United States v. State of Louisiana

WEST, District Judge

(dissenting):

When the majority decision was filed in this case, I announced that I dissented and would assign reasons therefor. This Three Judge Court originally had before it only the question of the constitutionality of Louisiana’s constitutional interpretation test, LSA-Const. of 1921, Art. VIII, Sec. 1(d) and LSA-R.S. Title 18, See. 35, as used to determine voter qualifications. After this matter had been briefed and submitted, the Government suddenly injected another issue, i. e., the question of the constitutionality of Louisiana’s new citizenship test, LSA-R.S. 18:191, as amended by Act 62 of 1962, as a State qualification for voting. I objected to the Court’s considering the question of the constitutionality of the new citizenship test on the grounds that no “case or controversy” had arisen thereunder, and that therefore, the question of its constitutionality was not properly before the Court at this time. However, the majority of the Court decided otherwise, and has now held that the constitutional interpretation test, as provided for in Art. VIII, Sec. 1(d) of the La.Const., and in LSA-R.S. Title 18, Sec. 35, is “per se invalid under the Fifteenth Amendment”, and that “it is also per se invalid under the Fourteenth Amendment”. The majority further holds that “[t]he vices cannot be cured by an injunction enjoining its unfair application”. As to the lately injected issue concerning the constitutionality of the citizenship test, the majority specifically state that “[T]his decision does not touch upon the constitutionality of the citizenship test as a state qualification for voting”, but then proceed to forbid the enforcement or use of that test until the State “satisfies this Court” that what it considers “errors of the past” have been corrected.

The majority opinion, including footnotes, comprises some 93 mimeographed pages, most of which is completely immaterial to a decision of this case. When the majority of the Court finds that the constitutional interpretation test is “per se invalid”, there is, of course, no reason to delve into the past history and usage of the test. For an act to be “per se” invalid, it must be invalid in itself; it must be invalid when taken alone; it must be inherently invalid; and it must be invalid in itself without reference to other matters. See Black’s Law Dictionary, Fourth Edition. Consequently, if the act is, as the majority holds, invalid per se, then it must be invalid on its face, and in itself, and thus the question of the method of its administration is wholly immaterial.

*399 That the constitutional interpretation test used by Louisiana is not, however, “per se invalid” becomes quite clear when viewed in light of prior holdings of the United States Supreme Court. It is sometimes difficult to decide whether to rely on the law as the Supreme Court interpreted it a few years ago, or to rely on it as interpreted last week, or to speculate on how they might interpret it tomorrow. However, in this instance, relative to a citizen’s right of suffrage, I prefer to believe the law to be as interpreted by the United States Supreme Court on many occasions in the past. In rejecting the proposition that the Fourteenth Amendment added the right to vote to the privileges and immunities of citizenship, the Supreme Court, in Minor v. Happersett, 21 Wall. 162, 177 , 88 U.S. 162, 177 , 22 L.Ed. 627 , said:

“Certainly, if the Courts can consider any question settled, this one is. For nearly 90 years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage. If uniform practice, long continued, can settle the construction of so important an instrument as the Constitution of the United States confessedly is, most certainly it has been done here. Our province is to decide what the law is, not to declare what it should be.”

Then, in United States v. Reese, 92 U.S. 214 , 23 L.Ed. 563 , 564, in disposing of the argument that the right to vote was conferred by the Fifteenth Amendment to the United States Constitution, the Supreme Court said:

“The Fifteenth Amendment does not confer the right of suffrage upon anyone.”

And then, in McPherson v. Blacker, 146 U.S. 1, 39 , 13 S.Ct. 3 , 36 L.Ed. 869 , the United States Supreme Court once more recognized the fact that it was within the province of the State, and not the Federal Government, to determine voter qualifications. In the course of its opinion, it said:

“The right to vote intended to be protected refers to the right to vote as established by the laws and constitution of the State.”

In a long line of unbroken jurisprudence beginning in 1874, the United States Supreme Court has consistently recognized that the privilege of voting is conferred upon citizens by the States, and that the United States Constitution does not confer upon anyone the privilege of suffrage. In Pope v. Williams, 193 U.S. 621, 632 , 24 S.Ct. 573, 575 , 48 L.Ed. 817 , the Court said:

“The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. * * * It may not be refused on account of race, color or previous condition of servitude, but it does not follow from mere citizenship of the United States.”

Therefore, insofar as the majority opinion seems to indicate that somehow, the right to vote is guaranteed by the United States Constitution, I respectfully suggest that the majority is in error. In view of the fact that the privilege of voting emanates entirely from the States, and not from the Federal Government, and in view of the fact that the judicial function is properly exercised only by indicating whether or not the State has transcended provisions of the Federal Constitution, it follows, just as the night follows the day, that the role of the Federal Court is not to direct the State in the procedures to be used in registering voters. The Supreme Court has held that the “conditions under which the right of suffrage may be exercised” lies with the States. Lassiter v. Northampton Board of Elections, 360 U.S. 45, 50 , 79 S.Ct. 985, 989 , 3 L.Ed.2d 1072 .

The majority opinion is so lengthy, and involves so many extra-judicial dis *400 courses, that it is rather difficult to determine whether it holds that the State constitutional provision and the State Statute establishing the constitutional interpretation test are unconstitutional in themselves, or whether it holds merely that these State laws have been unconstitutionally administered. I must conclude, however, that the majority intended to hold, as they stated near the close of their opinion, that the constitutional interpretation test is “per se invalid under the Fifteenth Amendment, and it is also per se invalid under the Fourteenth Amendment” of the United States Constitution. This being the case, the prior history of voting requirements in Louisiana, as discussed at great length in the majority opinion, is completely immaterial. If these laws are invalid per se, then it matters not how they were administered. No method of administration could validate a law which is invalid per se. If, however, the majority intended to hold, contrary to their specific statement concerning invalidity per se, that the test is unconstitutional because of improper application, then, in view of their ultimate order in connection with the State’s use of the new citizenship test, it is difficult to understand why they did not merely enjoin the improper application of the constitutional interpretation test in the twenty-one Parishes where they found that it had been improperly applied. As will later be noted, they had no hesitancy in dividing the State into sections and holding that the new citizenship test may be applied in some Parishes of the State while it may not be applied in other Parishes. In line with this reasoning, if the constitutional interpretation test is bad only because of its improper use, then the improper use should have been enjoined only in the twenty-one Parishes where it had been improperly applied, and the remaining Parishes of the State should not have been interfered with in their use of that test. If, as stated by the majority, they actually found that the constitutional interpretation test was “invalid per se”, they need only to have said so, and then, the application thereof becomes completely irrelevant because as heretofore pointed out, there is no way that an unconstitutional statute may be constitutionally applied. On the other hand, if the statute itself is per se constitutional, then I cannot agree that the “vices cannot be cured by an injunction enjoining its unfair application”. I believe that a Court should be most reluctant to declare unconstitutional the statutes and constitutional provisions of a State, and should do so only when the statute and/or the constitutional provision involved is clearly in contravention of the United States Constitution. In Cummings v. Merchants National Bank, 101 U.S. 153 , 25 L.Ed. 903 , the United States Supreme Court held that a law is not to be held unconstitutional merely because of unfaithful administration. It held that a statute, valid as to one set of facts, may be invalid as to another. That is, its application may be valid or its appli■cation may be invalid, notwithstanding the constitutionality of the statute itself. In Kansas City Southern Ry. Co. v. Anderson, 233 U.S. 325 , 34 S.Ct. 599 , 53 L.Ed. 983 , the Supreme Court considered and strongly rejected the contention that to hold that a statute has been unconstitutionally applied under one specific set of facts is tantamount to holding that the statute itself is invalid.

I must therefore respectfully disagree with both the findings and the conclusions of the majority insofar as the validity of the constitutional interpretation test as used in the State of Louisiana is concerned. While it may well be that there have been many instances of improper applications of that test, nevertheless, such improper applications do not, in my opinion, render the laws themselves unconstitutional. If, as I believe to be the case, the constitutional interpretation test is not unconstitutional per se, then only the improper application of the test should have been enjoined. I prefer to believe that the *401 Supreme Court of the United States meant what it said in the cases which I have cited, and in the many, many other cases that might have been cited to the same effect, namely, that the right remains with the States to decide and declare the requirements for voter registration.. I prefer to believe that the function of the Court is merely to decide, in each specific case, whether or not the State has transcended the prohibitions contained in the United States Constitution, and if such is found to be the case, to order, by injunction, if necessary, the termination of such discriminatory practices. I do not believe that it is a proper function of the Court to establish by decree the qualification requirements of voters in the State of Louisiana. That, in my opinion, is precisely what the majority of the Court in this case does.

After concluding that the constitutional interpretation test is “invalid per se”, the majority then proceed to a consideration of the validity of the new citizenship test, despite the fact that there were no allegations, nor could there be, that the citizenship test was either unconstitutional or improperly applied. Indeed, the majority specifically states that it does not “touch upon the constitutionality of the citizenship test as a state qualification for voting”, but then proceeds to prohibit its use in twenty-one Parishes in the State of Louisiana. It is too elementary to require citation of authority that a statute properly passed by a State Legislature is presumed to be constitutional until such time as it is found to be unconstitutional. This Court has not found the citizenship test to be unconstitutional, and thus, it must, of course, be presumed to be constitutional. If the test is, in fact, constitutional, as it must be considered to be in light of the Court’s failure to find it unconstitutional, then, it is a complete mystery to me where the Court finds its authority to enjoin its use. If the majority has found that the constitutional interpretation test is unconstitutional because of its improper use, a conclusion with which I strenuously disagree, then by the same token, I suppose, they could have found that the citizenship test is unconstitutional because of improper use. However, the Court does not find that the citizenship test has been improperly used, and in fact, they have not found it to be unconstitutional in any way whatsoever. Nevertheless, in spite of this fact, the majority takes the position that the use of this new test in the twenty-one Parishes where they considered the constitutional interpretation test to have been improperly applied, would result in continued discrimination unless all voters were purged from the rolls and a complete new re-registration of all voters, using the new citizenship test, were accomplished. The majority decrees that the new citizenship test may not be used “until the discriminatory effect of the test has been vitiated to the satisfaction of the court”. In other words, it would seem that in order to comply with this order, the new citizenship test, even though constitutional in every respect, may not be used until the case of every single voter on the rolls in tweny-one Parishes has been submitted to the Court for a determination of whether or not each individual voter has been properly registered to vote, without discrimination. I simply cannot agree that this is a function properly within the ambit of the authority of this Court. Anyone has a right to claim discrimination, and when discrimination has been claimed, he has a right to his day in court. But until such a case or controversy has been presented, the Court simply has no right to intervene. The majority opinion states: “The ordered society our Constitution establishes does not permit one man to have uncontrolled power over his fellow citizens. When the State clothes a registrar with omnipotence in deciding the qualifications of voters, it has enacted ‘not a law, but an attempt to make the arbiter in such a case the law in himself.’ ” The majority opinion would merely refuse to allow the registrar to be “a law in him *402 self”, and substitute, in his stead, this Court. This opinion can have no other effect than the taking over by this Court ■of the functions of the State when it ■comes to determining the qualifications required for voter privileges. The majority opinion further states: “[T]his Court ■adheres to the principle that only to the extent clearly necessary should federal courts interfere with established state and local procedures.” I can only say that if the majority means what it says in •this statement, it must surely have failed fo read its own opinion. The majority opinion says, in effect, that whenever a State wishes to alter or improve its voting requirements, it may do so only if it has a complete re-registration of everyone on the rolls throughout the entire State. This proposition has been rejected by the Fifth Circuit Court of Appeals in ■United States v. Atkins, et al., 323 F.2d 733 (1963). The majority opinion attempts to distinguish the present case from the Atkins case, but in my opinion fails completely to do so. The Atkins •case specifically rejects the proposition that a State may not alter its voting requirements without re-registering all voters in the State. They try to distinguish Atkins on the grounds that in that case the question was whether a Board of Registrars should be required to violate a valid State law in the future because a predecessor board of that county had violated the same law in the past. They then go on to say that the difference between that case and the present case is that the issue here is whether a State may raise the standards for registration by enacting a new law which has the necessary, inescapable effect of freezing discrimination under an unconstitutional prior law. ‘They fail to recognize the fact that the law establishing the constitutional interpretation test used by the State of Louisiana and under which the majority now holds there were instances of discrimination, was not an “unconstitutional law” ■until this present decision was handed down. The very same law had been specifically held to be constitutional in the case of Trudeau v. Barnes, 65 F.2d 563 (C.A.5 1933). All action by the State of Louisiana taken pursuant to that law was, prior to the filing of this decision, taken pursuant to a statute which the Federal Court, Fifth Circuit, had specifically held to be constitutional. In the Trudeau case the Court said:

“It is at once apparent that the clause of the State Constitution which is under attack applies to all voters alike, denies to none of them the equal protection of the laws, does not undertake to deny or abridge the right of citizens of the United States to vote on account of race, color, or previous condition of servitude. It is difficult to conceive how this clause can be said to violate either the Fourteenth or the Fifteenth Amendment. It lays down but one test, that of intelligence, which applies uniformly and without discrimination to voters of every race and color. * * * The Louisiana Constitution protects every citizen who desires to register from being arbitrarily denied that right by the registrar of voters by giving the applicant a right to apply without delay and without expense to himself to the trial court for relief, to submit his qualifications to vote to a jury, and to have them finally passed upon by an appellate court. It is idle to say that the defendant as registrar had the arbitrary power to deny plaintiff the right to vote. We cannot say, and refuse to assume, that, if the plaintiff had pursued the administrative remedy that was open to him, he would not have received any relief to which he was entitled. * * * »>

Consequently, the distinction attempted to be drawn by the majority to distinguish the Atkins case is simply not valid. The effect of the majority order in this case, that the State of Louisiana may not use the new citizenship test in the twenty-one Parishes involved, is to order the State to violate an existing, valid law un *403 til this Court tells them that they need no longer violate it. The citizenship test, as of now, is valid and has not been held invalid by any court, including this one. Therefore, for this Court now to order the State to refrain from using that test is to order them to violate a valid existing law of the State of Louisiana. In my judgment, the opinion of the majority in this case is just another example of the “personal decreeing” so bitterly criticized by Judge Hutcheson in his dissenting opinion in Lee v. United States of America, (1963), 5 Cir., 322 F.2d 770 . I concur completely with the remarks of Judge Hutcheson contained therein.

In brief, I cannot sanction the take over by this Court of the functions of the State whereby this Court attempts to establish, and administer, as well as to adjudicate the State laws relative to voter registration. I believe that this Court should confine its activities to the judicial determination of cases and controversies as obviously contemplated by the limited jurisdictional grant contained in the United States Constitution

I can do no more than to concur with Judge Bell’s dissent in Davis v. Board of School Commissioners of Mobile County, 322 F.2d 356, 362 (C.A.5 1963), when he said: “Therefore, I must dissent * * with the admonition that more constitutional rights will be lost than gained in the long run by departure from procedures which have stood the test of time, and which are a part of due process of law as we have heretofore known it,” and to concur with Judge Cameron’s dissent in Sharp v. Lucky, 252 F.2d 910, 924 (C.A.5 1958), wherein he said: “This sad epoch in our history [post Civil War] was fomented in no small part, by well-intentioned men in too much of a hurry.”

I must, for these reasons, respectfully dissent.