Federal Litigation

Plaintiff, the United States of America, has an interest andobligation broader than that of any other individual litigant, whichshould be taken into account in giving effect to the broadremedial purposes of the Civil Rights Act of 1957. 1

In the fall of 1959, when this Commission submitted its first report,

litigation instituted by the Federal Government under the Civil RightsAct of 1957 was in a discouraging posture. Three cases had been filedand two had been decided, both unfavorably. The Federal DistrictCourt for the Middle District of Georgia had held the act unconstitutional in the Raines case, 2 and the Federal District Court for the MiddleDistrict of Alabama had dismissed a case 3 because the registrars who hadcommitted the alleged discrimination had resigned. The court heldthat the State of Alabama could not be added as the defendant. TheCommission could only note that the provisions of the act had not beenfully tested.

In the succeeding 2-year period, Federal litigation to protect theright to vote has been more decisive. Doubts as to various constitutionalissues have been resolved in favor of the 1957 act; litigation under theact has been successful in eliminating some discrimination and discouraging economic reprisals against those exercising their voting rights; andportions of the 1960 Civil Rights Act have been effectively utilized.

Passage of the latter was an event of major importance. As indicatedin the preceding chapter, 4 its voting referee provision permits the appointment of a Federal voting referee, after a court has found a "pattern orpractice" of racial discrimination, to secure the registration of all qualified persons within the group and area affected. It also allows the Stateto be made a defendant2014particularly useful in cases where the registrarresigns. And title III of the new act further assists enforcement of voting rights by requiring registration records to be preserved for at least22 months and to be made available to the Attorney General upon request for inspection, reproduction, and copying.

Cases brought by the Civil Rights Division during the 2 years sincethe Commission's last report fall into three categories: (i ) suits filed under subsection (a) and (c) of 42 U.S.C. section 1971,° to enjoin conduct

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which deprives persons of the right to vote because of race or color.(This category includes procedures for the appointment of Federal voting referees, pursuant to title VI of the 1960 act.) 6 ..(2 ) Suits filedunder subsection (b) of 42 U.S.C. 1971 to enjoin threats, intimidation,and coercion of persons exercising their right to vote in elections of Federal officers. 7 (3) Suits filed pursuant to section 305 of the 1960 actto enforce demands of the Attorney General for Federal election records. 8

THE COURTS DISAGREE

Soon after the first suits were filed under the Civil Rights Act of 1957,a sharp difference of opinion arose between Federal district courts onwhether the 15th amendment authorized the act.

The first suit was United States v. Raines, filed on September 4, 1958,in the U.S. District Court for the Middle District of Georgia. 9 Sevenmonths after it was brought, Chief Judge Davis dismissed the suit saying that the 1957 act was not appropriate legislation to enforce the i5thamendment. 10 He concluded that Congress had acted beyond its jurisdiction when it authorized the Attorney General to institute a civilaction for preventive relief when "any person has engaged or there arereasonable grounds to believe that any person is about to engage in anyact or practice which would deprive any other person of any right orprivilege secured by subsections (a) or (b) [of this section]." "

Judge Davis ruled that the act's language applied to private citizens,"and is not limited to State action." 12 Because the I5th amendmentdoes not empower Congress to control the actions of private citizens,the act, he reasoned, must be unconstitutional. Judge Davis dismissedthe Government's contention that State officials could not raise the question of the act's application to private persons. He said, ". . . it is notfor this court to decide whether this particular fish is properly within thenet, but whether the net is so large as to catch many fish not properlywithin it." 13

From April 1959, when the Raines case was dismissed, until the U.S.

Supreme Court reversed the decision in February 1960, the constitutionality of the 1957 act was in doubt. A hopeful sign came in thecase of United States v. McElveen^ the third suit filed under the 1957act. 15 The defendants in this case were the registrar of voters for Washington Parish, La., and members of the Citizens' Council of WashingtonParish.

Like the registrars in Raines, the defendants in McElveen moved todismiss the complaint on the ground that the act of 1957 was unconsti- 80

tutional in scope, covering private individuals as well as public officialsand persons acting under color of law. On October 7, 1959, Judge J.Skelly Wright denied the motion to dismiss and upheld the constitutionality of the statute. At the outset of his opinion, he stated: 16

The defendants' contention is so obviously without merit that this

court would merely deny the motion to dismiss without more wereit not for the fact that a District Court has upheld a similar contention and declared Section 1971 (c) unconstitutional. In so doing,that Court ignored the most elementary principles of statutoryconstruction, as repeatedly announced by the Supreme Court, andrelied on an old case interpreting a criminal statute.

Construing section 1971 (a), (b),and (c) together, Judge Wright hadno difficulty finding a congressional intention to limit the statute to theconfines of the 15th amendment: 17

No court is authorized to assume that Congress, in enacting this

legislation, was ignorant of the uniform jurisprudence of the Supreme Court on the subject. In fact, it is a cardinal rule of statutoryconstruction that such jurisprudence may serve as a guide tointerpretation.

Finally, Judge Wright noted that the defendants in the McElveen casewere admittedly acting under color of law and consequently were notproper parties to raise a question of the act's application to strictlyprivate actions. 18

The reasoning of McElveen prevailed. In February of 1960, when

the Raines case reached the Supreme Court, the Court sustained theconstitutionality of the 1957 act: 19

The District Court seems to us to have recognized that the complaint clearly charged a violation of the Fifteenth Amendment andof the statute, and that the statute, if applicable only to this class ofcases, would unquestionably be valid legislation under that amendment. We think that under the rules we have stated, that courtshould then have gone no further and should have upheld the Actas applied in the present action, and that its dismissal of the complaint was error.

The second suit brought under the 1957 act was United States v. Stateof Alabama, 20 where the defendant-registrars of Macon County, Ala.,charged with racial discrimination, had resigned their office before suitwas filed. The United States amended its original complaint to jointhe State of Alabama as a defendant. The registrars and the State both

challenged the right of the United States to bring suit against them, andon March 6, 1959, Judge Johnson of the U.S. District Court for theMiddle District of Alabama dismissed the suit. 21 He said that the individual defendants, having resigned their office as registrars of MaconCounty, could not und^r Alabama law be sued as registrars. He alsoheld that the board of registrars itself was not a suable entity. As for theattempt to add the State of Alabama as a defendant, the court concluded that the State was not a "person" within the intendment of theact: 22

A reading of the legislative history of this Act impresses this court

with the fact that if it had then been mentioned that this Actauthorized the United States to sue a State for preventive relief,the Act would not yet be passed.

The district court's decision was affirmed by the Court of Appealsfor the Fifth Circuit. 28 The Supreme Court heard argument on the caseon May 2, 1960. Four days later the Civil Rights Act of 1960 becamelaw. In view of its provision expressly authorizing the Attorney Generalto make the State a defendant, the Supreme Court vacated the judgments of the court of appeals and the district court and remanded thecase with instructions to reinstate the State of Alabama as a partydefendant. 24

While the Raines and Alabama cases awaited disposition on appeal,

the McElveen case, involving Washington Parish, La., came to a finaldetermination by the Federal district court. Louisiana registration lawsprovided that any two registered voters may officially challenge anothervoter's registration, and the law requires the registrar upon request toissue a citation. It then becomes the duty of the person challenged toprove the correctness of his registration; 25 if he does not respond withinthe prescribed time, the registrar must erase his name from the rolls. 24

Members of the Citizens Council had started to make a wholesale examination of the registration records of Washington Parish in the spring of1959, and the registrar had sued in a State court to enjoin them fromdoing so. The State court upheld the right of the defendants (most ofwhom were also defendants in the subsequent Federal suit) to examinethe rolls. 28

Shortly thereafter, the U.S. Attorney General filed suit under section

1971 (a) and (c) to enjoin the purge, which was directed against Negrovoters (they accounted for 99 percent of those challenged). On January n, 1960, the court granted a temporary injunction and found,among other things, that: 27 2014

In examining the Washington Parish registration records forthe purpose of filing the said Affidavits of Challenge, the individualdefendants limited their examination almost exclusively to the regis-82

tration...