LDF File Brief to Supreme Court to Vacate Jesse Fowler Death Sentence

    K o. 51

Jit th  JSttjjrcp (§mrt of th  UnM States
\ / ' .

October T erm, 1963

Dtjpuy H . A nderson et al., appellants

v.
W ade O. Martin, J r.

ON A PP E A L PROM  T E E  U NITED  S T A T E S  D IS T R IC T  COURT FOR  
TH E  E A S T E R N  D IS T R IC T  OF LO U ISIAN A

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

A RCH IBA LD  COX,
Solicitor General,

BURK E M A RSHA LL
A ssistan t A ttorney General, 

HAROLD H . G R EEN E,
EDGAR N. BROW N,

Attorneys,
D epartm ent of Justice, 

W ashington, D.C., &0580,



I N D E X
Pagro

Opinion below-------------------------------------------------------- 1
Jurisdiction-----------------------------------------------------------  1
Question presented--------------------------------------------------  1
Statute involved----------------------------------------------------   2
Statement------------------------------------- --------------------- -—  ®
Interest of the United States-------------------------------------- 5
Summary of argument--------------------------------------------- 6
Argument:

Louisiana’s compulsory racial designation of candi­
dates on an official state ballot violates the Equal 
Protection Clause of the United States Constitution 
because it encourages voters to discriminate on the 
basis of race--------------------------------------------------  I

A. The statute promotes voting discrimination
against Negro candidates------------------------- I

B. The statute is not saved merely because its
terms apply equally to all candidates---------  10

C. The statute is not a legitimate means of iden­
tifying candidates or of informing voters—  12

Conclusion-------------------------------------------------------------  14

CITATIONS
Cases:

American Communications Ass’n. v. Douds, 339 U.S.
382_________________________________________  10

Baldwin v. Morgan, 287 F. 2d 750--------------------------  9
Bates v. Little Bock, 361 U.S. 516-------------------------10,12
Douglas v. California, 372 U.S. 353----------------------- • U
Goss v. Board of Education, 373 U.S. 683----------------  11
Griffin v. Illinois, 351 U.S. 12------------------------------  11
McDonald v. Key, 224 F. 2d 608, certiorari denied, 350

U.S. 895_______________________   10
National Association for the Advancement of Colored 

Peofle v. Alabama, 357 U.S. 449------------------------- 7,10
705-184— 63 (I)



II

Cases—Continued Page
Steele v. Louisville (& Nashville B. Co., 323 U.S. 192— 7
United States v. City of Jackson, 318 F. 2d 1______  9

Constitution and statutes:
United States Constitution:

First Amendment__________   2,3
Fourteenth Amendment________________ 2,3,4,7,11
Fifteenth Amendment____ ___________________ 2,3,4

28 U.S.C. 1331_________________________   3
28 U.S.C. 1343(3)____________   3
28 U.S.C. 2201_.___          4
28 U.S.C. 2202_____________      4
28 U.S.C. 2281_________    4
28 U.S.C. 2284_______     4
42 U.S.C. 1971____     5
42 U.S.C. 1971(a)______________________________  3
42 U.S.C. 1974b______________      5
42 U.S.C. 1981_________________________________ 3
42 U.S.C. 1983_________________________________ 3

Gen. Stat. Kansas 1949 (1961 Supp.) § 25-602_________  12
Louisiana Revised Statutes:

Section 18:316_________________________________ 8
Section 18:671____________________________   8
Title 18, § 1174.1 (act No. 538,1960 Louisiana Legisla­

ture) -------------------------------------------------------- 2,3,5,12
Rev. Stat. Maine 1954, C. 5, § 5______________________  12
Ann. Code Maryland, 1957, Art. 33, § 94_______________  12
Ann. Laws Massachusetts (1962 Supp.) C. 54, § 41_______ 12
New Hampshire Rev. Stat. Ann., 1955, §59:3__________  13
Vermont Stat. Ann. 1958, Title 17, § 792(b)____________  13
West Virginia Code, 1961, § 97_________   13
Miscellaneous:

U.S. Commission on Civil Rights, The 50 States Report 
(1961) 214-215_______      9



October T erm, 1963

No. 51
D tipuy IT. A nderson et al.,; appellants

v.
W ade O. M artin, J r.

ON A PPEAL FROM  TH E  U NITED  S T A T E S  D IS T R IC T  COURT FO R  
TH E  E A S T E R N  D IS T R IC T  OF LO U ISIAN A

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

O PIN IO N  b e l o w

The opinion of the United States District Court for 
the Eastern District of Louisiana (R. 26-36) is re­
ported at 206 E. Supp. 700.

j u r i s d i c t i o n

The order denying the prayer for a permanent in­
junction is dated September 28, 1962 (R. 44). Notice 
of Appeal was filed October 25, 1962 (R. 48), and 
probable jurisdiction noted on February 18, 1963 
(R. 50). Jurisdiction of this Court to review this deci­
sion on direct appeal rests on 28 U.S.C. 1253.

q u e s t i o n  p r e s e n t e d

Whether Title 18, § 1174.1 of the Louisiana Revised 
Statutes, which provides that the official ballots in any



2

primary, general and special election shall state the 
race of each candidate, violates the Equal Protection 
Clause of the Fourteenth Amendment to the United 
States Constitution.1

STATUTE IN VO LVED

Section 1174.1 of Title 18 of the Louisiana Revised 
Statutes of 1950 (Act ISTo. 538 of the 1960 Louisiana 
Legislature) provides as follows:

A. Every application for or notification or 
declaration of candidacy, and every certificate 
of nomination and every nomination paper filed 
in any state or local primary, general or special 
election for any elective office in this state shall 
show for each candidate named therein, whether 
such candidate is of the Caucasian race, the 
Negro race or other specified race.

B. Chairman of party committees, party ex­
ecutive committees, presidents of boards of su­
pervisors of election or any person or persons 
required by law to certify to the Secretary of 
State the names of candidates to be placed on 
the ballots shall cause to be shown in such cer­
tification whether each candidate named therein 
is of the Caucasian race, Negro race or other 
specified race, which information shall be ob­
tained from the applications for or notifications 
or declarations of candidacy or from the certifi­
cates of nomination or nomination papers, as 
the case may be.

1 The United States takes no position on either of the appel­
lants’ other contentions: (1) that the statute violates the F if­
teenth Amendment, and (2) that the statute violates the First 
Amendment as it has been made applicable to the States by the 
Fourteenth Amendment.



3

C. On the ballots to be used in any state or 
local primary, general or special election the 
Secretary of State shall cause to be printed 
within parentheses ( ) beside the name of each 
candidate, the race of the candidate, whether 
Caucasian, Negro, or other specified race, which 
information shall be obtained from the docu­
ments described in Sub-section A or B of this 
Section. The racial designation on the ballots 
shall be in print of the same size as the print 
in the names of the candidates on the ballots.

STA TEM EN T

Appellants Dupuy H. Anderson and Acie J. Belton 
are citizens of the United States and of East Baton 
Rouge Parish, Louisiana. They are Negroes. Each 
sought election to the School Board of East Baton 
Rouge Parish in the Democratic Primary Election 
of July 28, 1962. On June 8, 1962, they filed a com­
plaint in the United States District Court for the 
Eastern District of Louisiana to enjoin enforcement 
of Act No. 538 of the 1960 Louisiana Legislature, 
§ 1174.1 of Title 18 of the Louisiana Revised Statutes, 
which would require appellee, the Secretary of State 
of Louisiana, to print their race in parentheses beside 
their names on all ballots to be used in the election 
(R. 1).

The complaint alleged that the statute violated the 
First, Fourteenth and Fifteenth Amendments to the 
United States Constitution, and appellants invoked 
the court’s jurisdiction under sections 1981, 1983 and 
1971(a) of Title 42, and sections 1331 and 1343(3) of 
Title 28 of the United States Code. Appellants



4

sought an injunction against enforcement of the state 
statute pursuant to 28 U.S.C. 2281 and also asked for 
declaratory relief under 28 U.S.C. 2201, 2202, for 
themselves and on behalf of all Negroes similarly sit­
uated. They requested that a three-judge court be 
convened, as provided in 28 U.S.C. 2284.

On June 11, 1962, a motion for a temporary re­
straining order was denied by the District Judge with 
whom the complaint had been filed (R. 15). On 
June 14, 1962, a three-judge court was designated 
(R. 17). Argument was heard and the case was sub­
mitted to the three-judge court on June 26, 1962 
(R. 20).

In its opinion of June 29, 1962, the court, by a two- 
to-one vote (Circuit Judge Wisdom dissenting), up­
held the constitutionality of the statute and denied a 
temporary injunction. The court held that the Louisi­
ana statute did not violate the Fifteenth Amendment 
because that Amendment applied only to denial of the 
right, to vote; and that the statute did not violate the 
Equal Protection Clause of the Fourteenth Amend­
ment because it applied to “all candidates alike” with­
out discrimination.

The Democratic Primary Election took place as 
scheduled on July 28, 1962. The Louisiana statute 
was enforced, and the appellants’ race was printed 
heside their names on the ballots. Appellant Ander­
son was defeated in the July 28 election, and appellant 
Belton was defeated in the runoff election held on 
September 1, 1962.

On September T9, 1962, appellants filed a motion 
for leave to file an amended or supplemental com­



plaint (R. 36). On the same date the motion was 
denied (R. 43). The amended complaint alleged that 
the appellants’ unsuccessful candidacies were substan­
tially influenced by the enforcement of Act No. 538 
and that each of the appellants intended to become 
candidates in the future (R. 37-42). On Septem­
ber 28, 1962, the court, incorporating the opinion of 
the three-judge court of June 29, 1962, denied appel­
lants’ prayer for a permanent injunction (R. 44). 
Judge Wisdom again dissented. Notice of appeal 
was filed on October 25, 1962, and this Court noted 
probable jurisdiction on February 18, 1963.

IN T E R E S T  OE T H E  U N IT E D  STATES

The United States has a particular interest in the 
protection of constitutional rights relating to the elec­
tive process. In the 1957 and 1960 Civil Rights Acts 
Congress authorized the Attorney General to institute 
civil actions to protect voting rights of citizens from 
discriminatory practices. 42 TT.S.C. 1971, as amended. 
Pursuant to that grant of authority, the United States 
has filed suit in more than forty counties in five States 
to enjoin Unwarranted distinctions in the right to 
vote and to prevent threats, intimidation or coercion 
in connection with the exercise of this right. Legal 
proceedings have also been instituted by the United 
States to secure inspection of voting records under 
42 U.S.C. 1974b. Finally, the United States has di­
rectly attacked the constitutionality of state voter 
qualification laws in the States of Louisiana and Mis­
sissippi.



6

Nearly all of this activity has been directed at elim­
inating various forms of state-imposed racial dis­
crimination from the voting process. Such discrim­
ination has generally taken the guise of restrictions 
upon the rights of Negro citizens to register and to 
cast a ballot. But other types of state regulation may 
equally affect the integrity of the elective franchise 
and may impermissibly inject racial distinctions into 
the voting process. For the reasons developed in this 
brief, we believe that this is the necessary consequence 
of the legislation at issue here.

SUM M ARY OF ARG UM EN T

The district court held that the appellants were not 
denied the equal protection of the laws by the Louisi­
ana statute because (1) the races of all candidates are 
designated on the official ballot, and (2) the statute 
does not produce any “ actual discrimination” other 
than by private individuals “ wholly beyond the con­
trol of the state.” In our view, the statute, by con­
centrating exclusively on the single factor of the can­
didate’s race, has the necessary consequence of facili­
tating, encouraging and promoting discrimination by 
voters against candidates of the Negro race. The 
equal treatment afforded by the statute is illusory 
only, sinee none but a Negro candidate is likely to be 
injured by the labeling requirement. The State has 
a heavy burden when it seeks to justify the use of a 
racial designation. Here, that burden cannot be met, 
for it cannot be said that a statute which singles out 
race alone as a fact to be stated on the ballot is genu­
inely concerned with identifying the candidate or



7

informing the electorate. I t follows that the enforce­
ment of Louisiana’s statute denies to candidates of 
the minority race the equal protection of the State’s 
laws.

A RG UM EN T

LOUISIANA’S COMPULSORY RACIAL DESIGNATION OF CANDI­
DATES ON AN OFFICIAL STATE BALLOT VIOLATES THE 
EQUAL PROTECTION CLAUSE OF THE UNITED STATES CON­
STITUTION BECAUSE IT ENCOURAGES VOTERS TO DISCRIM­
INATE ON THE BASIS OF RACE

A. THE STATUTE PROMOTES VOTING DISCRIMINATION AGAINST NEGRO
CANDIDATES

In the present case, as in National Association for 
the Advancement of Colored People v. Alabama, 357 
U.S. 449, 463, “ [t]he crucial factor is the interplay of 
governmental and private action.” I t  is clear that an 
individual Louisiana citizen is free to cast his vote for 
whomever he likes. His private choice is unfettered 
by the Fourteenth Amendment, and it may be deter­
mined entirely by racial prejudices. On the other 
hand, it is equally obvious that the State of Louisiana 
may not affirmatively bar Negro citizens from holding 
public office merely on account of their race. Such 
discrimination by the State, based upon a classifica­
tion which this Court has declared to be “ obviously ir­
relevant and invidious” (Steele v. Louisville & Nash­
ville B. Co., 323 U.S. 192, 203), would violate the 
Equal Protection Clause of the Fourteenth Amend­
ment.

This case falls between the two extremes. The 
State of Louisiana has not, by this statute, directly



s

imposed an y  restraint upon a Negro’s candidacy, nor 
has it, by the self-executing force of any statute or 
regulation, reduced a Negro’s chances of election. 
But the statute indirectly, but nonetheless inevitably, 
discourages Negro citizens from becoming candidates 
for public office and reduces the probabilities of a 
Negro’s election by compelling all candidates to ad­
vertise their race on the ballot.

The contents and form of the official ballot used in 
general and primary elections in the State of Louisi­
ana are prescribed by statute. La. Rev. Stat. 
§§ 18: 316, 18: 671. Before 1960, when the statute here 
in question was enacted, primary ballots contained no 
information concerning any of the candidates other 
than their names. General election ballots also 
grouped the candidates according to the political 
parties which they represented. The effect of the 
1960 amendment was to add to the ballot a single item 
of information—the. race of each of the candidates. 
Consequently, Louisiana’s primary ballots now con­
tain only the names of the candidates and each one’s 
race. On general election ballots, candidates are 
grouped according to party affiliation, and racial des­
ignations follow their names.

By attaching only a racial label to the otherwise un­
adorned name of each candidate on the official ballot, 
the State of Louisiana implies to its voting citizenry 
that the candidate’s race is or should be an important 
element in the voter’s choice. By placing the racial 
designation upon the very document on which the 
voter expresses his choice, the State directs the voter’s



9

attention to this single consideration at the most crit­
ical moment in the entire electoral process—the in­
stant at which the vote is cast. The inevitable effect 
of this practice is to encourage individual voter- 
citizens to cast their ballots along racial lines. Since 
Negroes constitute a distinct racial minority among 
Louisiana’s voters,2 they are the ones who are injured 
if the State’s emphasis on race succeeds in encouraging 
voting on racial lines.

By requiring a racial label on the ballot, Louisiana 
promotes private racial discrimination by voters 
in the same manner as a State might promote racial 
segregation by requiring or supplying signs to designate 
separate Negro and white facilities in privately owned 
places of public accommodation. In United States v. 
City of Jackson, 318 F. 2d 1 (C.A. 5), it was argued that 
such signs were merely “a helpful hint” and that they 
“ just: assist members of both races in the voluntary 
separation of the races.” Quoting from its opinion 
in Baldwin v. Morgan, 287 F. 2d 750, the Court of 
Appeals for the Fifth Circuit stated (318 F. 2d at 8):

I t is simply beyond the constitutional compe­
tence of the state to command that any facility 
either shall be labeled as or reserved for the ex­
clusive or preferred use of one rather than the 
other of the races. * * * [Emphasis added.]

2 The report of the Commission on Civil Eights states that 
as of December 31, 1960, there were 992,684 registered white 
voters in Louisiana and 158,765 Negro voters. In East Baton 
Rouge Parish, where the appellants ran for office, the figures 
were 66,041 white voters and 10,573 Negroes. IT.S. Comin’n on 
Civil Rights, The 50 States Report (1961) 21T-215.



10

The State’s involvement is the same in the case of 
the State’s ballot as it is in the case of the State’s 
sign. Each is ineffective unless a private individual 
supplements it with private discrimination. But in 
each instance it is the State which has pointed the 
way.

The “indirect” restraint which this labeling require­
ment imposes upon a Negro’s candidacy is very much 
like the consequences which this Court observed would 
follow from “ [a] requirement that adherents of particu­
lar religious faiths or political parties wear identify­
ing arm-bands.” American Communications Ass’n v. 
Douds, 339 U.S. 382, 402. Although an arm-band 
requirement would not directly stifle speech and would, 
in fact, impart truthful information concerning the 
wearer’s affiliation, repressive consequences would re­
sult from the combination of “state power” and “pri­
vate action.” See National Association for the Ad­
vancement of Colored People v. Alabama, 357 U.S. 
449, 463; Bates v. Little Rock, 361 U.S. 516, 524. 
Similarly, the labeling provision of the Louisiana 
statute, when considered in light of “ private attitudes 
and pressures,” ibid., has a clearly coercive effect on 
the candidacy of Negro citizens for public office.
B. THE STATUTE IS NOT SAVED MERELY BECAUSE ITS TERMS APPLY 

EQUALLY TO ALL CANDIDATES

The district court observed that pursuant to the 
statute in question “all candidates must state their 
race and have it printed on the ballot” (R. 32). On 
this basis, it concluded that the Louisiana statute was 
“nondiseriminatory,” and distinguished the decision of 
the Tenth Circuit in McDonald v. Key, 224 F. 2d 608,



11

certiorari denied, 350 U.S. 895, which had declared 
unconstitutional a similar labeling provision appli­
cable only to Negro candidates.

The district court’s conclusion was erroneous. The 
guarantee of the Equal Protection Clause of the Four­
teenth Amendment is not limited to express statutory 
classifications. As this Court noted in Griffin v. I l­
linois, 351 U.S. 12, 17 n. 11, “a law nondiscriminatory 
on its face may be grossly discriminatory in its 
operation.” Griffin v. Illinois and many of this 
Court’s decisions regarding the constitutional rights 
of indigent defendants in the state courts, culminat­
ing with Douglas v. California, 372 U.S. 353, decided 
last Term, attest to the proposition that the constitu­
tionality of state action under the Equal Protection 
Clause must be measured by the necessary effect 
of the State’s conduct, and not merely by the language 
of its law.

In the present case, the equal treatment which the 
Louisiana statute affords to Negro and Caucasian 
candidates is illusory only. Obviously, the racial per­
centages of Louisiana’s voting population being what 
they now are,3 Caucasian candidates have little to 
lose if their race is displayed on the official ballot. 
Negro candidates, on the other hand, are likely to 
encounter discrimination. Hence, as in Goss v. Board 
of Education, 373 U.S. 683, 688, “ [t]he alleged equality 
[is] * * * only superficial.” The full extent of the 
statute’s “nondiscriminatory” nature is that Louisiana 
law now equally compels both Negro and white candi­
dates to suffer at the polls from racial prejudice.

3 See note 2, p. 9, supra.



12

O. THE STATUTE IS HOT A LEGITIMATE MEANS OE IDENTIFYING 
CANDIDATES OR OF INFORMING VOTERS

We may assume, for purposes of argument, that if 
Louisiana could demonstrate a legitimate interest in 
displaying only the race of each of its candidates for 
public office next to the candidate’s name on the of­
ficial ballot, such a showing might save Act No. 538. 
See, e.g., Bates v. Little Rock, supra, at 524. How­
ever, the burden of justifying a racial designation is 
a heavy one. And when, as here, the integrity of the 
electoral process is involved, the burden should be 
heavier still. We submit that there is no compelling 
interest to warrant the racial designation required by 
Louisiana.

There is no substance to the argument that the 
State was concerned with further identifying the 
names on the ballot so as to enable voters to relate 
the names with actual living persons whom they have 
seen or heard during an election campaign. Although 
physical description may be one means of making 
such an identification, the bare racial label is surely 
inadequate for this purpose. At best, it is a group 
identification which serves only to classify the person 
so described as the “white” or “Negro” candidate— 
precisely the “invidious” distinction which the State 
may not promote. See p. 7, supra.

In some States identifying information other than 
the names of the candidates appears on the ballot; 4 
Louisiana is the only State which uses a racial label.

4 E.g., Gen. Stat. Kansas 1949 (1961 Supp.) §25-602 (resi­
dence) ; Kev. Stat. Maine 1954, C. 5, § 5 (residence); Ann. 
Code Maryland, 1957, Art. 33, § 94 (residence); Ann. Laws



13

Data concerning a candidate’s address, his occupa­
tion, or the fact of his incumbency is far more helpful 
in making a specific identification than is a racial 
designation. Since most candidates are white, the 
‘■‘Caucasian” label has almost no significance what­
ever. If, as was true here, more than one Negro can­
didate runs for office, the “ Negro” label merely nar­
rows the (field. And if physical description is deemed 
most appropriate, there are surely many more spe­
cific physical characteristics which contribute to indi­
vidual identification than the candidate’s race. At 
best, Louisiana might use race as one of several identi­
fying features. Its isolation on the official ballot is 
susceptible of only one interpretation—a design to en­
courage voting along racial lines—and eamiot be 
j ustified by the minimal assistance it lends to the identi­
fication of the candidates.

Equally without merit is any claim that the State is 
interested in informing the electorate of the personal 
traits of each candidate, so that the voters might have 
these considerations in mind when they decide whom 
to select. The bare racial label on the official ballot 
cannot serve this purpose. I t imparts only the sort 
of information which invites “invidious” discrimina­
tion. See p. 7, supra. Standing alone, as it does 
on the Louisiana ballot, it is of no other significant 
informational value, as it perhaps might be in the 
context of a detailed biography of the candidate.
Massachusetts (1962 Supp.) C. 54, § 41 (residence and in­
cumbency) ; New Hampshire Rev. Stat. Ann., 1955, § 59 :-3 (resi­
dence) ; Vermont Stat. Ann., 1959, Title 17, § 792(b) (residence); 
West Virginia Code, 1961, §97 (residence).



14

Moreover, if Louisiana’s purpose were to convey bio­
graphical information to its voters so as to enable them 
to make an educated choice, it could accomplish this 
objective far more effectively by distributing such a 
biography well in advance of the actual vote. The 
damaging effect of the racial label on the ballot is sub­
stantially greater than its minimal contribution to the 
public’s last-minute knowledge of the candidates.

CONCLUSION

Wherefore, it is respectfully submitted that the 
judgment of the district court should be reversed.

A rchibald Cox,
Solicitor General. 

B urke Marshall,
!Assistant Attorney General. 

H arold H . Greene,
E dgar N. B rown,

Attorneys.
September 1963.

U S . GOVERNMENT PRINTING 0 F F IC E :!9 6 S