# Albert C. Toney v. N. A. White, United States of America v. Myrtis Bishop

> Court of Appeals for the Fifth Circuit · December 3, 1973 · 488 F.2d 310

URL: https://www.frixlaw.com/law-library/cases/9460078

## Case

- **Full name:** Albert C. TONEY Et Al., Plaintiffs-Appellees, v. N. A. WHITE Et Al., Defendants-Appellants; UNITED STATES of America, Plaintiff-Appellee, v. Myrtis BISHOP Et Al., Defendants-Appellants
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** December 3, 1973
- **Citations:** 488 F.2d 310; 1973 U.S. App. LEXIS 6727
- **Precedential status:** Published
- **Opinion:** Concurrence by Coleman
- **Judges:** Brown, Wisdom, Gewin, Bell, Thorn-Berry, Coleman, Goldberg, Ainsworth, Godbold, Dyer, Simpson, Morgan, Clark, Roney, Gee
- **Cited by:** 76 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9460078

## How later opinions describe it (automated extraction)

- affirming that a violation of § 2 occurred when white voters were not purged from absentee voter rolls in conjunction with the zealous purging of the black voter rolls
- finding Section 2 violation where voting registrar purged black voters for nonvoting but did not drop similarly situated white voters; although there was no discriminatory purpose, net result was discriminatory

## Opinion text

COLEMAN, Circuit Judge
(concurring in the result):
Even for an election controversy, this is an unusual case. The District Court held the municipal primary election in Tallulah, Louisiana, to have been a lawful one as to the nominee for Town Marshal but void as to all nominees for other offices. This on its face is a non se-quitur. I assume the en banc Court did not mean to affirm that aspect of the judgment below.
Leaving that aside, I do not see that the en banc opinion does any harm to basic legal principles. Most assuredly it reaches a harmless result, so I concur in the result.
The opinion scrupulously avoids any appearance of denigrating the unassailable principle that pre-election grievances allegedly fatal to the validity of an entire election must promptly be asserted if they are to furnish the catalyst by which that election is to be set aside. Any other rule would make a shambles of the highly esteemed right of franchise and would consequently reduce the lofty language of Yick Wo v. Hopkins to a cynicism. So, I heartly agree with the declaration of the en banc opinion that “citizens having grievances may not lay by to see how the election will turn out before complaining”. At least, it is fortunate that this principle is not to be sacrificed upon the altar of political dissensions existing in one small city in a six state Circuit.
It appears that the sole precedential impact of the decision is to be found in its elaboration upon where the burden of proof lies in cases involving a “lay by”. I doubt that the record appropriately raises this question for our review. If it does, then I would hold that a “lay by” clearly appears from the evidence. It was an undisputable fact that the Registrar pursued a purge not permitted by Louisiana law. Notice appeared in the public press. No more than minimal diligence could have been required to obtain an order in either the state or the federal courts nullifying a purge which was per se illegal. It is equally clear that the objectors waited until they could see how the election came out. Losing by a very narrow margin, they then rushed, as usual, to the federal courthouse. Such maneuvers ought to be discouraged.
In any event, the en banc opinion concludes with the only sensible solution reasonably available at the eleventh hour and fifty-ninth minute — a solution which inevitably would have occurred by operation of law if this case had never been docketed.
Therefore, I concur in the result.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9460078. Public record. Not legal advice.