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GASTON CTY. v. UNITED STATES

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


August 16, 1968

GASTON COUNTY, a political subdivision of the State of North Carolina, Gastonia, North Carolina, Plaintiff,
v.
UNITED STATES of America, Defendant

The opinion of the court was delivered by: WRIGHT

J. SKELLY WRIGHT, Circuit Judge:

Gaston County, North Carolina, brought this action pursuant to Section 4(a) of the Voting Rights Act of 1965, 42 U.S.C. §§ 1973 et seq. (Supp. II 1965-66), seeking a declaratory judgment that, during the past five years, no "test or device" within the meaning of the Act has been used in Gaston County for the purpose or with the effect of denying or abridging the right to register to vote or to vote on account of race or color. Although several other counties and one state covered by the Act have instituted similar actions, *fn1" this is the first case that has proceeded to trial. Since we are thus presented with a case of first impression as to the application of what has been described as the heart of the Act, we think it desirable, if not necessary, to elaborate in some detail upon our findings, which lead us to conclude that Gaston County is not entitled to the relief requested.

 I

 The effect of Section 4(a) of the Voting Rights Act *fn2" is to suspend the use of tests or devices prescribed by state law as a prerequisite to voting or registering to vote in those states or political subdivisions thereof that are included within Section 4(b)'s coverage formula. Under Section 4(c) the Attorney General designates those states or political subdivisions that on November 1, 1964, employed as a prerequisite to voting a "test or device," which includes "any requirement that a person * * * (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." 42 U.S.C. § 1973b(c). Also under Section 4(b) the Director of the Census certifies any state or political subdivision in which the percentage of persons registered to vote, or who did in fact vote, in the presidential election of November 1964 is less than 50 per cent of the persons of voting age residing in the relevant area. Neither the determination by the Attorney General nor that by the Director of the Census is subject to judicial review. When a state or political subdivision is certified by both the Attorney General and the Director of the Census, it is listed in the Federal Register. Suspension of any test or device in that state or political subdivision is then automatic and immediate.

 A state or political subdivision with respect to which the appropriate determinations have been made may wish to terminate the suspension of its test or device. Accordingly, the Act provides that it may bring suit for a declaratory judgment against the United States in this court, *fn3" which is directed to be convened as a three-judge court. The requested relief will be granted, thereby permitting the state or subdivision to reinstate its test or device, if the court determines that no such "test or device" has been used anywhere in the territory of that state or subdivision during the five years preceding the filing of the action "for the purpose or with the effect of denying or abridging the right to vote on account of race or color." The state or subdivision bears the burden of proof, but the burden is not an unreasonable one since evidence that a state or political subdivision has engaged in the use of tests or devices for the purpose or with the effect of denying or abridging the right to vote on account of race or color does not preclude reinstatement of the tests or devices if "(1) incidents of such use have been few in number and have been promptly and effectively corrected by State or local action, (2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable probability of their recurrence in the future." *fn4" 42 U.S.C. § 1973b(d).

 Since the underlying policy and constitutionality of the Voting Rights Act of 1965 in general and Section 4 in particular have been sufficiently explored elsewhere, *fn5" a detailed account of the Act's legislative history need not be recited here. Suffice it to say that Congress conducted exhaustive hearings which established quite clearly that the evils Congress tried to eliminate by its enactment of the Civil Rights Acts of 1957, 1960 and 1964 continued unabated in 1965, albeit perhaps in different forms. On the basis of these hearings, Congress concluded that the remedies it had previously provided - principally creating causes of action and authorizing standing to sue - were insufficient to rectify the situation and that it was necessary to depart from the use of the judicial process as the primary means of enforcing Fifteenth Amendment rights. Accordingly, Congress made its own findings of fact and from these findings it drew a logical inference - that is, the coexistence of low registration or voting and a test or device implied that the test or device was discriminatory in purpose or effect. Section 4(b)'s provisions defining those areas to be covered by the Act embody this presumption of discrimination.

 II

 Suit was filed in the present case on August 18, 1966, and the trial was held on June 21 and 22, 1967. Certain issues were disposed of by a pretrial stipulation of the parties. Thus it is uncontested that Gaston County, North Carolina, is a political subdivision of the State of North Carolina, that it is divided into 43 election precincts, and that in each precinct there is a registrar of voters who is appointed by, and an employee of, the Gaston County Board of Elections, which board is responsible for the administration of the elective processes. *fn6" Article VI, Section 4, of the Constitution of North Carolina and Section 163-28 of the North Carolina General Statutes provide that "[every] person presenting himself for registration shall be able to read and write any section of the Constitution of North Carolina into the English language"; Section 163-28 further provides that "[it] shall be the duty of each registrar to administer the provisions of this section." The Attorney General of the United States determined that a test or device within the meaning of Section 4(c) of the Voting Rights Act of 1965 was maintained in Gaston County on November 1, 1964. The Director of the Census determined that fewer than 50 per cent of the persons of voting age residing in Gaston County voted in the presidential election of November 1964. These determinations were published in the Federal Register on March 29, 1966. 31 Fed.Reg. 5080-5081.

 It is also agreed that in April 1962 the County Board of Elections, pursuant to North Carolina law, adopted a new system of voter registration, known as a permanent loose-leaf system, which required a general reregistration of all voters in Gaston County. Consequently, all persons now eligible to vote have been registered during or since April 1962, so that although the relevant period for purposes of this suit would ordinarily be five years preceding the filing of the action, or from August 18, 1961, we need only concern ourselves with registration activities since April 1962. Finally, the parties have agreed that from April 1962 to the effective date of the Civil Rights Act of 1964 oral literacy tests were used by the registrars, that such tests were replaced by written tests after that date, and that since March 29, 1966, the date on which Gaston County was listed in the Federal Register, literacy tests have not been used in Gaston County.

 During the course of the trial, Gaston County presented six witnesses and the depositions of 13 additional witnesses, and introduced into evidence numerous exhibits. The thrust of the accumulated evidence was to show the impartial implementation of the new registration system. Thus there is credible evidence to establish that in April 1962 the number of voting precincts was increased for the convenience of the voters from 35 to 43; that the registration books have been kept open at the principal office of the County Board of Elections from 8:30 A.M. to 5:00 P.M., Monday through Friday; *fn7" and that registrars have been authorized - indeed encouraged *fn8" - to be available to register any qualified person at any reasonable hour each day of the week and, in addition, to be at the precinct voting place on designated Saturdays throughout the registration period. *fn9"

 Additional evidence establishes that the adoption of the new system received considerable publicity through the mass media. Newspaper advertisements, radio announcements and placards explained the mechanics of the new system, the need for registration and the names and addresses of registrars for all of the precincts. These efforts, which were utilized with some success in the April 1962 registration campaign, were repeated in 1964 prior to the general election and were in fact enlarged to include letters distributed to the schoolchildren urging their parents to register to vote.

 Plaintiff's evidence also established that these publicity efforts were fairly directed to all persons residing in the county, regardless of race or color, and that special conferences were held with Negro leaders for the specific purpose of obtaining their assistance in informing Negro citizens of where and when to register. Indeed, three of the five commissioners (or so-called deputy registrars) appointed during the April 1962 registration campaign to assist in registration were Negroes. Moreover, there is no evidence that any registrar or member of the Board of Elections advised any Negro that he would be refused registration because of his race. It also appears that the Board of Elections did not receive any complaints from any Negro citizen that he had been denied his right to register because of a test or device.

 In its post-trial brief, plaintiff contends that, given the above, it has satisfied its burden of proof and is therefore entitled to a declaratory judgment that no test or device has been used for a period of five years preceding the filing of this action for the purpose or with the effect of denying or abridging the right to vote on account of race or color. Indeed, as plaintiff correctly points out, the Supreme Court, in interpreting the burden placed upon a plaintiff in a Section 4 case, has commented that the state or political subdivision "need do no more than submit affidavits from voting officials, asserting that they have not been guilty of racial discrimination through the use of tests and devices during the past five years * * *." State of South Carolina v. Katzenbach, 383 U.S. 301, 332, 86 S. Ct. 803, 820, 15 L. Ed. 2d 769 (1966).

 But the Supreme Court does not stop there and neither can we. The statement quoted above continues: "and then refute whatever evidence to the contrary may be adduced by the Federal Government." Ibid. Accordingly, we must consider the evidence introduced and the arguments presented by the United States, bearing in mind the critical words of Section 4: "no such test or device has been used * * * for the purpose or with the effect of denying or abridging the right to vote on account of race or color."

 III

 The United States attempted to establish that the literacy test in Gaston County was used both "for the purpose" and "with the effect" of denying or abridging the right to register to vote on account of race or color. With respect to the former standard - "for the purpose" - the United States submitted the depositions of 29 illiterate or nearly illiterate whites who testified that they were registered to vote without being required to demonstrate their literacy; indeed, 15 of these people testified that they affirmatively told the registrar that they could not read or write. In addition, the United States submitted a notebook of registration forms which indicates that the 29 persons mentioned above were not the only whites who were permitted to register although they were incapable of satisfying the literacy requirements of North Carolina law.

 The United States seemingly admits that this waiver of the literacy requirement which resulted in the registration of a few whites, standing alone, does not necessarily establish that the literacy test was used in Gaston County for the purpose of denying or abridging the right to vote on account of race or color. The United States asserts, however, that this policy of waiver was not made public *fn10" so that Negroes justifiably believed that they would either be required to demonstrate literacy to the satisfaction of the registrar or be embarrassed by being turned away. To support this argument, the United States reminded this court of the purpose for which the literacy test was first adopted in North Carolina and the manner in which it has been applied since its inception. *fn11" The United States also introduced evidence showing that during the past five years Negro leaders refrained from encouraging illiterate Negroes to attempt to register and that several Negroes who did attempt to register were rejected because of their inability to read or write.

 To rebut the Government's evidence and its inferences, Gaston County relies primarily upon the depositions of ten illiterate or nearly illiterate Negroes who were registered despite their admitted inability to comply with North Carolina's literacy requirement. In addition, Gaston County argues that even if the literacy test was used for the purpose of denying or abridging the right to register to vote on account of race or color, incidents of such use have been few in number so as to fall within the exception clause of Section 4(d). Insofar as we are here concerned with that language of the Act which speaks of purposeful discrimination, we must agree that the Gaston County Board of Elections has made commendable efforts to promote registration of all citizens residing in that county, irrespective of race or color. For the reasons hereinafter stated, however, we find it unnecessary to determine whether purposeful discrimination within the meaning of Section 4(a) has been practiced in Gaston County since April 1962.

 IV

 Before proceeding to a discussion of the evidence adduced by the United States tending to show that the literacy test was used in Gaston County "with the effect" of abridging the right to register to vote on account of race or color, we believe it expedient to consider another argument of the United States based on the same evidence which was relied upon to establish purposeful discrimination. We refer now to the Government's contention that termination of the suspension of the literacy test in Gaston County would run afoul of Section 101(a) of the Civil Rights Act of 1964, 42 U.S.C. § 1971(a)(2)(A) (Supp. II 1965-66). That section provides that, in determining whether an individual is qualified under state law to vote in any federal election, no person acting under color of law may apply any standard different from or more stringent than the standards which have been applied under such law to other individuals within the political subdivision who have been found qualified to vote. The United States argues that, according to this section, Gaston County may not deny registration to any person on the ground of illiteracy, irrespective of whether or not there has been racial discrimination, so long as illiterates remain on the registration rolls.

  It is true that the chairman of the Gaston County Board of Elections testified that he believed that if the literacy test were reinstated the registrars would be bound by North Carolina law to enforce the letter and spirit of the state's literacy requirement. Moreover, he testified that he did not envision either a general reregistration of voters or a purging of illiterates so that if illiterates are presently registered, they will remain eligible to vote. Since there is evidence that in the past illiterates have been permitted to register, we could simply find that, unless the registration rolls are purged of all illiterates, Gaston County cannot, under Section 101(a) of the Civil Rights Act of 1964, reinstate its literacy test. However, since on the record before us we find that the literacy test has been used in Gaston County during the five years preceding the filing of this action "with the effect" of abridging the right to register to vote on account of race or color, we shall not rest on a theory which would be rendered irrelevant if the Gagston County Board of Elections were to decide to purge its rolls.

 Moreover, during the hearings on the Voting Rights Act of 1965 before the Judiciary Committee of the House of Representatives, the Attorney General of the United States testified that suspending literacy tests was a more desirable approach than requiring a complete reregistration of all voters. He explained his position as follows:

 

"To subject every citizen to a higher literacy standard would, inevitably, work unfairly against Negroes - Negroes who have for decades been systematically denied educational opportunity available to the white population.

 

"Such an impact would produce a real constitutional irony - that years of violation of the 14th amendment right of equal protection through equal education would become the excuse for continuing violation of the 15th amendment right to vote." *fn12"

 We believe that this statement goes to the heart of the problem we face today, particularly if reinstatement of the literacy tests were permitted, and requires us to find that, within the intendment of the Act, *fn13" the literacy test in Gaston County has been used with the effect of abridging the right to register to vote on account of race or color.

 V

 The Supreme Court of North Carolina described the state statute requiring a demonstration of literacy as a prerequisite to registering to vote in these words:

 

"* * * It demands more than the mere ability to write one's own name and to recognize and read a few simple words. * * * The standard or level of performance is the North Carolina Constitution. To be entitled to register as an elector one must be able to read and write any section thereof. Admittedly, the standard is relatively high, even after more than a half century of free public schools and universal education. * * *" Bazemore v. Bertie County Board of Elections, 254 N.C. 398, 119 S.E.2d 637, 641 (1961).

 If the standard is relatively high "even after more than a half century of free public schools," it must be much more difficult to attain for a person who has been denied the full benefits of such "universal education."

 During the entire period when the persons presently of voting age were of school age, the schools in Gaston County were segregated; indeed, those schools remained totally segregated until 1965, when token integration was begun. *fn14" And not only were the schools segregated - thereby bringing into play the holding of Brown v. Board of Education, 347 U.S. 483, 495, 74 S. Ct. 686, 692, 98 L. Ed. 873 (1954), that "[separate] educational facilities are inherently unequal" - but it appears that the Negro facilities have in fact been of appreciably inferior quality. The United States introduced evidence which indicates the difference between white and Negro education in Gaston County. n15 The evidence is admittedly fragmentary in nature, but the conclusion is inescapable that proportionately less money has been spent on Negro education than on white. For example, the following chart shows the average annual salary for a white and a Negro school teacher for the years indicated: n16 YEAR WHITE NEGRO 1908-09 $ 225.28 $ 91.17 1918-19 n17 566.90 113.64 1928-29 1,053.04 508.52 1938-39 933.97 681.07 1948-49 2,331.01 2,324.91

19680816

© 1992-2004 VersusLaw Inc.



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