invalidating statute that allowed blind persons to have an assistant in the voting booth but did not extend the same advantage to illiterate voters
How later courts described this case
- invalidating statute that allowed blind persons to have an assistant in the voting booth but did not extend the same advantage to illiterate voters
Written by the judges who cited it.
The opinion
JOHN R. BROWN, Circuit Judge
(concurring in part and dissenting in part).
I concur fully in the able opinion of Judge Roberts and the Order except insofar as it withholds relief as to these plaintiffs. I do not minimize the opportunity for fraud that is suggested. Legislative re-apportionment and congressional re-districting might make it wise to allow Texas time to make legislative adjustments. I think that an in-y junction is in order insofar as it would be effective against party defendants.
Without doubting in the least that election officials will treat our declaration with the same respect as an injunctive order, illiterate voters who suffer discrimination ought not to have to depend on this assumption for full protection of their rights. Of course, an injunction would carefully construct the relief we are granting and non-lawyer election officials would have this spelled out at the very time illiterate voters present themselves to cast their ballot or as effects the assistance to be given. I think we could, with the aid of counsel, construct such an injunction.
SUPPLEMENTAL ORDER
SPEARS, Chief District Judge. *
On this the 23rd day of October 1970, came, on for consideration plaintiffs’ motion fo.r clarification of this Court’s order of October 16, 1970 to the effect that “the Secretary of State of the State of Texas in issuing immediate instructions to the proper election officials that assistance caii be given illiterate voters requesting same is not in violation of the aforesaid order of this Court.”
*141 Article 1.03 of the Texas Election Code provides, among other things, that:
“The Secretary of State shall be the chief election officer of this state, and it shall be his responsibility to obtain and maintain uniformity in the application, operation and interpretation of the election laws. In carrying out this responsibility, he shall cause to be prepared and distributed to each county judge, county tax assessor-collector, and county clerk, and to each county chairman of a political party which is required to hold primary elections, detailed and comprehensive written directives and instructions relating to and based upon the election laws as they apply to elections, registration of electors and voting procedures which by law are under the direction and control of each such respective officer. Such directives and instructions shall include sample forms of ballots, papers, documents, records and other materials and supplies required by such election laws. íle shall assist and advise all election officers of the state with regard to the application, operation and interpretation of the election laws.”
In a letter addressed to counsel for plaintiffs, dated October 22, 1970, and attached to said motion as Exhibit A, the Secretary of State has expressed concern “as to whether illiterate voters may be assisted in voting at the present election or whether the order is to be implemented only after the Legislature has had an opportunity to amend the statutes.” In this connection, the Secretary of State says: “This office still has the capability of disseminating instructions to all election officials in the state in time for the November 3rd elections.”
On the basis of the record before us when our prior order was entered, we felt that the limited time remaining before the election was not sufficient to enable us to fashion supervisory rules to fully protect the constitutional rights of illiterate voters, and at the same time guard as fully as possible against the dangers of election fraud. Significantly, there was no indication at that time that any state election official thought he could do it either. All of this led to our conclusion that such matters could best be handled through the legislative process. However, it now appears that the Secretary of State sees no problem in this area, and, under the circumstances, we have no desire to interfere with him in the exercise of his sound judgment and discretion, as the chief election officer of the state, in determining whether or not the Texas election laws can be properly and fairly administered in light of our order of October 16, 1970. Certainly, our said order was not intended to conflict in any way with the Secretary, of State’s proposal, and we so hold.
Acting for and on behalf of all three judges designated to hear and determine this cause, with full authority from each such judge to so act.