The opinion
WEST, District Judge
(concurring in part and dissenting in part).
I concur with the majority opinion on all except two issues involved in this case. As incredible as it may seem, the Congress has, by the Voting Rights Act of 1965, provided for the registration by Federal Registrars in a certain few selected states, of persons who are completely illiterate and who are unable to read, write, or even sign their names. This, despite specific state voting laws to the contrary. And as incredible as it may seem, the United States Supreme Court, in State of South Carolina v. Katzenbach, 383 U.S. 301 , 86 S.Ct. 803 , 15 L.Ed.2d 769 , has held this law to be constitutional. Thus, this Court being bound by the Supreme Court pronouncements on this subject, must hold, as the majority opinion does, that the provisions of the Voting Rights Act of 1965 dealing with the registration of voters without the use of a state imposed test or device, must be abided by by the State of Louisiana and its agents. With this conclusion I must agree. But it is my appreciation of the law that only those provisions of state law that are in conflict with the provisions of the Voting Rights Act may be held by this Court to be unenforceable. I must, therefore, respectfully dissent from the majority opinion wherein it enjoins the defendants and their agents, including parish registrars of voters, and all parish, municipal, and state primary and general election officials and their officers, employees, and successors, from “[fjailing to provide at the polls during each federal, state, parish, and municipal election held in the State of Louisiana, including all primary elections, assistance to each voter who, because of inability to read or write, needs assistance in the operation of any mechanical voting device or in marking his ballot so that his vote be properly cast for the candidates and issues of his choice.” This part of the Court’s order is in direct conflict with Louisiana laws which have not been shown to be in conflict with the Voting Rights Act. In support of this part of its order, the majority opinion states:
“In granting the relief prayed for we have ordered election commissioners to give assistance to voters who are unable to read and write. Louisiana now allows and has always allowed illiterates to vote. Until 1960 Louisiana law provided that a voter ‘unable to read and write, shall receive the assistance of a commissioner of his own selection in the marking of his ballot’. LSA-R.S. 18:350. In 1960, as one of a bundle of segregation statutes, the Louisiana legislature enacted Act 499 amending Section 350. This amendment provides, in part, ‘The inability to read or write shall not entitle a voter to assistance in the casting of his vote’.”
This statement by the majority is simply not accurate. Whether or not Louisiana “now allows and has always allowed illiterates to vote” is highly questionable. But there is simply no doubt that the Louisiana Legislature did not in 1960, “as one of a bundle of segregation statutes” amend the law to provide that “[tjhe inability to read or write shall not entitle a voter to assistance in the casting of his vote.” This has been the law of Louisiana for many, many years, and it was not changed by the Louisiana Legislature in 1960. Act 309 of 1952 specifically provided:
“The inability to read or write shall not entitle a voter to assistance in the casting of his vote.”
This Act of 1952 provided, among other things, for assistance for blind persons or those with physical handicaps, but as noted above, it specifically denied such assistance to those unable to read or write. Act 199 of 1960, referred to in the majority opinion as “one of a *711 bundle of segregation statutes,” contains the exact language as found in the 1952 Act, namely: “The inability to read or write shall not entitle a voter to assistance in the casting of his vote.”
Prior to the 1960 Act, a blind person, or one with a physical handicap, could call upon a commissioner to assist him in casting his vote. The only change that the 1960 Act made was to provide that such a handicapped person could not select a commissioner to assist him in easting his vote, but could select certain other designated persons to render him such assistance. Thus, it is obvious that the 1960 statute referred to was not “one of a bundle of segregation statutes,” nor did it change the long standing law of Louisiana insofar as assistance to illiterates is concerned. Louisiana, by law, has refused such assistance to those unable to read and write at least since 1952, a time which predates the flood of civil rights litigation triggered by Brown, et al. v. Board of Education of Topeka, et al., 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 , decided in 1954. Indeed, it is highly doubtful that even as far back as 1940, a voter, because of illiteracy, was entitled, under Louisiana law, to assistance in actually casting his vote. See Act 46 of 1940. Thus, the disputed provision of Louisiana law can hardly be looked upon as something inspired by the civil rights controversies of the past decade.
There is no provision in the Voting Rights Act for granting such assistance to those unable to read or write, and thus, the disputed provision of Louisiana law is in no way in conflict with any provision of the Voting Rights Act. It must be remembered that we are not talking about a few scattered illiterates. Illiterates by the thousands have now been registered in Louisiana under the provisions of the Voting Rights Act. To require Louisiana officials to grant such assistance to illiterates is tantamount to destroying, in large measure, the secrecy of the ballot contrary to the laws of Louisiana. It also seems to me that the majority’s order could be likened to ordering a school or university not only to enroll certain designated persons as students, but in addition thereto, to assist those students in the taking of their final examinations. Such an order, I like to believe, would be unthinkable. The avowed purpose of the Voting Rights Act was to eliminate discrimination in the exercise of the franchise. The elimination of the use of tests and devices as a means of testing voter qualifications and the' use of Federal Registrars to actually register prospective voters, without regard to state imposed qualifications, has, I believe, accomplished this purpose. It has not been alleged or argued by anyone that I know of that discrimination took place inside the voting booth. The Voting Rights Act was not designed to correct any evils existing inside the voting booth because no such evils have been alleged. I do not believe that this Court has any authority to order that assistance in voting be given to illiterates where no such assistance is provided for by the Voting Rights Act, and where no such assistance is required to eliminate the type of discrimination dealt with by the Voting Rights Act. I must, therefore, dissent from the majority opinion which orders the giving of such assistance to those unable to read or write.
I must also respectfully dissent from the majority opinion insofar as it concludes that the defendants did not prove that the United States and its agents failed to observe the Louisiana statutory requirements as to identification of voter applicants. I agree with the majority in its conclusion that the provisions of Louisiana law, providing for the identification of applicants for registration are not in conflict with the Voting Rights Act. However, on the hearing of this case, Mr. Bruce Rhiddlehoover, the Federal Examiner in the Parish of Plaque-mines, specifically testified that he did not require any identification of applicants except from those who could not spell their name or could not pronounce their name so that he could understand it. Also, Mr. Luke Petrovich, who served *712 on the Commission Council in Plaque-mines Parish, Louisiana, also testified that the Federal Examiners did not obtain sufficient information by which the prospective voters could be identified. For this reason, I cannot agree with the majority when it says that the defendants failed to prove that the Federal Examiners did not observe the Louisiana statutory requirements as to identification of applicants.
ORDER
WISDOM, Circuit Judge.
The following telegram sent to:
THE HONORABLE JACK P. F. GREMILLION, ATTORNEY GENERAL OF LOUISIANA, CAPITAL BLDG. BATON ROUGE, LOUISIANA— INFO MR. HUBERT BANTA CHIEF DEPUTY MARSHAL U. S. DISTRICT COURT, P. O. BLDG., BATON ROUGE, LA.
Upon receiving your telegram the court conferred by telephone. The court, with Judge West dissenting, denies your request for a stay. In view of this decision, the court is unanimously of the opinion that no good purpose would be served by a hearing on your request for a stay. In accordance, however, with your request for a clarification of the order, the court has amended its order by adding the following paragraph: QUOTE “Assistance to voters because of their inability to read or write shall be rendered in both primary and general elections. The assistance shall be rendered substantially in the same manner and under the same conditions as such assistance was rendered when aid to illiterate voters was permitted under the laws of Louisiana, bearing in mind changes in the method of voting incident to the use of voting machines. See LSA-R.S. 18:350. A voter who declares to a commissioner that he is unable to read or write, shall receive the assistance of a commissioner of his own selection in the casting of his ballot. The Commissioner shall ascertain the wishes of the voter and cast the assisted voter’s ballot accordingly. A commissioner shall first, however, require the voter to make a declaration of inability under oath. No person shall swear falsely in order to obtain assistance. Whenever a voter receives assistance, the commissioners in charge of the poll lists shall write the voter’s name in the list and shall write in the column of remarks on the poll list opposite the name of the voter the words ‘assisted and sworn.’ No voter shall ask for or receive assistance from an unauthorized person. No person who is not a commissioner shall volunteer to assist a voter in physically casting his ballot. When a voter calls a commissioner to assist in casting his ballot, one other commissioner, if any, supporting a candidate opposing the elector’s preferred candidate, shall enter the polling booth and view the casting of the ballot, but no other person except commissioners shall give assistance nor shall any person other than a commissioner at any time enter a polling booth while another voter is in the booth. No commissioner shall make known the way an assisted voter casts his ballot, or cast the ballot contrary to the instructions of the voter. Nothing in this order affects assistance to blind or physically disabled voters.” UNQUOTE Sincerely — John Minor Wisdom, U. S. Circuit Judge — Judge Herbert W. Christenberry, U. S. District Judge, New Orleans, La.
WEST, District Judge, dissents for reasons previously stated.
ORDER OF CLARIFICATION
PER CURIAM.
The plaintiff having applied for a clarification of this court’s Order of August 10, 1966, as amended on August 11, 1966, a hearing having been held on August 12, 1966, on said application before Honorable John Minor Wisdom and Honorable Herbert W. Christenberry, and the defendants, represented by counsel, having appeared and objected to the application,
It is hereby ordered, adjudged, and decreed that the defendants and their agents, including parish registrars of *713 voters and all parish, municipal and state primary and general election officials and their officers, employees, and successors, and all those in active concert and participation with them, be and hereby are enjoined from:
a. Interfering with any federal observers, duly appointed under the provisions of Section 8 of the Voting Rights Act of 1965, so as to prevent such observer from exercising any of the powers or performing any of the duties vested in him by Sections 8 and 14 of the Voting Rights Act of 1965 to observe whether persons who are entitled to vote are being permitted to vote at precinct polling places designated pursuant to Section 6 of the Voting Rights Act of 1965, namely East Feliciana, West Feliciana, Ouachita, East Carroll, Madison and Plaquemines.
b. Preventing such federal observers from being present within the voting place during the election to be held on August 13, 1966.
c. Preventing such federal observers from observing the assistance provided to illiterate voters requiring assistance; provided however that an observer may not go behind the curtains of the voting machine, while the assisted voter is in the booth, unless requested to do so by the illiterate voter. If the illiterate voter makes such request, the voting commissioners shall allow the observer to go behind the curtains but solely for purposes of observing. The observer shall be under the same duty to preserve the secrecy of the ballot as are the commissioners.
SECOND ORDER OF CLARIFICATION
The parties to this action have requested that the Court modify and clarify its orders of August 10, 11, and 12, 1966.
I.
The defendants contend that additional identifying data for federally listed voters should be available to local election officials.
Congress did not intend that the federal listing procedure should conform to that of the state. Section 7(a) provides:
* * * An application to an examiner shall be in such form as the Commission (Civil Service Commission) may require * * *.
Section 9(b) additionally provides:
The times, places, procedures,' and form for application and listing pursuant to this act * * * shall be prescribed by regulations promulgated by the Civil Service Commission * * -x-
The report of the House Committee on the Judiciary contained the following explanation of the state laws to be applied :
While State law prescribing qualifications is to govern, this means only State law not inconsistent with Federal law, including this act. State laws regulating the procedures for registration for voting need not be followed by Federal examiners.
The informational data the defendants contend is needed are not voting “qualifications”. An applicant need not have any particular eye color or employer in order to “qualify” to register.
The Eligibility Lists of federally registered voters are sent to each parish registrar and they contain the following descriptive information — name, address, certificate of eligibility number, date of application, age of the applicant, ward and precinct. The certificate of eligibility to vote, which the applicant is given, contains a number (these certificates are numbered consecutively) and lists the name, address, state, parish, ward, precinct, and date of application of the voter. The certificate also has on it the signature of the applicant (which must be affixed in the presence of the federal *714 examiner) and has on it the signature of the examiner.
Thus, when a person presents himself at the polls, the commissioner may check the number and name on his certificate to see if it corresponds to the number and name certified on the eligibility lists. He may check to make sure that address, precinct, ward and date of application correspond properly from the certificate to the list. He may require the applicant to sign his name and compare his signature to the signature on the certificate. If he is still not satisfied, he may ask the applicant his age and look at the applicant to see if he is likely to be younger or older than the age which the examiner has certified him to be. (The voter’s age is not contained on the certificate but is contained on the eligibility lists, so that an applicant asked his age would not have before him the answer to that question, and could not know the answer unless he is the person he represents himself to be.)
If the applicant does not have his certificate and there is some doubt about his identity he may obtain a duplicate at the Office of the Federal Examiner which is open on the day of every election and for 48 hours thereafter.
We agree with the position of the United States that federally listed persons should not be required to do anything further to establish their right tp vote. The United States, however, has stated that it is willing to furnish to the election officials copies of the executed applications used by the Civil Service Commission in listing persons under the Act. These will be arranged by precinct and delivered before the run-off primary September 24, 1966. The use of these forms together with the certificates of eligibility and the normal knowledge of the commissioners of election of the persons who live in their community will, in our view, go far toward meeting the identification questions posed by the State at the argument.
The United States has also offered to review the forms now used by the Civil Service Commission, and, applying the experience gained in the two primaries and the general election in Louisiana and the elections in other states covered by the Act, to advise the Court by December 1,1966, of any revisions it believes should be made.
The Court approves the suggested offer of the United States. Accordingly, at this time, no change in its orders is necessary with respect to identification at the polls of federally listed voters.
II.
The defendants request that the Court modify its orders to do away with any assistance to illiterate voters. In its opinion of August 10, 1966, this Court said:
Like any other law, this [test suspension] provision implicitly carries with it all means necessary and proper to carry out effectively the purposes of the law. * * * We cannot impute to Congress the self-defeating notion that an illiterate has the right to pull the lever of a voting machine, but not the right to know for whom he pulls the lever.
This construction of the Act agrees with that of the unanimous three-judge court in United States v. State of Mississippi (S.D.Miss., 256 F.Supp. 344 , opinion dated May 21, 1966; Circuit Judge Brown and District Judges Clayton and Cox). Although Mississippi law at the time of that decision made no provision for assistance to illiterates, the court stated (at p. 348):
We agree that the obvious sense of Congress is to assure not just registration but the full exercise of the right to vote itself. Indeed, the Act defines “vote” or “voting” in terms of any and “all action necessary to make a vote effective in any * * * election * * * [including] * * * casting a ballot * * § 14(c). We think some suitable arrangements must be made to afford this assistance; and there are ample resources under the Act to effectuate it. Cf. § 5; § 12(d).
The same result was reached by federal courts sitting in Alabama and South Carolina. See Judge Thomas’s order in *715 United States v. Executive Committee of Democratic Party of Greene County, Alabama, D.C.1966, 254 F.Supp. 543 and Judge Martin’s order in United States v. The County Executive Committee of the Democratic Party of Clarendon County, South Carolina, (D.C.S.Car. C.A. No. 66-459), decided June 1966.
Present Louisiana law, as interpreted by the State Attorney General, permits the giving of assistance by poll commissioners to illiterates at general elections. See L.R.S. 18:732, 18:1185; Opinions of the Attorney General, February 5, 1964; Opinions of the Attorney General, 1960-62, p. 97. This Court’s order of August 11, 1966, followed the precise language of L.R.S. 18:350, as it read before its amendment in 1952, in prescribing the procedure to be followed in rendering assistance to illiterates at both primary and general elections.
There are varying degrees of illiteracy, and varying degrees of voter intelligence among functionally illiterate electors. Many illiterates are able to respond to symbols and numbers; others will memorize the positions on the ballot of those for whom they wish to vote. Still others, even if unable to do these things, are willing to take their chances rather than reveal their choices to polling officials. Nonetheless, those few voters who do not trust their own ability to cast a ballot effectively and are willing to seek assistance are, under the Voting Rights Act of 1965 as we read it, entitled to that assistance.
Contrary to the understanding of some persons, the federal observers observe; they do not render assistance to illiterates.
The United States calls our attention to the need for clarifying the duty of election commissioners to advise a person requiring assistance that. he may, if he desires, have a federal observer go behind the curtain with him. Accordingly, paragraph c of the Order of Clarification is amended by the addition of the following language:
The voting commissioners shall advise each person receiving assistance in casting his vote that federal observers are present to observe the act of voting, by machine or otherwise, and that he may, if he desires, have such an observer go behind the curtain to observe the marking and casting of his ballot by machine or otherwise.
Paragraph c will then read:
Preventing such federal observers from observing the assistance provided to illiterate voters requiring assistance; provided however that an observer may not go behind the curtains of the voting machine, while the assisted voter is in the booth, unless requested to do so by the illiterate voter. The voting commissioners shall advise each person receiving assistance in casting his vote that federal observers are present to observe the act of voting, by machine or otherwise, and that he may, if he desires, have such an observer go behind the curtain to observe the marking and casting of his ballot by machine or otherwise. If the illiterate voter makes such request, the voting commissioners shall allow the observer to go behind the curtains but solely for purposes of observing. The observer shall be under the same duty to preserve the secrecy of the ballot as are the commissioners.
III.
A suggestion was made at the hearing that the Court order observers not to be sent to certain parishes. The Court does not have such jurisdiction. Under Section 8 of the Voting Rights Act of 1965, 42 U.S.C. § 1973f, the appointment of observers is a matter of executive discretion and is not subject to judicial review. 42 U.S.C. § 1973f; United States v. George S. Bush & Co., 310 U.S. 371 , 60 S.Ct. 944 , 84 L.Ed. 1259 .
Except as modified herein the previous orders are reaffirmed.