# 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/9460079

## 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 Gee
- **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/9460079

## 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

GEE, Circuit Judge
(concurring in the result):
I concur in the result reached by the Court but would go by another way. To me, the record presents overwhelming *317 evidence of a selective application of state law, done out of time and when relief could not be had, to deprive sufficient Negro voters of their franchises to have affected the election results. I find this gross, spectacular and completely indefensible and would proceed upon that established ground. 1 I also agree that, the next regular election impending so nearly, a special election should not now be called in this troubled parish to fill terms which could not exceed a few months.
The majority opinion is cogent and persuasive, yet it seems to me necessarily to rest upon reasoning that, though no intent to discriminate existed, and although the state laws applied are colorblind and valid, yet where their application produces an unequal disenfranchisement between the races, the Constitution is offended. It is true, as the opinion notes, that the purge of voter lists was carried out at an illegal time, but I do not read this as significant to the rationale of the majority opinion.
In such a context as this, we are on sound footing when we admit extreme statistics as evidence of intent to discriminate. But where, as here, we leave undisturbed a specific finding of want of discriminatory intent and proceed on the effect alone of what was done, I fear we are planting dragon’s teeth. For the most punctiliously even-handed and col- or-blind culling of voter lists may — indeed very nearly must — have a disproportionate effect on one segment or another of the electorate. I can find no footing on this logical precipice except at the top or at the bottom; either a discriminatory intent was present or it was not. If it was not, as the majority says is the case here, I am unable to grasp the constitutional offense. It is well to say, and noble, too, that thoughtlessness can be as disastrous to private rights as willful schemes. But the Constitution does not adopt all noble thoughts, and I am not persuaded that it has adopted the concept that unintentional “discrimination” is offensive. Discrimination — in the sense of disproportionate effect — there will be. What we seek is that, when it occurs, it will be just that: unintentional.
. See the discussion of Hadnott v. Amos, 394 U.S. 358 , 89 S.Ct. 1101 , 22 L.Ed.2d 336 (1969) and United States v. The Democratic Executive Committee of Barbour County, 288 F.Supp. 943 (M.D.Ala.1968), in the panel opinion herein. 476 F.2d, at 210-211.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9460079. Public record. Not legal advice.