Davis v. Gallinghouse | Cases | Westlaw

On August 6, 1965, the President signed into law the Voting Rights Act of 1965 (Public Law 89-110). On August 11, 1965, A.P. (Tim) Gallinghouse, Registrar of Voters of Orleans Parish (hereinafter sometimes referred to as the ‘Registrar’) announced that his office would begin complying with the Voting Rights Act; at the same time he filed suit challenging the constitutionality of that act.¹

The background circumstances giving rise to the present suit are as follows: subsequent to the passage of the Voting Rights Act, large numbers of prospective registrants appeared at the Registration Office and formed long lines waiting to get into the office. Because of the requirement that registrants document identity and residence, members of the Interdenominational Ministerial Alliance patrolled the lines checking the documents of prospective registrants to see if they were in order. If not in order, the ministers would send the registrant home to get the proper papers, saving his place in line so that when he returned he would not have to wait in line again. If a person entered the Registrar's office and there was told that his documents were not in order, he, after returning from home with the proper documents, would be escorted into the office ahead of the line, thus causing him no further delay.

Sifting through plaintiffs' allegations, proof and argument, these main charges emerge:

I. That the Registrar has, in the application of the rules of his *211 office concerning identification and proof of residence, discriminated against Negroes;

II. That the Registrar has, even if on a non-discriminatory basis, deliberately slowed down the registration process, thereby discouraging prospective Negro registrants, by demanding unlawful and unreasonable proof of residence and engaging in other slow-down practices;

III. That even if present registration requirements are lawful and non-discriminatorily applied, these requirements, which the Registrar initiated early in his tenure of office, differ from the requirements in effect in earlier years when discrimination against Negroes was practiced and thereby must be struck down under the ‘freeze-out’ doctrine approved in Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965).

I. DISCRIMINATION

August 11 to September 7 (start of this trial)

August 11 to September 24⁵

Since the statistics do not indicate discrimination there must be some other form of substantial proof made. In finding that there has been no discrimination against Negroes in the registration process since August 11, 1965, this Court does not feel it is shutting its eyes ‘to what all others than we can see and *212 understand,'⁶ but rather is making an analytic finding in accord with reality and the evidence.

There was no evidence introduced into the record of the total number of people turned away for lack of adequate documentation of residency. The fact that the Registrar's office does not keep such records does not relieve plaintiffs of the burden of producing testimony from those who were allegedly turned away. The ministers in the hall would have been aware of any such people, and plaintiffs' counsel could readily have produced them.

Plaintiffs admit that a rigid standard, requiring certain specific documents, could work a hardship on some members of their class, was might not have a specific document, such as a driver's license. The standard used is not an onerous procedural requirement to effectively handicap exercise of the franchise by the colored race,¹³ but is made easy for them to meet.¹⁴

‘Q And I take it from your testimony that you believe that Mr. Bull in that position has corrected mistakes made by deputy registrars, and has permitted people to vote— I mean to register to vote?

‘A Yes, sir.

‘Q Now, isn't that basically what you discussed with Mr. Gallinghouse on your first visit with him where you asked that when persons were turned down that there be a sort of an appeal permitted to a so-called higher authority?

‘A We didn't ask this; this is what was told us, that if we found any problems in regard to this, that we could bring the people in to him and he would see that the matter was corrected.

‘Q Isn't it a matter of fact that this has been done through the offices of Mr. Bull?

‘A Mr. Bull has been doing that essentially, yes.

‘Q He has been doing that essentially?

‘A Essentially, yes.

‘Q And, generally, don't you believe Mr. Bull has handled that, has handled his decisions in a non-discriminatory and fair manner?

‘A Yes. I stated earlier as far as Mr. Bull's work and so forth, I mean, this is quite all right. Oh, no, I have nothing to say against Mr. Bull and his activities at all— no.

‘Q In other words, most persons that are turned down are brought to Mr. Bull, and it is further your testimony that Mr. Bull has administered and used his discretion in a wise, fair and equitable manner? Is that correct?

‘A I don't accuse Mr. Bull of discrimination; no, sir.’

The Court finds no support for the charge that the requirement of documentation of residence is being applied in a discriminatory fashion.

*214 In connection with the charge of discrimination, one other contention is made. In Orleans Parish, as well as in the rest of Louisiana and much of the South, there exists, especially on the local level, a virtual one-party system, so that ‘nomination is tantamount to election’. In most instances, then, an effective ballot is cast only if the elector votes in the Democratic primary. And to vote in a party primary, an elector must declare his affiliation with that party.¹⁶ The contention is made, with regard to the illiterate Negroes who have been allowed to register since the passage of the Voting Rights Act,¹⁷ that they are being duped into affiliating with some party other than the Democratic one. The registration form has a line on which the registrant can choose as his affiliation ‘Democrat’, ‘Republican’, ‘States Rights', ‘None’, or ‘Other’. The charge is that against the express response of the applicants or without having asked them, deputy registrars have marked something other than ‘Democrat’, usually ‘States Rights', or have left the question blank, and thereby effectively disenfranchised the registrants.

There was offered two types of proof for this point, first testimony of three witnesses, and second, the tabulation of the choices of party affiliation made by both illiterate and literate Negroes.

The study of the registration records as to choice of party affiliation showed that the registrants made the following choices; the table also expresses the number of registrants making a particular choice as a per cent (rounded to the nearest whole number) of the total of that class registered in the period in question.

The tabulation is inconclusive. Plaintiffs' counsel contends it shows that illiterate Negroes were duped; on the contrary, just as valid an assumption is that the illiterates are not as intelligent or conversant with political affairs as the *215 literates, and, thereby, a higher percentage made the ‘wrong’ choice by affiliating with the ‘rights' party. Almost one-fourth of the literate Negroes did not choose ‘Democrat’; the fact that 35% Of the illiterates did likewise is not conclusive. At most, the tabulation alerts the Court to possible injustice, but without a credible showing that those whose cards indicate they did not choose ‘Democrat’ were either not asked the question or expressed some other preference, the Court cannot find that injustice was done. A ruse such as that alleged would be an insidious method for disenfranchising illiterates, and the Court would be quick to strike it down. But the tabulation and the inherently self-contradictory testimony of the witnesses does not outweigh the testimony of the Registrar and deputy registrar, who appeared candid and sincere to the Court.

In connection with this, plaintiffs' counsel makes much of the fact that the questions were left blank on many of the illiterates' cards. A deputy registrar testified that she left it blank rather than circling ‘None’ when the applicant showed no comprehension or interest in the question. The court fails to see any practical difference between a blank and ‘None’ despite the urging of plaintiffs' counsel that a blank is many times more terrible an injustice.

II. SLOW-DOWN

The second charge has several facets. One of the elements of this slow-down charge is an allegation that any requirement of proof of residence for the statutory period is unlawful.¹⁹ Because Article 8, Section 1(e) of the Louisiana Constitution specifically states that an applicant for registration must be able to prove his identity,²⁰ plaintiffs claim that any requirement that an applicant prove any other qualifications is unlawful.

Plaintiffs allege that to do so impinges on the essential dignity of man in that it impliedly indicates mistrust of the sworn affidavit of the applicant. The Court is aware that the protection of the Bill of Rights has been extended to areas which are not specifically within its wording, but which are within its penumbra.²² But this Court is not going to be so naive as to state that in the important affairs of life, among them voting, the sworn statement of the person asserting a right or possible right must be accepted. The standard jury instruction this Court gives in all jury cases mentions, in connection with the credibility of the witnesses, that the fact that a witness is under oath does not mean that his word must be accepted, ‘for anyone can lie if he has the will to do so.’ Based on the simple reality that people will perjure themselves, there is a valid reason for requiring proof of qualifications in all affairs of life. A man's rights are valuable only insofar as they are protected. One of the ways to do this is by careful scrutiny of those who assert those rights, to insure that the assertor is indeed entitled to them, lest the rights of the true owner be diluted by the claim of the fraud. An honest man does not resent this. He realizes that the small inconvenience or ‘indignity’ he suffers by not having his statement accepted at face value is far outweighed by the protection he gets from the faker who might come in unchallenged. Part of the right to vote is the right not to have your vote diluted by the vote of those who are unqualified. To be asked to prove his qualifications for voting does not degrade a man and rob him of his dignity. Rather, it protects the very right he is seeking to assert.

Plaintiffs' counsel would have the court limit the remedy for false swearing to criminal penalties.²³ The fact that the applicant who gives false statements may later be subject to criminal penalties does not remedy the harm resulting from the tabulation of illegal ballots. Based on the above reasoning this court concludes that reasonable requests of proof of qualifications to vote are neither unlawful nor repugnant.

Congress undoubtedly meant this ban on ‘vouching’ to hit at the requirement in some states that identity be proven by the voucher of two registered voters, which, where all or a large majority of the registered voters are white, minimizes the possibility of a Negro registering.²⁷ This court is not going to extend Congress' use of the language ‘voucher of members of any other class' to proof of residence that can be accomplished by a variety of documents.

Thus, as there is no showing of impropriety in the requirement of documentation of residence, this Court will not order its discontinuation as long as a pattern of discrimination does not develop under it. We are not at liberty to impose our concept of administration on the Registrar²⁹ and, absent a showing of impropriety in the registration process, any changes ordered by this Court would be just that.

Louisiana law³⁰ provides for twenty-five deputy registrars in Orleans Parish, plus such temporary deputies as may be necessary. At present, due to budgetary limitations and Civil Service regulations, there are 22 deputy registrars. Vacations *218 and sickness reduce the complement available in any given week.³¹ The Court feels that the Registrar is aware of his responsibilities and that he has assembled a staff sufficient to meet the needs of the people his office serves. There is no evidence, in the record or elsewhere, that would indicate bad faith or a deliberate slow-down on the part of the Registrar. This Court will not take over the functions of the Registrar with respect to management of personnel unless it is proven necessary that it do so.

III. FREEZE-OUT

The third charge alleges that the ‘freeze-out’ doctrine bans the requirement of proof of residence, even if that requirement is fairly applied and otherwise permissible. The Registrar took office in 1961. By his own testimony, he initiated some changes in office administration and procedure shortly after beginning his duties. One of these changes, purportedly to curb abuses previously existent, was to tighten up the requirements for proof of residence.

The freeze-out doctrine, as enunciated by the Fifth Circuit³² and recently applied by the Supreme Court in Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965), directs that where a state, because of past discriminatory practices, has registered a large proportion of its white citizens but only a small proportion of its Negro citizens, that state cannot then put into effect a more stringent qualification for voting. The reason for this is that the higher standard would, of course, keep many of the unregistered citizens from qualifying to vote. These unregistered persons would necessarily be mainly Negroes. Therefore, even if the new qualifications were completely fair and applied fairly, they would operate in a discriminatory manner because of past faults.

Therefore, it is ordered that the motion of plaintiffs A. L. Davis, et al., for a preliminary injunction be, and the same is hereby, denied.