    J. Lee Rankin:

    Yes.

    Charles E. Whittaker:

    I don’t see how you read it between those temporary.

    However, as well as the record 153 and 154, (Inaudible) the Court is called on to take a further step, I don’t think you (Inaudible)

    J. Lee Rankin:

    Well, I inquired about that from the man who tried the case and he thought it was a permanent injunction.

    So, I think possibly it’s the same difficulty that you Justices are having with it that it was a denominated preliminary, but in a form it was quite permanent.

    Charles E. Whittaker:

    With this very jurisdiction?

    J. Lee Rankin:

    Yes.

    The reason I have dwelled upon this proposition of the discrepancy and the effect of this — even this type of discrepancies or — or defects in these applications was that this case presents to the Court the problem even if it has been administered fairly and without discrimination as far as applying the same test to the white as to the black, you would have a discrimination in effect because you would eliminate 50% by this test of the white as against 90% of the black.

    Hugo L. Black:

    Then you get back to as I understand your problem which is you have finding, saying this was done on the acaccount of color and — and there is no challenge to it, but as I understand those findings that I see, that as I understand it you open this evidence to show that they’re supported — argument showed that they’re supported by evidence? Do they claim they’re not supported by evidence?

    J. Lee Rankin:

    Well, we anticipated that they might make that claim in the way this case came up you see, because we didn’t — we weren’t able to tell when the Court took case by — at the time we filed out petitions and also our brief what their contentions were going to be.

    So, we argued that as well as the rest and we have to do that because —

    Hugo L. Black:

    Did they challenge the findings in the Court after they were made to the District Court?

    J. Lee Rankin:

    I don’t recall if they did Mr. Justice Black, but we did argue that they were fully supported by the evidence because the Court in taking the case here, although we won it below the Government did, the Court asked us if we wanted to — to file a petition by a certain date.

    So, although we have been the successful party below, we filed the petition for certiorari here and then we briefed it first without knowing fully what the other side was going to develop against us.

    And so, we tried to anticipate all the arguments that would be open to the parties if they came and they tried to show that the findings in fact — of fact and conclusions of law.

    Hugo L. Black:

    Did they file one brief or two?

    J. Lee Rankin:

    They filed one.

    Hugo L. Black:

    This brief?

    J. Lee Rankin:

    Yes.

    And that was filed on Saturday, this last Saturday by the Court’s order and we — we examined it.

    I’m not complaining about that at all, but I just wanted to show you how it lead us to the point where we had to develop our case and try to anticipate arguments as we did.

    And so, we tried to show that the findings were fully justified and in much of the evidence it was admitted.

    Now, to proceed to the question of law, we get to the question of whether this is state action.

    William O. Douglas:

    Why — why is that important?

    J. Lee Rankin:

    Whether it’s state action?

    Well, the contention is made like in Raines that —

    William O. Douglas:

    In the — you have a statute here that says — subsection (b) in page 3 whether acting on the appellant law or other way.

    J. Lee Rankin:

    Under subsection (b).

    We are treating subsection (a) and (c).

    William O. Douglas:

    Well, (c) says that violation of (b) gives the Attorney General the right to institute an action.

    If (b) is involved, well, I’m reading (c).

    J. Lee Rankin:

    Yes.

    Hugo L. Black:

    I am wondering also if it wouldn’t come under 80 U.S. Code, 241 conspiracy no more question for anything (Inaudible) so forth and it doesn’t pre exercise the enjoyment of the right which been held Constitution.

    J. Lee Rankin:

    Mr. Justice Black —

    Hugo L. Black:

    — and most of the case.

    J. Lee Rankin:

    This case was brought by the Attorney General and it was under the power of this statute of the 1957 Civil Rights Act —

    William O. Douglas:

    Under the power you — you brought it under that statute.

    Does that tie you down to any particular statute as far as the violation of law is concerned and conspiracy is concerned?

    J. Lee Rankin:

    Well, it’s conceived that the Attorney General’s own action could be brought in — under this particular statute for this type of violation.

    Now, the conspiracy under 241 was a different problem as far as the Attorney General brings the action himself.

    The — there’s no question but what individuals could bring certain actions under the civil rights statutes before them.

    And Section (b) of this statute has been construed by the Government to cover the intimidation and the threatening and coercion or attempt to intimidate, threaten or coerce any other person, Mr. Justice Douglas, rather than dealing with this type of preventing or denying the right to vote.

    See, it’s — deals with the intimidation and threatening and coerce or attempt for the process of interfering and so forth.

    Now, we — we treated this as being under subsection (a) and that the action could be brought under subsection (b) because it was not an intimidation or threatening.

    It was actually the using of Governmental process as of the state to accomplish this discrimination and it was a state action because they — they took advantage of what the statute provided for these affidavit challenges and then they submitted them, they swore to them and used the office of the Registrar in order to get all the information.

    They swore to —

    Hugo L. Black:

    Who — who used them?

    J. Lee Rankin:

    Well, they were these persons that swore out the affidavit who were members of —

    Hugo L. Black:

    They were not the state officers, were they?

    J. Lee Rankin:

    No.

    They were members of the white citizens’ council.

    They swore out the affidavits that are provided for under this state statute and put into — they triggered, initiated the state action and then that Registrar proceeded to act in accordance with their challenges, but they were the ones that triggered that state action and the statute itself contemplates that private individuals shall do that.

    Hugo L. Black:

    If that’s so, why do you talk about the state action (Inaudible) these private individuals?

    J. Lee Rankin:

    Well, because it’s against —

    Hugo L. Black:

    What do you have to do it?

    J. Lee Rankin:

    It’s a — it’s a panoply.

    It’s a combination.

    Hugo L. Black:

    Well, I don’t know what panoply means.

    J. Lee Rankin:

    It’s — it’s a —

    Hugo L. Black:

    I understand when you say that a person is not a state officer and the state is not to do it, but I don’t quite understand your panoply.

    J. Lee Rankin:

    Well, maybe I can clarify Mr. Justice Black that the persons who filed the affidavits started the action, but the —

    Hugo L. Black:

    Private –private person.

    J. Lee Rankin:

    — but they can’t remove them from their rolls.

    The Registrar has to do that.

    Hugo L. Black:

    Now, what you’re saying in — isn’t it that if a private persons joined with somebody else to take away these rights, these private persons are allowed whether they are acting for the state or not.

    J. Lee Rankin:

    Yes, Mr. Justice Black.

    Hugo L. Black:

    That’s what I thought.

    J. Lee Rankin:

    The — the only problem we have about a conspiracy is that the — the evidence did not show that the Registrar conspired with these people.

    He claimed they were interfering in this lawsuit with his operation and conduct of his office and therefore, that he want them to stop.

    That’s what he said anyway in the litigation.

    And yet, he proceeded to do all of the things that they wanted to do and when they filed only 10 affidavits in regard to whites in the parish, he didn’t say, “Well, what about all these others that I know about?” or, he didn’t proceed to remove any of those, but he proceeded to carry out the discrimination that they had started.

    Charles E. Whittaker:

    Well, Mr. Solicitor General, I — I’m just still concerned about that question.

    Now, let’s take Section 244 of record — at the Louisiana’s brief, 122.

    Now, let me — this says, “Whenever the Registrar has reason to believe that any name on the registration record has been illegally or fraudulently placed there then he may ask,” on the next Section of — at this brief, page 125, Section 245 says, “Upon a written affidavit signed and sworn to unduplicated before and filed with the Registrar his deputy by two bona fide voter — registered voters, he must act.”

    Now, suppose that the Registrar under Section 244 does not believe these irregularities make the registration illegal, he therefore doesn’t ask.

    J. Lee Rankin:

    Well, he —

    Charles E. Whittaker:

    But — but under — but — but under 245, affidavits are filed, and then you tell us that he must act and that he has no discretion even to find against the challenge.

    Is that what you want us to understand?

    J. Lee Rankin:

    Well, if you’re going to apply the state law and disregard his federal duty, we say that the federal duty doesn’t permit him to act as either one.

    But brushing that aside, the state court said that these were persons with these discrepancies were illegally on the rolls.

    So, he comes right within their Section 244 because he testified, he admitted it, that he knew that 50% of them have those and he handled these records everyday.

    So, he knew that 50% were illegally on the rolls of the white persons and it was his duty under that section of the statute, if you disregard his federal duty not to discriminate to remove them.

    It’s clear.

    Now, he said that he didn’t think these were enough and so he went to the state court and asked and the state court said that it was enough.

    The power is certainly granted to him by that Section.

    Charles E. Whittaker:

    By 244?

    J. Lee Rankin:

    Yes.

    Charles E. Whittaker:

    Well, only if he believes that he has reason to believe, then he being convinced may act, but under 245 that the affidavits he’d filed, he must act.

    J. Lee Rankin:

    That’s right.

    Charles E. Whittaker:

    Now then, is it true that he has no discretion under 245 to sustain the registration and overrule the challenge?

    J. Lee Rankin:

    Well, the — the court held — the state court held that he had no discretion that it was a ministerial act.

    Charles E. Whittaker:

    But if that violated the supreme federal rights, but of course he did (Voice Overlap) —

    J. Lee Rankin:

    That’s right.

    Charles E. Whittaker:

    And that’s —

    J. Lee Rankin:

    And that’s what we claim was his legal duty and it overrides and it was the supreme duty and therefore, he had no right to do it.

    J. Lee Rankin:

    We say he had no right to do it, because it was discriminatory.

    Charles E. Whittaker:

    That was added up for me.

    J. Lee Rankin:

    But —

    I was going to say as far as we’re concerned, the defendant’s duty, the Registrar’s duty as measured by the state supreme — by the state law is what this Court said it was his duty, that’s how we have to take the law.

    J. Lee Rankin:

    Yes.

    As far as the (Voice Overlap) —

    As a state law duty

    J. Lee Rankin:

    — state court —

    — Duty.

    J. Lee Rankin:

    That’s right.

    Then I think you put a —

    But we don’t have to worry —

    J. Lee Rankin:

    — clause on that.

    We don’t have to worry about how we read the statute.

    J. Lee Rankin:

    Well, that — that’s my interpretation Mr. Justice Harlan and then I think you put gloss of the federal law as to determine what’s supreme.

    I’m talking about the state law.

    J. Lee Rankin:

    Yes.

    And he had the power according to the state court’s interpretation to act on his own under the first section and — well, the Court told him, “These were enough” so he had no discretion Mr. Justice Whittaker once he was told that he by — by the Court that this was enough as far as the state court law was concerned, that section — the statute gave him the power to act —

    Charles E. Whittaker:

    But —

    J. Lee Rankin:

    — and had duty to that.

    Charles E. Whittaker:

    Duty?

    J. Lee Rankin:

    Yes, because they’re illegal according to the state court decision and there you get into the question of the discrimination between the two.

    Now, the further question was raised in regard to the type of relief that was granted, whether or not it was justified under the circumstances, and the findings of the fact of the Court and we think it was amply justified.

    The legislative history shows that it was contemplated by the Congress at the time the 1957 Civil Rights Act was passed that this very type of problem was discussed by the Attorney General at that time in presenting it before the Senate Judiciary Committee, the Subcommittee on constitutional rights and also before the House Judiciary Committee that this very example was discussed of this case, but an — a case is similar to it in regard to the persons being removed from the registration rolls and how it would be handled and the Senators, Senator Morris and Senator Kero discussed specifically the idea of their being reinstated upon the rolls so they’d be able to vote and it was also discussed by Congressman Miller in the House Judiciary Committee that very thing and the conduct of removing the registration rolls shortly before election in Louisiana it was gone into at length and finally, Senator Douglas asked that he be supplied some information by (Inaudible) only the third in charge of the criminal division, regard to four different, five different parishes that were involved in removing these Negroes from the rolls in Louisiana in 1956.

    And he furnished that information in detail and it’s set out in the appendix to our brief showing how they worked with this to get them off of the roll and Senator Douglas made that a part of his remarks when he addressed the senate in regard to this Bill and some other of this pretty shameful story.

    It tells how in some places, the Registrar, that isn’t this case, but the Registrar would not allow more than 50 attempts during the day to get their names – the Negroes to get their names back on the registration rolls.

    They would come there at 5 o’clock in the morning, stay all day and when 50 would be completed then they wouldn’t have anymore and that went on for days in this one parish and they weren’t able to get many of those names back on the rolls.

    Felix Frankfurter:

    Now assuming — assuming invalid or unconstitutional action, what cause or remedies are suggested in supposing what was done here by Judge Wright?

    J. Lee Rankin:

    Well, there is the suggestion that they tried to get reregister and that is not an easy process in Louisiana.

    On page —

    Felix Frankfurter:

    You mean — you mean go to Court?

    J. Lee Rankin:

    No, there — there is a provision on the constitution for going to Court, but their Court has divided on whether that is proper or exclusive way and that is referred to in our — set in the — in the record here and also in briefs referred to, but there’s also a remedy by just trying to reregister again and doing it correctly, but then you’d have to pass these tests.

    Felix Frankfurter:

    You mean go the same Registrar —

    J. Lee Rankin:

    That’s right.

    Felix Frankfurter:

    — with a (Inaudible) answer — with (Inaudible) answer.

    J. Lee Rankin:

    Well, then you go to pass tests on — on the questions that set out on page 38 at the bottom of the page and you’ve got to be a good character and you’ve to understand the duties and obligations of citizenship under republican form of Government.

    Felix Frankfurter:

    You mean there are no — no —

    J. Lee Rankin:

    New test.

    Felix Frankfurter:

    New test.

    J. Lee Rankin:

    Yes.

    Felix Frankfurter:

    Because you failed the first one.

    J. Lee Rankin:

    That’s right.

    All you got this where that these discrepancies were there and then you’re liable for a perjury under their statute if you swear anything like that.

    Well, you couldn’t swear to that because it would be a false and sometimes this — this legislative history shows in 1956, they would get some white persons to swear off to the statutory affidavit for the colored persons.

    And the Registrar says, “Oh, you can’t have that, you got to have colored persons” and when they get to colored persons, they say, “Oh, you got to have an officer to say that you’re — you’d — in this — in this residence (Voice Overlap) —

    Felix Frankfurter:

    These rulings by the Registrar, are they defined by the statute if they got to have a — a colored — potential colored voter must have colored —

    J. Lee Rankin:

    No.

    Felix Frankfurter:

    — supporters?

    J. Lee Rankin:

    No, those are just —

    Felix Frankfurter:

    That’s his ruling?

    J. Lee Rankin:

    Those are his rulings and some — now there was a case that was described by Mr. Alaman to the Senate Committee in which the Registrar was decent and fair about the whole thing and when they made the showing, he put their names back on the rolls.

    That’s one out of the five, but the rest of it was this history of all kinds of arbitrary things.

    Now, there’s also furnished as a part of the legislative history to Senator Douglas that’s set out in the appendix a copy of a newspaper account of the fact that white citizen’s counsel at in around 1956 or thereabouts decided upon this kind of course of action and trying to see how they – many Negroes, they could get off the registration list in this — in Louisiana and it’s described in detail and it’s made part of the record by Senator Douglas when he obtained it from Mr. Alaman.

    And the — the idea was that even if they had remove some whites, they get as many colored off as possible, they just said so in these to counsel there meetings and so forth.

    Now, on this particular action, this action of these particular parties that challenged these colored voters on this registration list was approved and endorsed by the white citizen’s council of this parish.

    And it’s a part of that general action.

    Potter Stewart:

    Mr. Solicitor General, it’s very (Inaudible) — your own kind of argument but I’m more than a little disturbed personally about the — the posture of this case.

    It is true, is it not, that except from the Registrar and except for Mr. Tomas, the Registrar and not on the other parties that — defendants are here.

    J. Lee Rankin:

    That’s right Mr. Justice.

    Potter Stewart:

    Their time to appeal to the United States Court of Appeals for the Fifth Circuit has not yet expired.

    J. Lee Rankin:

    That’s correct.

    Potter Stewart:

    Insofar, they haven’t filed those appeals, I guess, have they?

    J. Lee Rankin:

    I haven’t checked —

    Potter Stewart:

    As far as we know.

    J. Lee Rankin:

    — but don’t know.

    Potter Stewart:

    Certiorari of course is not being granted in this case yet the petition is pending, that’s true, isn’t it?

    J. Lee Rankin:

    That’s right, but you must keep in mind April 19th of the election date too.

    Potter Stewart:

    Well there is also of course a motion here is set aside to stay vacated?

    J. Lee Rankin:

    Yes.

    Potter Stewart:

    — stay, is there not?

    J. Lee Rankin:

    Yes.

    Now, the problem, there’s one — first thing to keep in mind in that — regard to that entire problem however, that is a discriminatory action that we’re talking about in violation of the Constitution and if the discrimination had not occurred, these people along with the whites would be right on that voting list and have the opportunity to vote just like all of these whites.

    There’s no question throughout this other people just whites having a right to vote regardless of a discrepancies because that’s the way it’s operates, no issue about it.

    So that the discriminatory action is prohibited by the constitution that we’re trying to reach and that the Congress was trying to reach too in passing this act, it will just this very business of doing it at a time when it would be difficult for the Courts to act properly enough to get it corrected and therefore, you got the job done regardless.

    Potter Stewart:

    What kind of election is this going to be on the April 19th?

    J. Lee Rankin:

    Well, it’s their second election, their run off election.

    It’s their general election.

    J. Lee Rankin:

    General election.

    (Voice Overlap)

    J. Lee Rankin:

    State general election.

    Potter Stewart:

    State general election.

    J. Lee Rankin:

    They have had the –

    Potter Stewart:

    — and which this — now only one candidate for Democratic party and the other one is in (Inaudible)

    J. Lee Rankin:

    I think there’s —

    Potter Stewart:

    — for Governor (Inaudible) Democratic-Republican nominees?

    J. Lee Rankin:

    It’s one of these five —

    Potter Stewart:

    States right.

    J. Lee Rankin:

    — states right candidate on the other side.

    Tom C. Clark:

    What effect is there (Inaudible)

    J. Lee Rankin:

    It would might be difficult if we —

    Tom C. Clark:

    We’re worried about the (Inaudible)

    J. Lee Rankin:

    Oh, we’re worried about both Mr. Justice Clark because I don’t think these votes can be evaluated just how valuable they are and they even though maybe the — the best votes for a man to have in Louisiana is to win the primary because he has more voice in the result if he does nevertheless, I think if you can — if it can be done by discrimination they can keep race or color from voting then just by accomplishing it doesn’t make any difference how it works out as long as they get it done and to defeat it, you have to try to beat that particular day if possible, that’s our problem.

    Felix Frankfurter:

    Mr. Solicitor, may I ask you to turn to the decree of the Court because after all that — that’s before us on page 163 of the record and when you have it, I’d like to put a question to you if I may.

    J. Lee Rankin:

    Yes.

    Felix Frankfurter:

    Assume — assume that the decree only subjected or that the decree only governed or controlled the action as to taken or not to be taken, the (Inaudible) with paragraph 3 maybe in (c) of 3 and paragraph 4, paragraph 1 and 2 implicates other people and paragraph 5 my hasty reading of the (Inaudible) also may raise an question, but three and four, the record exclusively (Inaudible) Thomas.

    Am I right about that?

    J. Lee Rankin:

    Yes Mr. Justice.

    Felix Frankfurter:

    Now, suppose the decree only was to carry out paragraphs 3 (a) and (b), and (c), and four, would that abort what was sought by this suit?

    Would that intimate what you’re asking?

    If you just had that to be enforced and if that was respected for Curtis and Thomas, which I assume you would — would obey (Inaudible) told you ultimately what Judge Wright’s decree, would that effectuate, what the suit is about?

    J. Lee Rankin:

    Mr. Justice, I think it would.

    The only problem left would be whether or not they tried to get additional challenges out and I would think that under this, the Registrar wouldn’t recognize any additional challenges either wouldn’t dare to.

    Felix Frankfurter:

    Well, in the first place, this 1377 are now — those would be dealt, wouldn’t they?

    J. Lee Rankin:

    That’s right.

    Felix Frankfurter:

    As to the future, there might hypothetically be raised the question that you raise, but I should doubt it in obedience for the decree.

    I mean people would — any good lawyer would say you’re awful chance —

    J. Lee Rankin:

    That’s right.

    Felix Frankfurter:

    That’s — that right as far as contempt if you disobey this.

    Well, there are only 200 left anyway I think.

    J. Lee Rankin:

    Yes Mr. Justice Harlan.

    But I thought Mr. Justice Frankfurter is (Inaudible) Well, what I was trying to deal with the possibility that there could be challenges again to this —

    All of these people.

    J. Lee Rankin:

    And in the light of the state court decree that he would still have to obey them at all, but I think that’s a very remote —

    Felix Frankfurter:

    It (Inaudible) his agent and his successor?

    J. Lee Rankin:

    Yes sir.

    Felix Frankfurter:

    So that —

    Earl Warren:

    Mr. Solicitor General, you may have 10 minutes to — additional to respond and the counsel may have 10 minutes additional also if you wish upon your time.

    Mr. Cousins — do I — do I — pronounce it correctly?

    Weldon A. Cousins:

    Cousins.

    That’s correct.

    Weldon A. Cousins:

    Oh, Cousins.

    Earl Warren:

    I misunderstood the Attorney General.

    Weldon A. Cousins:

    Attorney General.

    Mr. Chief Justice and the associate justices, this action — I would like to clear up a few facts as to how this matter appears before this Court.

    The original complaint was filed by the United States Government here under the part IV of the Civil Rights Act of 19 — the Civil Rights Act of 1957, 42 U.S.C. 1971 and particularly Section A thereof.

    The original complaint asked for a permanent injunction, motion to dismiss was filed by the Attorney General on behalf of the Registrar of Voters and by the other defendants.

    After the motion to dismissed was denied, the Government —

    Felix Frankfurter:

    The Attorney General appear for the other defendants?

    Weldon A. Cousins:

    No, he did not if it pleases the Court.

    I think the Court is familiar with the fact that the Attorney General just recently by an act of a new statute been appointed as the counsel for the Registrar of Voters wherein he is involved in federal litigation in courts for state’s rights.

    Felix Frankfurter:

    But not the — not the evidence.

    Weldon A. Cousins:

    The other individuals — the Registrar had an individual counsel which does not appear in this matter today and the individual citizens who made the initial challenges where represented by their individual counsel.

    None of whom may have taken an appeal herein, the Registrar being the only one before the Court today.

    After the motion to dismissed and was denied, the Government filed and a motion for a preliminary injunction, various testimony was taken and the Government file as to leave to the Court to make copies of some 250 registration cards which were filed in the record on a hearing.

    This matter was merely presented on the evidence of affidavits et cetera and so forth there was absolutely in no testimony other than one deposition taken of the Registrar of Voters.

    So, it’s purely a preliminary injunction matter with no testimony involved.

    The decree on the preliminary injunction was the decree from which the Attorney General filed a motion to stay in the Circuit Court of Appeals pending the perfection of the appeal.

    The day the — the appeal — the state ought it was granted by the Circuit Court, 24 hours later, this Court was furnished with a motion by the United States by the Solicitor General for the hearing which is here today and of course you aren’t aware of the decree which you rendered therein.

    Hugo L. Black:

    You construe the decree as being only an interlocutory one then?

    Weldon A. Cousins:

    On question, yes, if it pleases the Court.

    Now, its context may rely on those factors for the purposes of its form, it is to us an interlocutory decree of — interlocutory decree.

    Now, this Civil Rights Act under which the — the action is brought here find it’s origin in the Fifteenth Amendment.

    Of course, I’m sure — if it apprises this Court of the wording of the Fifteenth Amendment wherein it merely denies the — the United States or any of the states from abridging the rights of persons to vote because of their color.

    Hugo L. Black:

    Is that all it does?

    Weldon A. Cousins:

    I beg your pardon?

    If you please —

    Hugo L. Black:

    Is that all the Fifteenth Amendment does?

    Weldon A. Cousins:

    Of course, we are —

    Hugo L. Black:

    I’m talking about the language of —

    Weldon A. Cousins:

    No.

    Weldon A. Cousins:

    If it please —

    Hugo L. Black:

    I understood you say that’s what it did.

    Weldon A. Cousins:

    No.

    I’m sure you that you’re aware of the fact of the negative nature of the Fifteenth Amendment wherein —

    Hugo L. Black:

    I — I mean the last clause of it.

    Weldon A. Cousins:

    Where, Section 2?

    Hugo L. Black:

    What is the last clause of it?

    Weldon A. Cousins:

    I’m sorry?

    Hugo L. Black:

    What is the last clause of the Fifteenth Amendment?

    Weldon A. Cousins:

    Whereby Congress may pass all laws — and legislation in the (Inaudible) of these powers?

    Hugo L. Black:

    Yes.

    Weldon A. Cousins:

    I am aware of that.

    Also of course are contention here is particularly that this matter which lends to the constitutionality of it, well, we would like to discuss later, if it please the Court right now, we’re speaking of the jurisdiction, the jurisdictional clause of this whole matter wherein the Civil Rights Act comes under the Fifteenth Amendment which gives that negative power which creates a negative power to forbid the deprivation of right because of the race and color or creed.

    Now, the Civil Rights Act under which this is brought specifically state that the matter — the subsection indicates that all citizens of the United States who are otherwise qualified by law that’s Subsection 8 of this matter.

    We have here a question of jurisdiction based upon the fact our contention being that these persons are not otherwise qualified by law.

    This Court, I’m sure is a (Inaudible) very many decisions wherein it’s been said that the question of qualifications of voters is strictly within the states itself and this — this matter incidentally does concern state elections.

    The election is coming up on the 9th — April 19th, 1960 where it seems that this necessity for reinstating these people back on the road is a state election and no federal official being involved in this particular election.

    Felix Frankfurter:

    But I see if I understand you Mr. Attorney General, otherwise — well, otherwise qualified, it can’t mean can it that the state court may disqualify them and therefore, there’s a state determine this qualification and therefore they’re not citizens or otherwise qualified.

    Weldon A. Cousins:

    I — I was saying —

    Felix Frankfurter:

    Otherwise, that would really — could notify obviously very simply, federal law.

    Weldon A. Cousins:

    Well, I — I do not think it — I would carry my contention that far if it please the Court, but I would think that a question of qualification the — it’s merely the contention of the United States, the complainant herein, that these persons are qualified.

    The question of whether or not they are qualified I think should be passed upon by a state court and rightfully so, the qualification of voters being within the state to determine —

    Felix Frankfurter:

    Well, but the very — the very issue of whether or not, this is all argumentative (Inaudible) is this —

    Weldon A. Cousins:

    Yes.

    I understand.

    Felix Frankfurter:

    If the claim is that the disqualification itself is a violation of federal law, then that can’t be determined by the state court so as to prevent it being examined in the federal court that to be — has to be Attorney General under 1957 Act, would it?

    Weldon A. Cousins:

    Well, we are —

    Felix Frankfurter:

    Is that your argument?

    Weldon A. Cousins:

    My argument is — is that part, portion of it, a question is develop later when we get to the point or whether or not these people were qualified so as to come under this statute by the facts in the matter.

    Of course, I will go into that point at this moment if you wish please.

    Felix Frankfurter:

    I thought you would.

    I think that this mean that they must be 21 rather than 19 contentions –

    Weldon A. Cousins:

    I understand —

    Felix Frankfurter:

    — to think like that.

    That there is not, in other words, were otherwise meaning on matters not in dispute to entitle and to vote, but as to the matter that is in dispute, on the claim of federal supremacy it doesn’t mean to see how that is to be state determined.

    Weldon A. Cousins:

    I would say to answer to Mr. — Mr. Justice, that the question of whether or not the clause are qualified is a fact governed by the — the literacy test as imposed by the state.

    Of course here, we are dealing with a question of fact whether or not the discrepancy of a day or a misspelling of the words and so forth is enough to disqualify this person as a voter merely because they were on the registration rolls does not necessarily mean that they are qualified —

    Felix Frankfurter:

    (Voice Overlap)

    Weldon A. Cousins:

    For this reason they may have left their names on the rolls and move to a different parish, they might have died, they might have been felons and lost their right to vote because of that.

    Felix Frankfurter:

    I follow that.

    Weldon A. Cousins:

    And likewise, I would like to mention to the Court that this mere challenging, the mere issuance of a challenge, the affidavit of challenge does not disqualify a person in Louisiana from voting.

    And that I think is a basic issue here which the contention of our argument that this Court lack jurisdiction because this suit is brought on a basis of challenges which were issued to these various points.

    When the affidavit of challenge is made in the State of Louisiana, the — the Registrar of Voter — Voters as mentioned as much my Solicitor General has no discretion in the matter.

    He must as a mandatory ministerial act accept the said challenge.

    The person who is challenged receives from him within the — within two days, a citation in which citation is stated the cause of challenge, the cause of challenge is sent to this man.

    He has 10 days after receiving the citation to come in and attempt to traverse the challenge made.

    If he does successfully do so, he remains on the rose as a Registrar of Voter and he then yet has a right to vote.

    If he self-excludes himself by not answering the challenge within the 10 days, and I say to this Court that he is the man who had denied himself of the right to vote and not the man who filed the affidavit.

    He had disqualified himself from voting by not having answered the challenge.

    Again, at the end of the 10 days, if he has not answered this challenge, the Registrar of Voters again has a mandatory duty, not a discretionary duty, a mandatory duty to expunge him from the rose of registered voters.

    Hugo L. Black:

    May I ask you this —

    Weldon A. Cousins:

    Yes.

    Hugo L. Black:

    — in this connection?

    I — I’m interested in your discussion.

    It seems to me like your problem here is this.

    The supreme law as you said that you cannot do this on the account of color.

    You had a finding that it was done on the acaccount of color.

    So, you don’t claim that the state can bar him on the acaccount of color, these people on a acaccount of color —

    Weldon A. Cousins:

    We said the state could not bar him on a account of color.

    Hugo L. Black:

    It cannot be.

    Weldon A. Cousins:

    That’s correct.

    Hugo L. Black:

    If you can get down, do you not to the question of whether the finding was right in this case.

    Weldon A. Cousins:

    That’s correct.

    I would get to the point that the — whether he was qualified or not is the real issue, not his color.

    There is no —

    Hugo L. Black:

    But, but not whether he’s qualified, but whether he’s — whether you have put him out of voting because of his color.

    Weldon A. Cousins:

    That is the issue.

    That’s correct.

    Hugo L. Black:

    I don’t see were all these others have much to do with it because the sole issue here, have they been put off because of color.

    Weldon A. Cousins:

    Well, I would say the sole issue is does he have a right to come into the federal courts claiming abridgment of a constitutional right.

    Let’s assume for argument sake that one did — an individual citizen did want to — did want to challenge him because of his color.

    The mere fact that this individual challenged him would not give the United States a cause of action against that individual.

    Maybe the individual might have been discriminatory in his — in his theory or in his motivating cause for challenging.

    Hugo L. Black:

    What difference does it make about why it was done?

    The issue here is, under the findings that I see, solely whether these people have been barred from voting in the State of Louisiana on a account of color.

    Weldon A. Cousins:

    Well, I say by the state, if it please the Court.

    Hugo L. Black:

    Well, if the Registrar did it, that’s the state, isn’t it?

    Weldon A. Cousins:

    Yes, I would say that the Registrar had the mandatory duty but he did not —

    Hugo L. Black:

    Well, he don’t have a mandatory —

    Weldon A. Cousins:

    He did not discriminate.

    Hugo L. Black:

    He doesn’t have a mandatory duty, does it, if — if it’s on the account of color?

    Weldon A. Cousins:

    Well, he has —

    Hugo L. Black:

    Can the state allow him to say that it’s mandatory on you to remove this man because of color?

    Weldon A. Cousins:

    I think not.

    Hugo L. Black:

    Well, do you do not file to get back to the one issue that you have to meet?

    I don’t see you can meet it.

    Have they — does the record show that these people, the findings that were made that there were barred on account of color is supported by evidence?

    Weldon A. Cousins:

    I think not, Your Honor.

    It’s absolutely —

    Hugo L. Black:

    That’s (Voice Overlap) —

    Weldon A. Cousins:

    — no evidence to that — to that effect.

    Each challenge issued has its various defects which lend to the literacy and to the qualification of these parties which would lend to a fact as to whether or not this Court has jurisdiction, to whether or not they’re entitled to come in or the United States Attorney General is entitled to come under the Civil Rights Act under — under Section C which gives him that entitlement when interstate action barring a party from discriminating against his people solely on because of race, color, or previous condition of servitude.

    To get to the —

    Felix Frankfurter:

    But you need by ask some questions in order to bring out the fact of the whole electoral process down there that is as I understand it.

    As I understand from the decree of Judge Rice 3 (b) he says there, he must permit the names to remain all for present and current roles or qualified voters.

    That means they’re off the rolls.

    Weldon A. Cousins:

    That is correct.

    Felix Frankfurter:

    Now, what is the relation between being off the rolls and having the right to vote?

    Can you vote if you’re off the rolls?

    Weldon A. Cousins:

    You may not.

    Felix Frankfurter:

    You may not.

    After they’ve been put off the rolls which is indispensable to the exercise to the franchise.

    Weldon A. Cousins:

    That’s correct.

    Felix Frankfurter:

    And as Justice Black has indicated, the — the findings of facts are that they are off the roll because they were taken off and they were taken off because of they were colored.

    Weldon A. Cousins:

    I do not agree with the statement but —

    Felix Frankfurter:

    No, isn’t that Judge Wright found?

    Weldon A. Cousins:

    Judge Wright found we claim that the findings of fact or in error for the reason that the — they were not taking– taken off the rolls because they were colored, they were taken off the rolls because they did not respond to the challenges issued.

    Felix Frankfurter:

    Yes and the — and the — they didn’t respond to the challenges issued because from their point of view, a colored man who did this doesn’t — doesn’t qualify whereas a white man does and that’s what I call discrimination if it’s true.

    Weldon A. Cousins:

    I think that it’s not true if it please the Court —

    Felix Frankfurter:

    Well, then you are really addressing yourself.

    You don’t stop as Justice Black started in this question, namely there were findings of the facts that they were taken off the rolls, because they were colored people although the reason given was, that they didn’t spell the name right or put an extra I or didn’t cross the thing, but you say that you don’t accept those findings as the starting point for legal discussion.

    Weldon A. Cousins:

    That’s correct, I do not.

    Felix Frankfurter:

    Well.

    Weldon A. Cousins:

    I said the basis — the basis of the challenges issued herein were because of the lack of the failure of these parties to pass intelligence test, the — in the literacy test as prescribed by the state laws for qualification.

    I should like to show — read to you a couple of the applications keeping in mind that these applications were photostated by and at the request of United States Government.

    They form a part of this record.

    However, by stipulation between counsel, they have not been printed in the record but these are the identical copies which were furnished to us by the Attorney General — the United States Attorney General’s office.

    We have here one from Miss Mamie Myles.

    Of course, she spells Louisiana in outlandish way also, L-O-U-I-S-I-A-N-A.

    Hugo L. Black:

    (Inaudible)

    Weldon A. Cousins:

    I beg your pardon?

    Hugo L. Black:

    How does she spell it, I’m curious.

    Weldon A. Cousins:

    L-O-U-I-S-I-A-N-N-A-S, she has Washington spelled, W-A-S-G-T-O-N in answers the question, I have recite in the state since “all my lift “ L-I-F-T.

    In the parish continuously all lift, L-I-F-T.

    My — my color is black, my — my sex is female, F-E-L-M-E-L.

    I now, affiliate with the Democratic party D-E-N-C-R-A-T-T party.

    Charles E. Whittaker:

    Mr. — Mr. Cousins, I’m interested to know, could the Registrar as matter of right have refused to sustain challenges on those particular persons, to those particular reasons?

    Weldon A. Cousins:

    If he followed the Louisiana law, he may not incidentally.

    I think it’s important to the —

    Hugo L. Black:

    He has a description doesn’t he?

    Weldon A. Cousins:

    Yes, and he may not — he may not —

    Hugo L. Black:

    He may not?

    I thought all the Registrars in the southern states have a wide discretion.

    Weldon A. Cousins:

    To refuse a challenge?

    Felix Frankfurter:

    To — to refuse —

    Hugo L. Black:

    Or the man can vote.

    I’m not —

    Weldon A. Cousins:

    I’m sorry Mr. Justice Black.

    I think Mr. Justice Whittaker’s —

    Hugo L. Black:

    We’re talking about the same thing — we are talking about the same thing —

    Charles E. Whittaker:

    Same thing to reject to — to overrule the challenge even though these spelling errors appear may been presented by the affidavit signed by two voters challenging the voter, the voter comes in and he says, “Yes, I admit that I made these spelling errors,” does the Registrars do have power to leave him on the rolls?

    Weldon A. Cousins:

    I would say he has a duty to remove him if this — if the –if the — have power affidavits to traverse the challenge do not successfully traverse the challenge.

    However —

    Charles E. Whittaker:

    it can’t — he can’t by counter affidavits correct the spelling on the registration card —

    Weldon A. Cousins:

    Because the Registrar of Voters could have an idea that the — this word spelled the way that the Registrar had spelled it.

    In which case, of course the challenged party would take the Registrar to quote or to Court on their mandamus and have the local court — the state court decide who was correct, the Registrar and the registrant or the challengers.

    Felix Frankfurter:

    But he knew how to spell Louisiana if your Registrar in — in one of these counsels on these parishes himself spells it correctly and he looks at the –at the — he looks at the registration and see that was spelled incorrectly, it has extra N now what not.

    Do I understand you when you say that that’s sustained of challenge because automatically Louisiana is misspelled and it was challenged because he misspelled and therefore you’ll remove them from the roll, is that your view?

    Weldon A. Cousins:

    Well, Your Honor if it please, I think you would be violating his own knowledge about the matter.

    Surely, he could do it in confines of his office but his office requires him to let only registered voters on the rolls.

    Weldon A. Cousins:

    He may even —

    Felix Frankfurter:

    (Voice Overlap) — and even in his spelling, you said — I’m asking I am not —

    Weldon A. Cousins:

    Yes.

    Felix Frankfurter:

    If he — does it challenged because of a misspelling.

    Louisiana is misspelled as we’ve seen it and if — if the challenge is to the correctness of the spelling and the Registrar in good conscience and simply reading says, yes it is misspelled.

    Is he under duty to sustain that challenge?

    Weldon A. Cousins:

    I would say he would be under duty — to sustain that challenge.

    Hugo L. Black:

    Suppose he knew the man, known him many years and he was a fine, high class, good citizen, wasn’t well educated but he’s a good citizen, everybody liked him.

    You say that he would have to remove him from the roll, because he’s misspelled the words?

    Weldon A. Cousins:

    Your Honor, I would say that if he had not —

    Hugo L. Black:

    Would you say that?

    Weldon A. Cousins:

    Yes, I would if he has not (Voice Overlap) —

    Hugo L. Black:

    Under the law of Louisiana?

    Weldon A. Cousins:

    I beg pardon?

    Hugo L. Black:

    Under the law of Louisiana?

    Weldon A. Cousins:

    If he was challenged.

    Hugo L. Black:

    If he was challenge because he misspelled one word.

    Weldon A. Cousins:

    I would say that he has not met the literacy test.

    Now, of course we do have a system of where illiterates may vote under Louisiana law where they don’t have to fill out these cards.

    Hugo L. Black:

    What about this gentleman named Mr. Herman somebody?

    Felix Frankfurter:

    He’s a man I am told.[Laughter]

    Weldon A. Cousins:

    I beg pardon?

    Hugo L. Black:

    Mr. Herman is a man, did you look at his?

    Did — was it right to let him vote?

    Weldon A. Cousins:

    Yes.

    If Your Honor please, that would be under the discretion of the Registrar —

    Hugo L. Black:

    Why?

    Weldon A. Cousins:

    — whether or not he want —

    Hugo L. Black:

    Why would it be in the discretion?

    Weldon A. Cousins:

    Whether he wanted to file — there is no — I agree with you that there is no definite standards for that as far as I know is to–

    Hugo L. Black:

    That is right.

    You submit, it’s always this way I think I know it.

    Weldon A. Cousins:

    That’s correct.

    Hugo L. Black:

    It’s the law which gave the Registrar the very wide broad discretion looking at the man, looking at his education and knowing his — his standing in the community and so forth to take him or not him as he saw fit.

    Weldon A. Cousins:

    You Honor, if may it please, I think if he does that he is not doing his duty under the law.

    I think there are certain standards have been set by various decisions of the courts as to whether or not —

    Hugo L. Black:

    Well, one other answer is that he must not misspell a single word.

    Weldon A. Cousins:

    If Your Honor please I don’t —

    Hugo L. Black:

    (Inaudible)

    Weldon A. Cousins:

    I didn’t, I said there are many standards which have been set by the other Court.

    Hugo L. Black:

    Suppose you misspelled six words, he’s a good citizen, everybody knows it, a good man in the community, high standard, he’s a reputable man, is it your idea that a Registrar has to remove him from the roll?

    Weldon A. Cousins:

    I would say that would be strictly within the prerogative of the Registrar whether or not he is going to carry out his duty if it may please the Court.

    Charles E. Whittaker:

    — prerogatives, you mean discretion or duty?

    Weldon A. Cousins:

    I would say he has a duty to see whether or not a person who registers has met the minimum literacy test of the state.

    Charles E. Whittaker:

    You’re speaking under Section 244 now, that’s under Section 244?

    Weldon A. Cousins:

    244, I think it’s a kind of challenge.

    Charles E. Whittaker:

    All right, now, let’s go to 245 —

    Weldon A. Cousins:

    — if it please the Court.

    Charles E. Whittaker:

    — which is Mr. Justice Black situation where the man is presented the affidavit, two affidavits have been presented against him, saying he misspelled the word — the word Louisiana, he has 10 days within which to rejoin, doesn’t he?

    Weldon A. Cousins:

    That’s correct.

    Charles E. Whittaker:

    He comes in but he cannot correct the misspelling of Louisiana in the original registration challenge.

    Weldon A. Cousins:

    That is correct.

    Charles E. Whittaker:

    Now then, answering Mr. Justice Black’s question quite specifically has the Registrar any power to leave him on the roll or must he strike him off?

    Weldon A. Cousins:

    I thought I answer that before by saying he has the power to leave on the rolls.

    However again, the challenger has the power to take him into Court and let the Court determine whether or not this applicant has met the standards.

    Felix Frankfurter:

    — you — I thought I understood you — I thought I understood you when you said that if a challenge is made to a fellow who is on the rolls, on the ground that he doesn’t need a literacy test and the Registrar finds that in fact, the — the challenged voter has misspelled.

    I thought I understood you but you said, if he’s performing his duty he must accept that challenge as sustained.

    Did I misunderstand?

    Weldon A. Cousins:

    Your Honor, of course, you’re placing me in the position here of trying to determine what each Registrar around the State of Louisiana would do —

    Felix Frankfurter:

    No, I’m asking you what your conception is under the law of the duty of the Registrar not whether he wants to wink an eye but — but does he under the law may do what Judge — Justice Black suggested?

    Felix Frankfurter:

    The fellow has made eight misspellings but the Registrar knows him, he make a good citizen and he’s an honorable man and all the rest, has he — that much leeway to decide whether it comes within the statute.

    Weldon A. Cousins:

    Your Honor here has no more leeway than the courts would allow him if he allowed this —

    Felix Frankfurter:

    But if you’re right about that, then it’s repeating the thing over — did I understood you a little while ago?

    Earl Warren:

    Well, Mr. Cousins, may I — may I put it in just little — little different way.

    If the challenge is made, is it anything more than a mere ministerial duty on the part of the Registrar to remove it?

    Weldon A. Cousins:

    He — if that —

    Earl Warren:

    Is it a ministerial duty of his to then remove it?

    Weldon A. Cousins:

    The only time when a minimum amount of discretion would come in on the part of the Registrar is the situation as Justice Frankfurter and Justice Whittaker have mentioned that when an attempt is made to traverse a challenge made then, there would be a certain play of discretion on the part of the Registrar.

    However, that — that discretion of his would again be controlled by a decision of the court in case this — in the effect, either the challenger or the challenge would take him to test into the state courts.

    His only discretion would lie as again I repeat when affidavits to traverse the challenge are brought in.

    Other than that, he has no discretion.

    He must accept the affidavits.

    If the parties do not come in within the 10 days prescribed, he must mandatorily expunge these people from the registration rolls.

    Charles E. Whittaker:

    Well the, but — but how — please tell me I don’t understand how would I go about traversing by an affidavit, a misspelled word in the registration certificate?

    Weldon A. Cousins:

    Your Honor if it please, it’s — it’s conceivable that the person who made the challenge was in error in making the challenge on the misspelled word.

    Again like the age here is quite conceivable at the person who challenged on the basis of age was wrong in the challenge, and if a party who was challenged could bring an affidavit to prove that they were correct and the challenger was in error, then certainly they’d be entitled to remain on the rolls.

    Felix Frankfurter:

    Now, take the — take the exhibit if the Government (Inaudible) his brief on page — open at page 42.

    Mr. Cousins and if does A do not computed correctly on application, age do not considered correctly on application, well that’s a — that’s an arithmetic calculation, isn’t it?

    Weldon A. Cousins:

    That is correct.

    Felix Frankfurter:

    Now, and so, no affidavit as Justice Whittaker suggested could — could change that correct challenge if that would be a correct challenge, could it?

    Weldon A. Cousins:

    I would say that it is conceivable that it could, if it please Justice Frankfurter for the —

    Felix Frankfurter:

    But just as you give (Inaudible) would you?

    Weldon A. Cousins:

    I would say that this man who has been challenged could file three counter affidavits of persons who would calculate the age the way this Registrar has calculated.

    Felix Frankfurter:

    You mean, calculate erroneously and say that the division as to arithmetic was carried.

    Weldon A. Cousins:

    Your Honor, Mr. Justice Frankfurter if it please the Court, this is an allegation by a challenger.

    This is not the decision of the Registrar.

    Felix Frankfurter:

    Oh, but he —

    Weldon A. Cousins:

    This is not the decision of the Registrar.

    This is the an — this is the opinion of the challenger.

    Felix Frankfurter:

    But wouldn’t the correctness or error of his claim be something to be verified or discredited by just looking at the dates he gives.

    Weldon A. Cousins:

    Well, that’s correct.

    That’s correct.

    Felix Frankfurter:

    And if that charges is sustained age not computed correctly, all sorts people make mistakes, I believe half of the human race if half the human race (Inaudible) make mistakes in calculating their ages.

    Weldon A. Cousins:

    That is correct if it pleases the Court, but that would not be a question for this Registrar to decide.

    He would merely try to ascertain the correctness of the traversing affidavits which were presented by the present challenge.

    This is —

    Hugo L. Black:

    This (Inaudible) on it’s face it’s wrong does it, mathematically speaking.

    If –if —

    Weldon A. Cousins:

    If Your Honor Please.

    Hugo L. Black:

    If it does, how could he get three people to come up in (Inaudible)

    Weldon A. Cousins:

    Well —

    Hugo L. Black:

    Did you have Registrars in Louisiana who would take that direction and say, “Well, we were wrong and collected.”

    Stating it corrected first, we have three witnesses who said that’s right we accept it.

    Weldon A. Cousins:

    May it please the Court at — at the state — the state court have held and I think we have some decisions to bear that out that the question of computing age is a fact that must be met by some six states in literacy test and if the courts, the states require that, then of course they will have to comply with it.

    Felix Frankfurter:

    Does the — (Voice Overlap) —

    Did I — I’m sorry.

    I would try to just to come back to the question put by Justice Black.

    You start here with the findings of the District Court that these people were excluded solely on the ground of color.

    That’s what the District Court found.

    Weldon A. Cousins:

    That’s correct.

    You say the evidence doesn’t support it.

    Therefore, we should overturn the finding.

    Supposing we disagree with you on that and to say that we cannot overturn that finding because there is sufficient evidence that it is supported.

    Where do you go from there in your position?

    Weldon A. Cousins:

    Your Honor, if it please the Court, I would certainly — first — that even though you might —

    That’s your case, isn’t it?

    I mean that’s — that’s the essence of this case leaving out of all this discussion about what the Registrar can do and can’t do, you start with findings of the District Court, these people were discriminated against on account of color and only color and you either have to persuade us to overturn those findings or you’ll have to show us why if we have accept the findings notwithstanding that the District Court ought to be reversed.

    That’s the whole case, isn’t it?

    Weldon A. Cousins:

    Well, if it please the Court, of course we questioned the jurisdiction of the matter principally, because we think there is no sufficient case here initially — this — remember this action was brought because these challengers had made t — had made this challenge and the Registrar had to accept the challenge.

    Of course, that would – we cannot deny that the Registrar is state action, but as to the other individuals who unfortunately are not before this Court today, we doubt the state action on their part.

    Weldon A. Cousins:

    Of course, we put the same reasons as this Court has under the decision now in the Raines case attack the constitutionality of the Civil Rights Act itself, because of the broadness of particularly of section — Subsection A, thereof —

    Felix Frankfurter:

    Assume — assume that as to everything else from the case, you start from their names that the finding is not overturned that they were stricken off the road because of color and the only thing that they would then you confront in opinion (Inaudible) Attorney General namely, that the — only the — only the Registrar before the Court and not these private individuals.

    Do you find any embarrassment, any difficulty in sustaining paragraphs 3 and 4 of the decree?

    Could that —

    Weldon A. Cousins:

    I would —

    Felix Frankfurter:

    — would commerce not be subjected to what Judge Wright their decree?

    Weldon A. Cousins:

    I would think that to find the decree is an error principally —

    Felix Frankfurter:

    Yes.

    I don’t know, but I’m addressing myself to the question whether the absence of the council people makes the difference.

    Weldon A. Cousins:

    I — I would say that it does make a difference to as to the jurisdictional standpoint —

    Felix Frankfurter:

    Well —

    Weldon A. Cousins:

    — if it pleases the Court, because there was the action on a part of those individual was individual action and not state action.

    Felix Frankfurter:

    Yes, but assume you’re right about that.

    Assume couldn’t the proceeding have been began merely against Thomas?

    Weldon A. Cousins:

    Possibly, it could have actually — It could have been drawn against Thomas.

    Felix Frankfurter:

    (Voice Overlap)

    Weldon A. Cousins:

    He had been the man who had done — completed the act —

    Felix Frankfurter:

    Well, he asked on that.

    I mean, he is the only follow who really controls whether the name should stay on or be stricken from the roll, isn’t it?

    Weldon A. Cousins:

    That’s correct.

    Felix Frankfurter:

    And he’s decreed in three and four to disregard these challenges by other people to be sure but disregard them and restore their names to the roll.

    Now, is there any impediment to this caring out that direction or decree of the Court?

    Weldon A. Cousins:

    It would be an impediment.

    It would be a violation of the laws of the State of Louisiana.

    These people having been taken off of the rolls immediately, if it please the Court, I’d like to mention that if this did not happen in one day, this is over a period about one year that these various challenges were made.

    And incidentally, I think it’s significant that the Court take into consideration the fact that the Government in this matter while they claim 1377 persons, there was actually evidence as to only 155 presented down in the court below.

    Felix Frankfurter:

    Well, I’ll take your word for that, a hundred and whatever it is, but 3 (a) says, he — he’s enjoined from giving any legal effect to the approximately fake challenges while in the office.

    Now, he could carry that out without any unimpeded by the absence of the — of the — what do you call consider these council, couldn’t he?

    Weldon A. Cousins:

    Oh, yes.

    If — if not —

    Felix Frankfurter:

    (Voice Overlap) —

    Weldon A. Cousins:

    Excuse me.

    Felix Frankfurter:

    I beg your pardon.

    Weldon A. Cousins:

    If it please the Court, Mr. Justice Frankfurter, he could not under Louisiana law you say.

    Felix Frankfurter:

    Well, I’m –I’m — no.

    I’m now speaking merely to the point of the absence of the citizen’s counsel.

    Forget about Louisiana law —

    Weldon A. Cousins:

    Yes.

    Felix Frankfurter:

    — and forget everything else.

    The fact that the citizen’s counsel is not before this Court, is unrelated to the —

    Weldon A. Cousins:

    That’s correct.

    Felix Frankfurter:

    — power of the Court to arrest Thomas to carry out 3 (a), is that right?

    Weldon A. Cousins:

    Entirely so.

    Yes.

    Felix Frankfurter:

    Equally it’s on 3 (b).

    Weldon A. Cousins:

    That’s correct.

    Felix Frankfurter:

    Alright.

    Weldon A. Cousins:

    May it please the Court, but we are prepared to contend that this decree goes much further than it possibly ever should have.

    Felix Frankfurter:

    Well, it can’t go any further from the specific term of Judge Wright’s language, can it?

    Weldon A. Cousins:

    Well, we contend that the — the language is in error on — on the findings of fact and conclusions of law therein —

    Felix Frankfurter:

    But, for reasons other than the absence of the city counsil, of the —

    Weldon A. Cousins:

    Yes.

    That is correct.

    Felix Frankfurter:

    All right.

    Weldon A. Cousins:

    If it please the Court, the reasons other than absence of the citizen’s council —

    Earl Warren:

    Mr. Cousins, that little — little troubled by this affidavit of Affoway Smiths and that it was — she was taken out the road because she made a mistake to say in her age.

    What was the mistake?

    How much of the mistake did she made?

    Weldon A. Cousins:

    Your Honor, if it please the Court, I haven’t examined each one of these.

    Earl Warren:

    But it’s on —

    Weldon A. Cousins:

    (Voice Overlap)

    Earl Warren:

    — it’s on page 42(a).

    It’s one of this — it’s one of these in the Government’s brief, the first one.

    Hugo L. Black:

    Would you mind figuring it out for us and let’s us know how much you saw?

    Weldon A. Cousins:

    You Honor if you’re placing yourself in the position of the Registrar —

    Hugo L. Black:

    I mean, I’m talking about the date there.

    Weldon A. Cousins:

    The (Inaudible) registry–

    Hugo L. Black:

    I want to see.

    I — I have definition in the Government, I might figure — I might figure it out when (Inaudible)

    Weldon A. Cousins:

    Do you know that under the Louisiana law, the Registrar may not help a registrant so if you’re approaching me under a position of a registrant, I would not be able to give you the help you’re asking.

    Now, I thought that was your point in asking the question.

    Hugo L. Black:

    Oh, no, no.

    I — I just don’t quite understand.

    Weldon A. Cousins:

    If Your Honor please, I find one year.

    Hugo L. Black:

    One year?

    Weldon A. Cousins:

    One day in error.

    That’s correct.

    Hugo L. Black:

    One day?

    Earl Warren:

    One day error out of 70 year there’s 70 years and that — that you take her off rolls court.

    Weldon A. Cousins:

    I beg pardon?

    Earl Warren:

    And that you take her out for the rolls court.

    Weldon A. Cousins:

    If it please the Court, I did not take her off the rolls.

    She was taken off the rolls —

    Earl Warren:

    (Voice Overlap) — your state statute.

    Weldon A. Cousins:

    No.

    The state — the state didn’t cause it that she be taken off, but she caused himself to be taken off the rolls by not responding to the challenge.

    Earl Warren:

    I could see —

    Weldon A. Cousins:

    That’s our contention.

    Hugo L. Black:

    — she responded if she made a day’s mistake, I think she denied.

    Weldon A. Cousins:

    Your Honor, if it please, but I’d like to mention something else to this Court, if she responded to the challenge she would be told what was wrong with her — with the calculation.

    Hugo L. Black:

    Would that cause have to be forgiven from the — the one day (Voice Overlap) —

    Weldon A. Cousins:

    She — the very next day, she could go in and then register correctly.

    There is no deprivation of a voting right here, it was the whole crops of this thing.

    There is no deprivation of a voting right.

    Hugo L. Black:

    In other words, you’re telling us that this woman would have no trouble if she could go back there right now and tell him she’s wrong and get registered tomorrow.

    Weldon A. Cousins:

    That’s exactly right.

    Everyday since these matters came up, she could go — any — any day she could had gone back.

    Hugo L. Black:

    Alright.

    Weldon A. Cousins:

    That’s correct.

    And as a matter of fact it —

    Hugo L. Black:

    By the way Mr. Cousins, was she one day older and one day younger than —

    Weldon A. Cousins:

    I had one day older.

    Hugo L. Black:

    She should had been one day older?

    Weldon A. Cousins:

    That’s correct.

    Yes.

    Tom C. Clark:

    (Voice Overlap) the error isn’t it?

    Then she come in and said she calculated her age on accounting June the 4th the date that she filed the application.

    Weldon A. Cousins:

    Your Honor if it please, I think that would be up to the each Registrar and if you used the standard system for everyone, whether he use — included the day of registration or whether he excluded the date of registration would have to be a standard thing that he would apply to all registrants.

    Tom C. Clark:

    What I meant did she say that?

    Weldon A. Cousins:

    Well.

    Tom C. Clark:

    She’ll say well I am here (Inaudible) June 4th, I knew it’s going to be one more day, but I thought, you didn’t count June 4.

    Weldon A. Cousins:

    I think your —

    Tom C. Clark:

    (Inaudible) is right.

    Weldon A. Cousins:

    If the standard work to count the — the day as worked by the office and as set out by the office.

    Now, I think she’d be obliged to comply with the standard set by the office for registration, it’s part of the literacy test.

    Hugo L. Black:

    Would you mind referring me to the precise language of your Louisiana statute which imposes an absolute and (Inaudible) registrar as to abate under the law to remove a person from the roll, who makes a one day mistake in calculating the number of days he has lived.

    Weldon A. Cousins:

    Mr. Justice Black.

    Nothing, I am personally trying to evade the question.

    Hugo L. Black:

    (Voice Overlap)

    Weldon A. Cousins:

    Mr. Robert has — has an opportunity, he has the all of the Louisiana law to cover with you, and if it please the Court as much as my time expired.

    Hugo L. Black:

    (Voice Overlap) — part of the statute on which you rely about saying that he has no discretion in the case of that kind.

    Weldon A. Cousins:

    That he has no discretion in the case, I think that this statute does not set out a specific standard to the day.

    Felix Frankfurter:

    (Voice Overlap) — you referred to and that’s the (Inaudible)

    Charles E. Whittaker:

    Sections 244 and 245.

    245 is the one you most nearer to what you’re referring to, isn’t it?

    Weldon A. Cousins:

    Well, you’re speaking about the challenges of affidavit, now as to the literacy test there are many statutes, the constitution also as to the literacy test.

    Charles E. Whittaker:

    What about the discretion of the Registrar?

    Weldon A. Cousins:

    The discretion of the Registrar actually comes out of the language of the case which she filed against the — these very persons who were the cause of this action.

    Now, the citizen’s council had began to issue many challenges against him and he in attempt to avoid either to work or to keep these people on rolls filed a suit in a 23rd Judicial District Court asking of declaratory judgment and injunction against these persons from issuing these citations and affidavits against him.

    And therein, the Court told him that the only time he had no discretion in the matter, he must necessarily accept the challenge that only time, any discretion on his part might come into play is when he considered the affidavits to traverse the original — original affidavit of challenge.

    Am I right in thinking that the District Court Judge Wright did not concern himself as to whether the particular challenges were good or bad or whether the District — whether the registrar did or didn’t have jurisdiction that all he found was that whenever the state law, it’s application had not been applied equally to Negroes and whites.

    Weldon A. Cousins:

    That is correct.

    That’s he whole thing he found.

    Weldon A. Cousins:

    He found (Inaudible) discrimination.

    So, we’re not really concern with anything except the sufficiency of discriminatory application.

    Weldon A. Cousins:

    Well, if it please the Court, now, I would say discriminatory application — I’m reluctant to use the word application.

    I would prefer using discriminatory use of the law by certain individual citizens if it pleases the Court.

    But the application of the law stated by the Solicitor General on the part of the Registrar of Voters was not misapplied.

    There were 1377 colored persons challenged.

    There were 10 white persons challenged.

    In each instance, the Registrar did his mandatory duty and issued the citations against all point issues.

    So as to him, there was no misapplication of the law.

    But he also — but he also testified did he not, that even though there were only 10 challenges to white persons, he, the Registrar knew that 50% of the registrations of white persons had the same character of infirmity under state law as the 10 challenges exhibited.

    Weldon A. Cousins:

    Your Honor if it please the Court, the testimony does not bear out that statement as — as it was quoted to the Court here.

    The — the Registrar of Voters was asked that question at the time of deposition of judge was made for the question for the reason that this man had not had a chance to go over the Courts.

    And frankly, we — it’s not in a testimony.

    We feel the only time in knew about — this was after this arose and there, he was asked about how many of the white people and he said “About 50%.”

    He did not say there was this.

    He didn’t know specifically of the white discrepancies.

    Felix Frankfurter:

    Could you — could readily turn to the actual statement of the Registrar, the question and answer?

    Weldon A. Cousins:

    It is on page 50 and 51 of the transcript please.

    Felix Frankfurter:

    But you said (Inaudible) about that.

    Weldon A. Cousins:

    About, that’s correct.

    I would not say that he was in positive knowledge of that.

    Felix Frankfurter:

    (Inaudible) relevance you have in concern to our problem, would make 40% of 47% or 55%.

    Weldon A. Cousins:

    That’s correct.

    Earl Warren:

    Mr. Cousins, may I ask you this question, laying the challenges aside for the moment, laying the challenges completely aside, does the Registrar have either the right or the duty to purge the rolls voters who have made mistakes for which they might be challenged in the manner they were challenged here?

    Weldon A. Cousins:

    He has a duty to do it every four years, if it please the court.

    Earl Warren:

    And, well —

    Weldon A. Cousins:

    He should do it (Inaudible) up to date all the time.

    Earl Warren:

    He’s supposed to keep them up to date all the time?

    And — and to remover any that he — that he knows or almost arose illegally.

    Is that right?

    Weldon A. Cousins:

    That’s correct.

    Earl Warren:

    Yes.

    Weldon A. Cousins:

    And as to the judgment of the District Court and so forth.

    Many of these application is obvious from the reading from these applications which were photocopied by the Government that they — that Registrars evidently helped many of these colored people to get on the rolls.

    If there was someone in error, he was in error but not to a discriminatory purpose.

    Earl Warren:

    But the thing was going through my mind was this.

    If having the — the duty to remove from the rolls, people who were not legally registered, he sat by and did nothing at that kind knowing as he said here that 50% of the white people were subject to the same infirmities that these colored people were subject to and then he left the white councils come in and make affidavit to challenging 98% or whatever it was, or 85% of all the — all the colored voters and he did nothing about the 50% of the 11,000 white voters who were in exactly the same position.

    Isn’t that in itself a state discrimination?

    Weldon A. Cousins:

    If it pleases the Court, answering Mr. Chief Justice, I would like to bring to attention to the Court that before these challenges were issued, there was 90% colored people illegally on the rolls, now, there’s only 50% white people illegally on the rolls.

    But before these challenges were issued, they too did not qualify and they were 9 — they represent 90% of the colored vote on the roll.

    Earl Warren:

    Yes.

    Weldon A. Cousins:

    So, there certainly cannot be said they’re been discriminate against by having been left on the rolls in a — ineligible position and probably would still have been there if the citizen’s council hadn’t initiated the challenge.

    Earl Warren:

    But if he took off for any reason whether through his — through his own responsibility, his own duty, or whether through challenges that he took off them off rolls 85% of all the Negroes were registered and left on — on the rolls, 50% of the — of the white voters knowing that they have the same infirmities where it was his duty to take them off, wouldn’t that in itself be discrimination by the state?

    Weldon A. Cousins:

    Your Honor if it please, we would like at this moment, if it please the Court to get rid of this Registrar of Voters but we could mot because this matter pending.

    He unquestionably has been relax and not competent in his duty.

    These people should never have gotten on the rolls, the whites or the colored — colored who were unqualified.

    However, nothing was done, nothing will be done until this matter is determined.

    Weldon A. Cousins:

    He unquestionably only eligible qualified voters in the state rebelled against this thing.

    Well here, we have so many unqualified people on the roll.

    Each unqualified vote nullifies both of the qualified persons.

    So, certain the white — the qualified persons do not whether they’re white or colored to be on the rose anymore.

    This is just a practical political thing that has been done somewhere along the line.

    These people got on the roll when it rolls, when they weren’t entitled to and the machinery of the state allowed just such a purge as was the challenging system is put in not for purge but to protect the rolls from this sort of practical politics being executed in the state.

    Earl Warren:

    Well, have there any — is there any parish in the state where they have taken off vast numbers of white voters?

    Weldon A. Cousins:

    There it might sound please —

    Earl Warren:

    Where?

    Weldon A. Cousins:

    If it please, the parish of New Orleans is practically, many of the parishes have white — white purges Washington Parish, Orleans Parish.

    Earl Warren:

    For what purpose?

    Weldon A. Cousins:

    Political purposes.

    Earl Warren:

    (Voice Overlap) — and I mean —

    Weldon A. Cousins:

    Various reason, any reason, the same reasons that there on this Court.

    Earl Warren:

    Well, it is one thing if a man moves out of the district, it’s a one — one thing if he’s dead.

    It’s another thing — another thing if he — if he does something else, if he’s convicted of crime perhaps but for things of this kind.

    Weldon A. Cousins:

    Those are identical reasons if it may please the Court that they use in every instance to get white people off the rolls as well colored people of the rolls.

    It’s a practical political maneuver.

    It is not discrimination when it’s against to white people.

    He had to tell he has a discrimination once against the colored people, but the same system is used all over the state as against whites by one political fraction as against the other political fraction.

    Felix Frankfurter:

    May I ask you – I beg your pardon?

    Hugo L. Black:

    Do I understand you to tell us that this is merely political pride to take the voters off against the (Inaudible)

    Weldon A. Cousins:

    I would say it very definitely could be Your Honor.

    I am not to pass on —

    Hugo L. Black:

    (Voice Overlap)

    Weldon A. Cousins:

    — a discrimination.

    I beg pardon?

    Hugo L. Black:

    I understood you to say it was.

    Am I wrong about that?

    Weldon A. Cousins:

    I say it is done as political matter all over the state.

    Weldon A. Cousins:

    It’s a practical political matter.

    We have the CCDA.

    We’ll get against the RDO voters when they think they have people who are not registered properly on the rolls and the various fractions throughout the state will use this very law to purge the rolls of voters who — when they — when political passion might get each Registrar of Voters in there who will be over solicitors and over generous towards a Registrar and get the roll chuck full of people who are not — normally not be qualified because there is a vote block to be had there.

    Hugo L. Black:

    Since this case was tried, the only — the only one other question, since this case was tried, it is developed the 50% of the white voters are wrongfully on the ballot, has your registrar removed any those 50 percent?

    Weldon A. Cousins:

    We would not let him do anything until we get this matter to settle.

    Hugo L. Black:

    You’re not going to do it.

    Weldon A. Cousins:

    I beg pardon?

    I say that we would not let him do something.

    Frankly, I do not know at this moment, if it please the Court.

    Personally I — I have no knowledge with that.

    Felix Frankfurter:

    May I ask you apart from this litigation, is there any authority — who has authority if anybody has, the Attorney General to initiate purging the rolls of improper registrants?

    Weldon A. Cousins:

    The Attorney General does not have that authority.

    Felix Frankfurter:

    Anybody?

    Weldon A. Cousins:

    The registrar —

    Felix Frankfurter:

    — that involve, that– all have to be.

    Weldon A. Cousins:

    The Registrar of Voters himself and other qualified registered voters.

    Felix Frankfurter:

    It merely says that the motion must derived from a citizen —

    Weldon A. Cousins:

    Or the registrar himself.

    Felix Frankfurter:

    The registrar himself.

    So, that — so that if there are — if these improper — if these 1300 — 1300 colored people who were improperly who were stricken but improperly stricken because the same impediment, the same disqualification related to white voters who remained on the roll if they were restored, the registrar could take both colored and white off, couldn’t he?

    Weldon A. Cousins:

    That’s correct.

    Felix Frankfurter:

    Provided he operated with (Voice Overlap) —

    Weldon A. Cousins:

    (Inaudible)

    Felix Frankfurter:

    So that restoring this — the illegal as you claim, there would be illegal voter —

    Weldon A. Cousins:

    That’s correct.

    Felix Frankfurter:

    — would merely mean, that he would have to protect these off but also take the whites off in equal measure, is that right?

    Weldon A. Cousins:

    That’s correct.

    Felix Frankfurter:

    That could be done.

    Weldon A. Cousins:

    That’s correct.

    Felix Frankfurter:

    So that the state isn’t impudent, it doesn’t have to wait if some private citizen begins to move against particular people, is that’s right?

    Weldon A. Cousins:

    That is right, thank you.

    Henry J. Roberts, Jr.:

    Mr. Chief Justice —

    Earl Warren:

    Mr. Roberts.

    Henry J. Roberts, Jr.:

    — and the Associate Justice if could take just a little bit of a time to see if I could explain exactly the situation we have here to see if I can bring this Article 245 into focus as to exactly how did they use in this instance.

    For instance, under the Louisiana registration system, the talk today on 245 is a challenging system opposed to the fact that these registered voters at one time had been a member of voting society because they were illegally placed upon the rolls.

    Now reason why we say that is that under the constitution of Louisiana, we have a specific requirement as to be a registered voter.

    The constitution which is set out in our brief says, that you must be at least 21, you must live in the State of Louisiana or locale for certain amount of time and more importantly, you must be a registered voter.

    Now, by being a registered voter, you must obey the requirements set out is both the constitution and in the legislative acts.

    Now, as this situation is presently developed, what has happen here in Washington Parish is that these people originally, whenever qualified, they should never have been placed upon the rolls, whether they be white or whether they be black because under Louisiana law, under the constitution, the filling of the registration blank itself is a literacy test.

    Now, if you fail to pass the literacy test, that is the only time, the only time that the Registrar has any discretion.

    He has no discretion whatsoever under 245.

    Under 245 two registered voters come in and they say that they want to challenge me because I have done something wrong, I have misspelled a word, the registrar must — under the Louisiana law, issue that challenge.

    He sends that challenge to me and it’s up to me to get three registered voters to come in and attempt to traverse that affidavit.

    You ask me how I will traverse it, supposing I spelled the name of Louisiana wrong, suppose and I spell it L-U-Z-I-A-N-A and suppose I bring three registered voters with me who think that I have spelled Louisiana right who tell me, “I agree, that’s the way you spell Louisiana, L-U-Z-I-A-N-A” and my Registrar at that time has no discretion.

    He has to accept the fact that you spell Louisiana, L-U-Z-I-A-N-A.

    Hugo L. Black:

    Even though you do not?

    Henry J. Roberts, Jr.:

    Even though you do not.[Laughter]

    Now, wait let me — let me bring my point.

    The point B that the Registrar does not have the discretion to determine how to spell Louisiana, the only time he has that discretion is when he is registering an individual for the first time.

    William O. Douglas:

    But at that kind of a case came up at Louisiana or any other state try to be (Inaudible) literacy test, we certainly would never uphold that claim, would we?

    Henry J. Roberts, Jr.:

    I think in —

    William O. Douglas:

    Everybody makes mistakes in writing and spelling.

    Henry J. Roberts, Jr.:

    That — that’s right, but I think it is up for the State of Louisiana Court, the Court in Louisiana to tell you how to spell Louisiana.

    William O. Douglas:

    I know but I mean, assuming the first who makes mistakes, we would never sustain that as a literacy test, could we?

    Henry J. Roberts, Jr.:

    I don’t — I don’t think you would sustain it as a literacy test because it’s unreasonable.

    William O. Douglas:

    We never held that the — it was never held the state have a spelling?

    Henry J. Roberts, Jr.:

    No.

    The Supreme Court of Louisiana has held this in a case cited by us, Bishop versus Shipburn, the very fact in miscalculation of age, that very fact has been held to disqualify a person from registering.

    Hugo L. Black:

    May I ask you on — on that?

    Suppose a man is born in 1910 and he registered in 1958 and he puts on his registration that he is 65-year-old.

    Henry J. Roberts, Jr.:

    Yes sir.

    Hugo L. Black:

    He made a mistake.

    Can he then excuse that by getting three people to swear that he was 65 even though he is really 58?

    Henry J. Roberts, Jr.:

    Your Honor, let me say this.

    I think that man can.(Voice Overlap) —

    Hugo L. Black:

    He can do that.

    In other words, the Registrar has to take the word of these three witnesses?

    Henry J. Roberts, Jr.:

    That’s right sir.

    Hugo L. Black:

    That from 1910 to 1958 is 69 years.

    Henry J. Roberts, Jr.:

    Well, of course Your Honor, that — that example there is — is as ridiculous as some of the things that may occur in a registration.

    For instance —

    Hugo L. Black:

    Well, I’m — I’m just trying to find out.

    I thought you were saying that, that if they made a mistake in calculation, they can get somebody to come and swear that it was a mistake —

    Henry J. Roberts, Jr.:

    Well —

    Hugo L. Black:

    (Inaudible)

    Henry J. Roberts, Jr.:

    Your Honor I say this, that if the two people who come in with that — with three people coming in with that affidavit to indicate that they agree that the man is — they can’t subtract 58 from a certain age and get an idea, how old the man is they won’t know either.

    The point is that these applications are on the rolls right now.

    We do know that our Registrar didn’t know how to calculate.

    Hugo L. Black:

    You mean your Registrar?

    Henry J. Roberts, Jr.:

    That’s right sir.

    Hugo L. Black:

    Can he vote?[Laughter]

    Henry J. Roberts, Jr.:

    Disqualification that it is, that’s where the 222.[Laughter]

    Earl Warren:

    We’ll recess now.