State of Alabama v. United States

JOHN R. BROWN, Circuit Judge.

This case presents the question whether, under the Civil Rights Act of 1957,¹ as amended 1960,² in a suit brought by the United States, the District Court may affirmatively order the registration of specified Alabama Negro voters found by the Court to have been discrimina-torily denied registration because of their race and color. Subsidiary to this basic question is the further procedural one of whether, assuming power to issue amandatory injunction, the granting of such relief here worked a substantial, and wholly unpredicted change in the nature of the case being tried and the issues to be adjudicated.

After a trial comprising over nine hundred pages of testimony from 53 witnesses plus two huge boxes of documentary exhibits, the District Court found that the State of Alabama,³ through its voting registrars for Macon County, had denied registration to, and hence disenfranchised, Negro applicants because of their color and race. United States v. State of Alabama, M.D.Ala.1961, 192 F.Supp. 677. See also 188 F.Supp. 759, M.D.Ala.1960.

As we point out in greater detail later, Alabama ⁴ does not challenge this finding of discrimination. Perhaps even more significant, it does not challenge the decree or any of its numerous and pervasive parts except in one respect. Its whole attack here is centered on the portion of the decree which affirmatively requires that registration certificates be issued to 54 specified Negro applicants. Thus, for the purposes of this case at least, Alabama acquiesces in the correctness of the decree which, after declaring all discriminatory practices unconstitutional and therefore prohibited, proceeds to require Alabama to do these things. Specific notice was first taken of the Tuskegee precinct (Beat 1) where violations were most marked. The decree requires that registration applications be received there on at least two days a month and that the hundreds of Negroes then on the appearance list be processed at the rate of at least six simultaneously. The decree then provides that the Registrars must hold regular voter application days monthly processing, in regular and expeditious order, white and colored applicants in accordance with the appearance list to be maintained without racial discrimination. The Registrars may use racially nondiscriminatory writing tests of not to exceed 50 consecutive words from the Constitution. Registration applicants are to be notified within twenty days of the acceptance or rejection of the application and, where rejected, the exact reasons therefor. An elaborate continuous policing machinery is established. This is done by requiring a monthly report to the Court of the dates and places of holding voter registration, the name, race and date of every application received, the action taken by the Registrars, and the date the certificate of registration was mailed or notification of rejection sent. A copy of every notification of rejection is to accompany this monthly report. The decree also prescribes that voting records should be open to examination by agents of the United States. It then requires a monthly report by the United States Attorney covering much of the data called for in the report from the State.

It is therefore evident that the District Court thought it encumbent that the Federal Court, in many and varied ways, engage in a most detailed supervision of the day-to-day operation of voter registration. Moreover, neither the power to do so, nor the propriety of its exertion, is here challenged. This is itself a circumstance of some importance. In so stating, we mean no criticism of the State for its not urging objection here. We are the first to recognize that for tactical or strategic reasons, the State may have concluded that fire should be concentrated on the one target. At the same time the object of that attack— the mandatory affirmative order to register — is part and parcel of an intricate judicially constructed machinery to assure genuine, continuous nondiscrimination. That such far-reaching steps were needed imparts color and similar necessity to feature under attack.

For similar reasons, the facts, though now undisputed and unchallenged, warrant a brief summary. For they, too, will illumine the specific order on which the State levels its whole barrage. As with the terms of the order, we must take pains to make clear that no criticism of the State is intended for not directly challenging the fact findings. Courts do, and should, welcome the forthright and sharply defined submission of serious legal questions of the kind here posed without encumbering the process by factual or collateral disputes no matter how earnestly held. But the State’s willingness to acquiesce in the District Court’s findings does not make them any less facts. Nor does it conceal or shield them from scrutiny insofar as their very detail may reflect light and meaning and necessity on the particular weapon fashioned by the Judge to meet the challenge of such facts. As neat and comfortable as it might be to view microscopically the State’s contention as a sterile question of law, neither the judicial process nor the meaning and purpose of the Civil Rights Acts as a means of effectuating the guarantees of the Fifteenth Amendment permit it. What the Judge ordered to be done must be measured in terms of what the Judge saw.

The problem has its genesis in racial discrimination. It concerns voters in Macon County, Alabama, the most populous portion of which is Tuskegee. The majority of Negroes in Macon County live and work in Tuskegee, which is the site of Tuskegee Institute and a large Veterans Administration Hospital. Many of these Negroes are associated with one of these institutions, and a large majority of them have college or high school educations. Of course Tuskegee is no stranger to governmentally directed racial discrimination. Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. That effort— perhaps more massive and frontal — if successful would disenfranchise those few who had won the struggle of registration. Here we deal with those who wish to join that small band.

In the problem of racial discrimination, statistics often tell much, and Courts listen.⁵ Here they are spectacular. With approximately 17% of the Macon County population being white, the balance, 83%, being Negro, less than 10% of the Negroes of voting age are registered while nearly 100% of the white citizens are.⁶

The evidentiary details recited by both colored and white witnesses made it doubly clear that these statistics were not distorted. They demonstrate also that, for at least this time, these figures are reliable in their major implication that such disparity could not exist by chance alone, that there had to be causes for this result, and that a principal cause was conscious racial discrimination by those entrusted with the duty of impartial administration of law.

Registration is a prerequisite to voting in Alabama. Registration is permanent and re-registration is not required. Registration is by a Board of Registrars composed of three members appointed pursuant to state law. The qualifications of voters is set forth in the Alabama Constitution and implementing statutes.⁷ In addition to the usual requirements of age, citizenship, residence, the applicant must fill out a lengthy questionnaire and demonstrate that he can read and write any Article of the United States Constitution. It is this machinery of administration which became the engine of discrimination.

What was done inevitably was measured by the District Court against what was undone. In that respect the most effective way to avoid certifying Negroes as qualified voters was to have no facilities by which the registration could take place. This, while having the nominal virtue of excluding white and Negro alike, did not work that way in view of the saturated registration of nearly all white adults, but only 10% of the Ne-groes. This situation prevailed for much of the recent past.⁸

And what was done likewise had to be measured against the manner in which it was done. The whole process was infected by an unsophisticated, patent, double standard. Here the obvious preferment of white applicants over Negroes in the physical routine handling of the procedure was more than an extension of social habits and customs of long standing. Here it effectively denied registration because it denied the opportunity to register.

The evidence was replete with instances in which a number of Negroes were the first to arrive at the place of registration. The Board, however, had white applicants arriving later sign the waiting list ahead of the position of the Negroes.⁹

Standing alone, and as irritating as that might be, this might sound quite trivial. But this was but a part of a pattern by which, with an occasional deference toward apparent equality, the grossest sort of inequality was being practiced. For in the critical stages of 1960, this tied into the deliberate slowdown. Again, this was done with all of the window dressing of solemn, painstaking, deliberate consideration of a matter having the importance of voting.

Presumably because of intensified interest in securing voter equality, there was a great upsurge in the number of Negro applicants in 1960. In a brief period of time several hundred came to the registration places and put their names on the “priority sheets” (see note 9. supra). Of course, the easiest way of handling this was for the Board to be so occupied, ostensibly at least, that there would be no opportunity for many of these Negroes to proceed as far as the actual registration interview. This tactic was both crude and simple: white applicants were first on the priority list; the Registrars would not get to the many lower-listed Negroes because it would take so long with the white applicants. This process, of course called for patient, laborious, slow, time-consuming copying of very long articles of the United States Constitution by whites, as well as those few Negroes who worked up to the top of the list. Likewise, only one applicant was processed at a time, and no effort was made to handle a number of them simultaneously. This system really worked. So much so, that the maximum number ever processed by the 1960 Board in one day was five in contrast to eight times that in 1958.¹⁰ And in total numbers processed, the Board for seven months in 1960 completed only 50 applications.¹¹ Indeed, the situation was so bad that on the trial numerous witnesses could make the arithmetical point that at the rate the Board was then “moving” — with approximately 18 Negroes getting as far as the registration desk per year — it would take over 20 years for the some 400 Negroes on the current priority sheet to get the actual opportunity to apply for registration.¹²

As though this discrimination was not enough to discourage or thwart effective Negro voter registration, the greatest disparity occurred in the substantive handling of applications of Negroes for whom, after working up to being face-to-face with the Registrar, the moment of truth had at long last arrived.

Though the Alabama Constitution prescribes that no assistance shall be rendered to applicants save for rare instances of physical infirmities,¹³ the record showed two things in graphic parallel. On the one side was repeated assistance to specifically identified white voters, many of whom candidly acknowledged that his education and learning was insufficient to permit an intelligent understanding of the sometimes baffling questionnaire. Again, this might have been deemed trivial were it not for the fact that whereas white voters were given frequent assistance in determining the correct answers to unclear questions, Negroes not only failed to receive assistance, their applications were rejected for slight and technical errors in answers to just such very questions.¹⁴

These and other practices led to the rankest discrimination as to grading. Numerous technical, insubstantial, minor errors were checked off in red as presumably the basis for nonissuance of voter registration even though no such treatment was accorded white applicants. More than that, many of these Negroes had undergraduate and postgraduate college degrees and held responsible positions at Tuskegee Institute or the Veterans Administration Hospital.¹⁵ And to these crude efforts described by us in some detail must be added others found by the District Court to exist and not challenged here by Alabama.¹⁶

But what was undoubtedly the most disturbing thing of all to the trial Judge was not the recitation of past events which showed that as time went on things were getting progressively worse, not better. The . disturbing thing was, rather, that there was not even a slight ray of hope that conditions would improve, and that specifically, despite evident shortcomings in the past, the Registrars would now undertake to operate voter registration without conscious race discrimination. In the face of testimony which, word by word, witness by witness, convicted the Registrars of palpable discrimination, the Court was certainly right in thinking that it was actually, even if perhaps not technically, a part of the State’s case to demonstrate a purpose to eliminate the past, and constitutionally insupportable, abuses. But where there should have been witnesses, there was silence. So much so, that after stating that he thought members of the current Board should be presented as State's witnesses, the State declined to put them on the stand, and the Judge had to call two of them as the Court’s witnesses. From the lips of the two, the Judge could now see what others already knew,¹⁷ that the past was more than the past. It was the future as well. The Judge could see that the Board had neither plan nor purpose to eradicate these administrative evils.

It was in this setting — under the cumulative impact of gross abuses in the past and little expectation of improvement for the future — that the Judge was led to conclude “that this Court is of the firm opinion that this case warrants not only a prohibitory decree but a decree mandatory in nature.” D.C., 192 F.Supp. 677 at 682. In the light of the Civil Rights Act of 1957, as amended in 1960, the Court went on, complete relief “requires that the decree in this case be framed so as (1) to correct the effect of the Board’s past discriminatory practices by placing certain Negroes on the voting rolls immediately * * D.C., 192 F.Supp. 677, 682. Implementing this, the District Court’s opinion called for the mandatory decree now under attack:

“In this connection, this Court specifically finds and concludes that the Negro citizens of Macon County whose names are listed on Appendix ‘E’ to this opinion were qualified by law to vote at the time of their respective applications for registration and the failure to register these Negro citizens was and is in violation of the Constitution and laws of the United States.” D.C., 192 F.Supp. 677, 682-683.

In the light of the circumstances of this record, briefly summarized by us, we are of the clear view that this order was within the power of the Court to grant, and that the exercise of that power was eminently proper.¹⁸

To support this conclusion we need search no further than the Civil Rights Act of 1957. In sweeping terms, subsection (a) affirmatively establishes a policy effectuating the Fifteenth Amendment that "all citizens * * * who are otherwise qualified by law to vote at any election * * * shall be entitled and allowed to vote at all such elections, without distinction of race, [or] color * * * » ¹⁹ The Act thereafter furnishes an adequate machinery for effective enforcement of this policy. As to subsection (a) rights, the Statute through subsection (c) prescribes that the “act or practice constituting a deprivation” of any such right "shall also be deemed that of the State and the State may be joined as a * * * defendant * * *.”²⁰ The section earlier prescribes that “whenever any person has engaged * * * in any act or practice * * * ” which would infringe subsection (a) rights the United States may institute “ * * * a civil action or other proper proceedings for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order.” ²¹ Moreover, subsection (d) uses strong and mandatory language in prescribing that the District Courts “shall have jurisdiction” of such proceedings and “shall exercise the same without regard to” exhaustion of administrative “or other remedies * * Cf. United States v. Wood, 5 Cir., 1961, 295 F.2d 772, 783.

This language points to several significant things. At the outset, the allowance of a direct suit against the State, as such, and .the parallel substantive provision that discriminatory acts or practices shall be “deemed that of the State” plainly reveals that Congress was acutely aware that the lawsuit would almost inevitably relate to many activities which are traditionally performed by, or for, the State as a true governmental function. The fact, then, that the administration of voter registration or other aspects of voter qualification ordinarily is, and should be, performed by State agencies, was not to be an obstacle to effective protection by the National Government of federally secured constitutional rights. Indeed, the established certainty that in some States these rights were being denied by State agencies led to the enactment of this Statute.

From this viewpoint the provision of subsection (d) was more than a promulgation of a procedural rule concerning exhaustion of remedies. In declaring that the Court “shall have jurisdiction” and “shall exercise” such power, Congress revealed again a purpose, where necessary, to interpose the Federal Court in the voter qualification process even though it meant supplanting successive elements in any State, administrative, judicial, or quasi judicial machinery for review of adverse actions. The Federal Court may — and perhaps must — take action on a showing of discrimination even though to do so effectually bypasses or dispenses with review by a State administrative or judicial tribunal. The occasional necessity of some such interruption of normal, ordinary processes was, therefore, contemplated and authorized by Congress. An order compelling a Registrar to register specified persons, if different, is so in degree only, not in kind.

And, perhaps even more decisive, Congress used broad language in describing the character of relief open to the District Court. The suit is described as a proceeding for “preventive relief.”²² This is spelled out in the traditional terms to include “permanent or temporary injunction” and restraining order. To make certain that effectuation of the policy of the Act should not be thwarted by any rigid limitations of even these elastic procedures, Congress expressly stated that relief available included such injunctions “or other order.”²³

Mandatory injunctions affirmatively compelling the doing of some act, rather than merely negatively forbidding continuation of a course of conduct, are a traditional tool of equity. Long ago we said “an injunction may compel the performance of a duty.” Loisel v. Mortimer, 5 Cir., 1922, 277 F. 882, 886. Certainly the order may command affirmative action where the enabling statute provides, as this one does, for the use of an injunction “or other order." Almost identical language as used here was held to justify an affirmative equitable order compelling the payment of money by way of restitution. Porter v. Warner Holding Co., 1946, 328 U.S. 395, 399, 66 S.Ct. 1086, 90 L.Ed. 1332.

In prescribing a suit to be brought by the sovereign for equitable relief, the statute contemplates that the full and elastic resources of the traditional court of equity will be available to vindicate the fundamental constitutional rights sought to be secured by the statute. Once Congress has vested jurisdiction of the cause in a District Court, such Court has, in the absence of statutory limitations, all of the traditional powers and facilities of a court of equity. Williamson v. Berry, 8 How. 495, 12 L.Ed. 1170; Sprague v. Ticonic National Bank, 1939, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184. Where a federal statute establishes a general right to sue, “federal courts may use any available remedy to make good the wrong done.” Bell v. Hood, 1946, 327 U.S. 678, 684, 66 S.Ct. 773, 776, 90 L.Ed. 939; Dooley v. United States, 1901, 182 U.S. 222, 21 S.Ct. 762, 45 L.Ed. 1074, see especially 228-230, 21 S.Ct. 762, 45 L.Ed. 1074. This may at times even require that a body of federal substantive law be fashioned to effectuate the policy underlying the grant of jurisdiction. Textile Workers Union v. Lincoln Mills, 1957, 353 U.S. 448, 451, 460, 77 S.Ct. 912, 923, 1 L.Ed.2d 972.

The aim of equity is to adapt judicial power to the needs of the situation. Thus relief in matters of public, rather than private, interests may be quite different from that ordinarily granted.²⁴ Though language frequently employed might be thought to place this result on the nature of the litigant — the sovereign or an agency of Government— it is really a manifestation of the principle that the nature of the relief is to be molded by the necessities. Porter v. Warner Holding Co., 1946, 328 U.S. 395, 397, 66 S.Ct. 1086, 90 L.Ed. 1332; Hecht Co. v. Bowles, 1944, 321 U.S. 321, 329, 64 S.Ct. 587, 88 L.Ed. 754. The necessities will encompass, of course, special statutory objectives. “When Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in light of the statutory purposes. As this Court long ago recognized, ‘there is inherent in the Courts of Equity a jurisdiction to * * * give effect to the policy of the legislature.’ Clark v. Smith [38 U.S. 195], 13 Pet. 195, 203, [10 L.Ed. 123, 127].” Mitchell v. DeMario Jewelry, 1960, 361 U.S. 288, 291-292, 80 S.Ct. 332, 4 L.Ed.2d 323.

Here the matter at stake is the fulfillment of a policy wrought out after extensive consideration of what Congress thought to be contemporary evils by States and agencies of States in the spurious, sometimes sophisticated, sometimes crude, practices by which Negroes were effectively denied the right to vote because of color and race alone. It was this evil which brought about the statute. It is inconceivable that in its enactment Congress meant by this broad language to grant less than effective judicial tools to combat it.²⁵ Especially is this so since Congress must have been aware that in the context of racial civil rights matters mandatory orders were being issued and approved in school desegregation cases requiring admission in accordance with specific plans.²⁶

In the face of this analysis, the prior decisions urged by Alabama are neither controlling nor persuasive. The most formidable, Giles v. Harris, 1903, 189 U.S. 475, 486, 23 S.Ct. 639, 47 L.Ed. 909, despite the somewhat celebrated dictum of Mr. Justice HOLMES that "the traditional limits of proceedings in equity have not embraced a remedy for political wrongs,” does not stand in the way of the relief here granted.²⁷ As Lane v. Wilson, 1939, 307 U.S. 268, 272, 59 S.Ct. 872, 83 L.Ed. 1281, made clear, the setting and holding of Giles was unique as one in which a citizen, attacking a state voter qualifications statute as invalid, was simultaneously claiming a right to come under it. Moreover, as a decision emphasizing a supposed immunity to judicial action because of political characteristics of the controversy, the case falls under Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. To that may be added that Giles itself envisaged — as was done by Congress here —that “relief from a great political wrong * * * ” is to “be given * * * by the legislative * * * department of the government of the United States,” 189 U.S. at 488, 23 S.Ct. at 642.

The finding of no discrimination in both Ventre v. Ryder, W.D.La., 1959, 176 F.Supp. 90, 97, and Tullier v. Giordano, 5 Cir., 1959, 265 F.2d 1, 4, eliminates those decisions as irrelevant. That leaves only Byrd v. Brice, W.D.La., 1952, 104 F.Supp. 442, affirmed 5 Cir., 1953, 201 F.2d 664, and especially emphasis on the declaration of the District Judge that a “direct mandate [to register Negro voters] from [the court] would be usurpation * * * of the discretionary function of the registrar.” While this decision could be distinguished on several grounds, we think it appropriate to state quite plainly that our affirmance of that judgment was not intended to, and did not, approve that language as such, nor commit this Court to the proposition that mandatory orders compelling affirmative action may never be entered against state voter registration officials to overcome established racial discrimination.

As to this phase of the case, we must deal with one further contention of Alabama. Whether stated independently or rather more as a persuasive reason why an affirmative decree is not permitted, Alabama seems to imply that the District Court is limited in the relief it may grant under the Civil Rights Act of 1957 to the remedies conferred by the Civil Rights Act of 1960. We adopt as sound the Government’s answer refuting this contention.

The 1960 Act added a new subsection.²⁸ This subsection comes into play only upon a finding by the Court that persons have been deprived on account of race of subsection (a) rights, and that such deprivation was or is pursuant to a pattern or practice. Once such a finding is made, any other person of such race within the affected area is, upon his subsequent application, entitled to an order declaring him qualified to vote upon proof that (1) he is qualified under state law to vote, and (2) subsequent to such finding by the Court, he has been (a) deprived of the opportunity to register to vote or otherwise qualified, or (b) found not qualified to vote by any person acting under state law. The time element is important. For this provision prospectively governs persons found unqualified to vote subsequent to a judicial decree issued in a suit by the United States under 42 U.S.C.A. § 1971(c). Under its operation, this provision avoids relitigat-ing the issue of racial discrimination with respect to each individual of the race found to have been the object of such discrimination.²⁹ This flows from the fact that this subsection permits the Court to declare an applicant qualified to vote merely upon proof that (1) he is qualified, and (2) subsequent to the Court’s finding of a pattern or practice, such person has been found not qualified by the Registrar or has been denied the right to register.

Far reaching and as important as this subsection is, it does not govern the form of relief which the Court may grant with respect to individuals who, at the original trial of the section 1971(c) suit, are found by the Court (1) to have been declared unqualified to vote by the Registrar, (2) to have been so declared solely because of race or color, and (3) to be qualified. What Alabama overlooks in this argument is that as to these individuals, the judicial determinations stipulated in subsection (e) already have been made.³⁰

This brings us to the second and last contention of Alabama that by reason of this mandatory decree the actual trial was prejudicially expanded beyond the theory upon which the case was to be tried. In support of this, it is urged that there “ * * * was never, at any stage of the proceeding, any indication that the case was being tried with the idea in mind that an -Order might possibly be entered requiring the Board of Registrars to register named individuals. Such being the case, no opportunity was given to the Defendants to test the qualifications of the sixty-four individuals named in the order of March 17, 1961, at any stage of the proceeding.”

There is neither technical nor substantial basis for this argument. It rests either on an unwarranted (and unrevealed) assumption in the minds of counsel for the State, or on a few isolated, disjointed bits of colloquy between Court and counsel. The formal complaint, which had precision and detail well beyond that required under the Federal Rules, carefully spelled out a prayer for just an affirmative order.³¹ And the briefs before us now show that while the case was pending undetermined after completion of the testimony, the Government in its trial brief sought such an affirmative order. It is true, of course, that the case was not one whose immediate objective was the determination of the qualification or nonqualification of specific voters as such. But while the scope of the main relief sought transcended individuals demonstrated by the evidence to have been spectacular victims of racial discrimination, there was rip legal basis for a claim of surprise that relief, otherwise proper, might be granted to individuals as well as classes.

More than that, the District Court was careful to give the State an actual opportunity to demonstrate why any one or all of the individual voters was not qualified. The initial order listed 64 voters, but in effect it gave the State ten days in which to show that any "one or more of said citizens have become deceased or possessed with some disqualification to register and vote since the date of their application or applications.” The State did this as to 14 persons with the result that ten names were deleted upon the Court's finding that such persons “are not now qualified under the law of * * Alabama to be registered as voters in Macon County * * * ”

Once it is recognized that this character of relief is within the Court's power to grant, the exercise of that power as to these 64 is not to be regarded- as unusual or startling. Of these, approximately 16 had appeared as witnesses and as to all others, the Judge heard all that the Registrars had, or claimed to have had, before them as to the qualifications of these persons. The evidence concerning the general practice followed, that as to these 16 voter-witnesses, as well as the balance reflected by the voting application questionnaires demonstrated overwhelmingly that denial of registration could not be explained apart from racial discrimination. To put it another way: had there been no race discrimination as such, these persons would have been registered. Hence, the Court ordered what the Registrars should have done under their clear duty. This was subject, of course, to the right of the State to show that as to such specified discriminatees there were other and valid reasons for disqualification.³² If Alabama had such evidence as to the 64 named, no effort was ever made to present it or request an opportunity to do so.

•Affirmed.

1 . 42 U.S.C.A. § 1971(a), (b), (c).

2 . 42 U.S.C.A. § 1971(e) and (f).

3 . The Civil Rights Act of 1960, § 601(c), 42 USCA § 1971(c), expressly authorizes suits against a State. The State of Alabama is therefore a party. Prior to this Amendment the District Court had dismissed this very cause for absence of defendants since all Registrars had resigned. 171 F.Supp. 720, M.D.Ala., 1959. We affirmed, 5 Cir., 1959, 267 F.2d 808. Pending review in the Supreme Court, the Civil Rights Act of 1957 was amended and the Supreme Court heid the Amendment effective as to this cause. It vacated the contrary judgments and remanded the case with directions to reinstate the action as to the State of Alabama. 1960, 862 U.S. 602, 604, 80 S.Ct. 924, 4 L.Ed. 2d 982. But the Supreme Court decided none of the questions now before us.

4 .We use the term indiscriminately to encompass the individual Registrars as well.

5 . See, for example, in context of the composition of Petit and Grand Juries, United States v. Harpole, 5 Cir., 1959, 263 F.2d 71, and cases collected in footnote 13 at 77.

6 . The 1960 lists showed 3105 white registrants but only 1133 Negro registrants out of approximately 11,900 Negroes of voting age. All but 50 of these were in the Tuskegee precinct (Beat No. 1).

Art. VIII, Section 178, 1901 Constitution, Amendment XCI to Art. VIII, Section 181 Code of Alabama, Title 17, Section 26 as amended Section 27(1). The full text of the State law provisions is set out as Appendix A to the District Court’s opinion, 192 F.Supp. 677 at 683-685.

8 . See note 2, District Court’s opinion, 192 F.Supp. 677 at 679, which points out that “There was no functioning Board during the periods from: June 1946 to January 1948 (18 months); February 1956 to March 1957 (14 months) ; December 1958 to May 1960 (18 months); and January 1961 (1 month).”

9 . This waiting list was referred to by witnesses and the District Court’s opinion and order as the “priority sheet,” see, e. g., 192 F.Supp. 677 at 679, and occasionally as the “appearance list.”

10 . Forty applications were received on March 17, 1958. Of these, 31 were white, 9 were Negro. All of the white applications were accepted, only 5 of the Negroes were accepted and 4 were rejected.

11 . In 1960 (during the seven months it operated), the Board received approximately 50 applications at the Courthouse made up of 32 whites, 18 Negroes. No white applicant was rejected, nearly 50% of the Negroes were, as only 10 Negroes were registered.

12 . Of course, a part of the slow-down system was the intentional allocation of a disproportionate amount of registration time to Precincts (Beats) other than Tuskegee and Beat No. 9. For example, as Appendix D to the District Court's opinion, 192 F.Supp. 677, 687, shows, Beats 1 (Tuskegee) and 9 had 3364 of the registered voters (Negro and white) for 1900. For these Beats registration days were held on only eight occasions, while for the remaining eight Beats comprising approximately 874 votes, seven registration meetings were held.

13 . See Amendment XCI, amendment to Art. VIII, Sec. 181, Constitution of 1901.

14 . Framing a questionnaire that will defy misunderstanding, misinterpretation, misapplication as to the question asked, or answers sought, is difficult if not well nigh impossible. Hence no criticism of the Alabama Supreme Court — responsible under the Constitution for preparing the questionnaire (see note 7, supra) — is expressed or meant. But much trouble was encountered with question 5 which read:

“5. If you claim that you are a bona fide resident of the State of Alabama, give the date on which you claim to have become such bona fide resident:-. (a) When did you become a bona fide resident of -- County : - (b) When did you become a bona fide resident of -- Ward or precinct -.”

Many white witnesses acknowledged that they did not know what this meant. On the other hand, time and time again rejected Negro applications showed red penciled error check marks, for such errors as the omission of the exact date of the month at which time bona fide residence commenced, or discrepancy between birth dates (listed in question 1) and the evident 21st birthday where applicants equated bona fide residence with the status of adulthood, i. e. one no longer a minor.

15 .As Appendix C to the District Court’s opinion, 192 F.Supp. 677, 686, points out, the climax was reached as to two Negro applicants.

In addition to these, the Government’s brief correctly points to other vivid illustrations. Fifteen Negroes who testified applied for registration during the 1957-1958 period; three were registered on subsequent attempts. Of the twelve who had been unable to register, seven had completed at least one letter-perfect application form. One of these 12 had a Ph.D. degree, two had at least one year's work on a Master’s Degree, three had B.S. Degrees, two had at least two years of college work, two were high school graduates, and two had at least two years of high school work.

16 . These included disparity in the writing test by requiring copying of lengthy Articles of the Constitution, failure to mail registration certificates, failure to notify applicants of rejections and the like.

17 . A Court, as Chief Justice Taft stated, would be blind not to see what “All others can see and understand.” Bailey v. Drexel Furniture Co. [Child Labor Tax case], 1922, 259 U.S. 20, 37, 42 S.Ct. 449, 66 L.Ed. 817. But “[T]here is no reason why [Courts] should pretend to be more ignorant or unobserving than the rest of mankind.” Affiliated Enterprises v. Waller, 1 Terry 28, 1 Del. 28, 5 A.2d 257, 261.

18 .As in the case of the other aspects of the decree and the fact findings of discrimination, the State does not undertake to challenge specifically the intrinsic merits as to the qualifications of these 54 Negroes ordered to be registered. The attack is on the basic ground fhnt the Court could not enter such an order, no matter how positively established were the qualifications of the individuals named. Nevertheless, we have carefully reviewed each of the Applicants’ questionnaires, etc., and readily conclude that the Judge bad ample basis for bis findings.

19 . 42 U.S.C.A. § 1971(a).

20 . 42 U.S.C.A. § 1971(c).

21 . Emphasis supplied. Responsibility for such suits is expressly, vested in the United States Attorney General.

22 . 42 U.S.C.A. § 1971(c).

23 . The United States “may institute * * * a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order.” 42 U.S.C.A. § 1971(c).

24 . Judge Bootle in United States v. Raines, M.D.Ga., 1960, 189 F.Supp. 121, 134, phrased it thus:

“The plaintiff here is the United States of America, seeking to give effect to the broad remedial purposes of the Civil Rights Act of 1957. Where a sovereign state or nation is party plaintiff, it ia sometimes more certainly entitled to specific relief than a private party might be. State of Georgia v. Tennessee Copper Co., 1907, 206 U.S. 230, 237, 27 S.Ct. 618, 51 L.Ed. 1038. Courts of equity frequently go much further both in giving and in withholding relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Virginian Ry. Co. v. System Federation No. 40, 1937, 300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed. 789; United States v. McElveen, supra.”

Judge Wright used much the same language in United States v. McElveen, E.D.La., 1960, 180 F.Supp. 10, 14, affirmed sub nom. United States v. Thomas, 1960, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535.

25 . The legislative history certainly bears out the likelihood that affirmative mandatory orders have the effect of qualifying specified persons as voters would be both necessary and properly employed. See, e. g., testimony of Attorney General Brownell in hearings before the House Committee of the Judiciary, 84 Cong., 1st Sess. incorporated into Hearings on Civil Rights Before Subcommittee No. 5 of the House Committee on the Judiciary, 85 Cong., 1st Sess., pp. 571-572; also remarks during debates on the bill, 103 Cong.Rec. 12572, 12460.

26 .See the following of many similar and more recent cases affirmatively requiring admission of Negro school children. See Pettit v. Board of Education of Harford County, Maryland, D.Md., 1960, 184 F.Supp. 452 (one pupil ordered admitted); Jones v. School Board of City of Alexandria, Virginia, E.D.Va., 1959, 179 F.Supp. 280, affirmed, 4 Cir., 1960, 278 F.2d 72 (eight pupils ordered admitted); Thompson v. County School Board of Arlington County, E.D.Va., 1958, 166 F.Supp. 529, affirmed sub nom., Hamm v. County School Board of Arlington County, Virginia, 4 Cir., 1959, 263 F.2d 226 (four pupils ordered admitted); Groves v. Board of Education of St. Mary’s County, Maryland, D.Md., 1958, 164 F.Supp. 621, affirmed, 4 Cir., 1958, 261 F.2d 527 (one pupil ordered admitted); Thompson v. County School Board of Arlington County, Virginia, E.D.Va., 1957, 159 F.Supp. 567, affirmed, 4 Cir., 1958, 252 F.2d 929, cert. denied 1958, 356 U.S. 958, 78 S.Ct. 994, 2 L.Ed.2d 1065 (seven pupils ordered admitted) ; Moore v. Board of Education of Harford County, Maryland, D.Md., 1957, 152 F.Supp. 114, affirmed sub nom., Slade v. Board of Education of Harford County, Maryland, 4 Cir., 1958, 252 F.2d 291, cert. denied 1958, 357 U.S. 906, 78 S.Ct. 1151, 2 L.Ed.2d 1157 (two pupils ordered admitted); Allen v. School Board of City of Charlottesville, Virginia, W.D.Va., 1959, 4 Race Rel.L.Rep. 881 (twelve pupila ordered admitted).

27 . By supplemental briefs Alabama has emphasized aspects of the legislative history. But the concern expressed by the Attorney General as to Giles v. Harris has to do, not with the power of the Court under the 1957 Act to enter an affirmative mandatory decree, but as to the use of voting Referees subsequent to a judicial declaration of a discriminatory practice. See Hearings on “Federal Registrars” before the Sen. Committee on Rules and Administration, 86th Cong., 2nd Sess., p. 359 and p. 51.

28 . Subsection (e) to 42 U.S.C.A. § 1971.

29 . The contrast between voter applicants who have been witnesses or about whom testimony has been given, on the one hand, and those who are discriminated against subsequent to the initial § 1971 (e) suit was pointed out by the Attorney General’s testimony. Hearings on “The Civil Eights Act of 1980” before the Senate Committee on the Judiciary, 86 Cong., 2nd Sess., p. 56. See also p. 76. Specific reference was made to the Terrell County (Georgia) case in which Judge Bootle ultimately entered the very kind of affirmative decree described in the hearings. United States v. Raines, M.D. Ga., 1960, 189 F.Supp. 121, 136.

30 . The decree of the District Court expressly refrained, for the time being, from invoking subsection (e) procedures including the appointment or use of voting Ref-rees. As briefly summarized at the outset, the Court, rather than doing this, established enforcement procedures especially tailored to this case and as to which Alabama makes no challenge here.

31 .The prayer in 11 numbered and lettered subparagraphs expressly sought an injunction enjoining the defendants from “failing or refusing to register the persons listed in ‘Exhibit A’ attached to this Complaint, and others similarly situated, and from permitting their names to remain off the current list of qualified voters in Macon County, Alabama.” (Emphasis supplied).

32 . The evidence overwhelmingly established that as to whites and Negroes, the Board acted Bolcly on the basis of the sufficiency or insufficiency of the questionnaires. In testing voter qualification, the Judge used exactly the same materials, no more and no less, but with one major difference: the Judge excluded race as a distinction.

7 . Hearings Before the Subcommittee on Constitutional Iiiglits of the Committee on the Judiciary, United States Senate, Eighty-Fifth Congress, First Session on * * * “Proposals to Secure, Protect and Strengthen Civil Rights of Persons Under the Constitution and Laws of the United StatesFebruary 14 through March 5, 1957.