Pleadings Hardback Index #3

    Is r  t h e

(Esmxt of %  lu itxb BtaUs
October T eem , 1962 

No...............

D xjpxjy H. A nderson and A cie J. B elton ,

Appellants,
—v.—

W ade 0 .  M artin , J r.,
Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

JURISDICTIONAL STATEMENT

M ichael M eltsner 
N orman C. A maker 

Of Counsel

J ack Greenberg 
J ames M. N abrit, III 

10 Columbus Circle 
New York 19, New York

J o h n n ie  A. J ones

530 South 13th Street 
Baton Rouge 2, Louisiana

M u rph y  W. B ell 
B ruce A . B ell 
L eonard P. A very 
S amuel D ick ens  
W ilm on  L. R ichardson

Baton Rouge, Louisiana
Attorneys for Appellants



I N D E X
PAGE

Citation to Opinion Below..............................................  1

Jurisdiction ...................................................................  2

Statute Involved ............................................................  2

Question Presented......................................................... 3

Statement of the Case.....................................................  4

The Question Presented Is Substantial .....................  6

Co n c l u s io n ........................................................................................  12

A ppendix  .............................................................................................  13

Opinions Below..............................................................  13

Judgment .......................................................................  24

T able of Cases

Brown v. Board of Education, 347 U. S. 483 .............. 10

Florida Lime and Avocado Growers v. Jacobsen, 362 
U. S. 73 .......................................................................  2

Garner v. Louisiana, 368 U. S. 157................................. 9

Hall v. St. Helena Parish School Board, 197 F. Supp.
649 (E. X). La. 1961), affd 368 U. S. 515.................  9

Hirabayashi v. United States, 320 U. S. 81 .................  9



11

PAGE

Kessler y. Department of Public Safety, 369 II. S. 153 2
Korematsu v. United States, 323 U. S. 214.................  8

McDonald v. Key, 125 F. Supp. 775 (W. D. Olda.,
1954)...................................................... ......................  6, 7

McDonald v. Key, 224 F. 2d 608 (10th Cir. 1955), cert, 
denied 350 U. S. 895 ................................................. 6, 7, 8

N. A. A. C. P. v. Alabama, 357 U. S. 449 ........................  11
Nixon y. Herndon, 273 U. S. 536 ...................................  11

Plessy v. Ferguson, 163 U. S. 537 ................................ 10

Shelley v. Kraemer, 334 U. S. 1 .........     10

United States v. Reese, 92 U. S. 214............................  11

S tatutes

28 United States Code, §1253 ................................ 2
28 United States Code, §§1331, 1343(3) .................  2
28 United States Code, §§2281, 2284 ..................... 2
42 United States Code, §§1971a, 1981, 1983 ..........  2
La. R. S. 18:117.1 ..............................................2, 3, 6, 9



Is r  t h e

Bupnm? Glimrt of %  HUmtvb Staten
October T erm , 1962 

No...............

D u pu y  H. A nderson and A cie J. B elton ,

Appellants,

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

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

JURISDICTIONAL STATEMENT

Appellants, Dupuy H. Anderson and Acie J. Belton, ap­
peal from the order of the United States District Court 
for the Eastern District of Louisiana entered on October 
3, 1962 denying a permanent injunction against the en­
forcement of a statute of the State of Louisiana which 
requires the designation of the race of candidates for elec­
tive office on nominating papers and ballots. They submit 
this statement to show that the Supreme Court of the 
United States has jurisdiction of the appeal and that a 
substantial question is presented.

Citation to Opinion Below

The opinion of the United States District Court for the 
Eastern District of Louisiana (R. 53) denying a prelimi­
nary injunction was rendered on June 29, 1962 and is re-



2

ported at 206 F. Supp. 700. The dissenting opinion of 
Circuit Judge Wisdom (R. 50) is reported at 206 F. Supp. 
705. These opinions are reprinted in the appendix hereto 
at pp. 13 and 21, respectively. No further opinion was 
rendered with the final order, entered Oct. 3, 1962 (R. 70).

Jurisdiction

This suit was initiated in the United States District 
Court for the Eastern District of Louisiana to enjoin the 
enforcement of La. R. S. §18:1174.1 (Act No. 538 of the 
1960 Regular Session of the Louisiana Legislature). It 
was brought pursuant to 28 U. S. C. §§1331, 1343(3) and 
42 U. S. C. §§1971a, 1981, 1983, and was heard by a three 
judge court convened under 28 U. S. C. §§2281 and 2284.

The order of the District Court denying the prayer for 
issuance of a permanent injunction is dated September 28, 
1962 and the time of its entry is October 3, 1962 (R. 70; 
see appendix infra, p. 24). Notice of Appeal to this Court 
was filed in the District Court on October 25, 1961 (R, 79). 
Jurisdiction of the Supreme Court to review this decision 
by direct appeal is conferred by 28 U. S. C. §1253.

The following cases sustain this Court’s jurisdiction on 
direct appeal: Florida Lime and Avocado Growers v. Jacob­
sen, 362 U. S. 73; Kessler v. Department of Public Safety, 
369 U. S. 153.

Statute Involved

La. R. S. §18:1174.1 enacted as Act No. 538 of the 1960 
Regular Session of the Louisiana Legislature. It is printed 
in volume 2 of the Louisiana Revised Statutes, 1960 Sup­
plement, p. 385. The statute provides as follows:



3

Designation of race of candidates on paper and bal­
lots—A. Every application for or notification or dec­
laration of candidacy, and every certificate of nomina­
tion and every nomination paper filed in any state or 
local primary, general or special election for any elec­
tive office in this state shall show for each candidate 
named therein whether such candidate is of the Cau­
casian race, the Negro race or other specified race.

B. Chairman of party committees, party executive 
committees, presidents of boards of supervisors of 
election or any person or persons required by law to 
certify to the Secretary of State the names of candi­
dates to be placed on the ballots shall cause to be 
shown in such certification 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 dec­
larations of candidacy or from the certificates of nomi­
nation or nomination papers, as the case may be.

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 
documents 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.

Question Presented

Whether La. R. S. §18:1174.1 (Act No. 538 of the 1960 
Regular Session of the Louisiana Legislature) which pro­
vides for the designation of the race of candidates for elec-



4

tive office on nomination papers and ballots in all primary, 
general or special elections violates the equal protection 
and due process clauses of the Fourteenth Amendment, 
and the Fifteenth Amendment to the Constitution of the 
United States.

Statement of the Case

Appellants, Negro citizens of the United States and the 
State of Louisiana, and residents of the Parish of East 
Baton Rouge, Louisiana, were candidates for nomination 
to the office of School Board member of the Parish of East 
Baton Rouge in the Democratic Party primary election 
held on July 28, 1962. They filed a complaint in the Dis­
trict Court for the Eastern District of Louisiana on June 
8,1962 to enjoin the enforcement of Act No. 538 of the 1960 
Regular Session of the Louisiana Legislature, naming as 
defendant the Secretary of State of the State of Louisiana 
who, by the terms of the statute, was charged with its en­
forcement (R. 1). Asserting that the statute violated the 
First, Fourteenth, and Fifteenth Amendments to the Con­
stitution of the United States, plaintiffs prayed for pre­
liminary and permanent injunctions and a temporary 
restraining order. They also asked that a three-judge court 
be convened pursuant to 28 U. S. C. §§2281, 2284.

On June 11, 1962 the Motion for Temporary Restraining 
Order was denied by District Judge West, and thereafter 
a three-judge court was convened (R. 13; 18).

The cause was heard on June 26, 1962 before the three- 
judge court. At the hearing an Answer was filed admitting 
many facts alleged in the complaint (R. 31). Defendant 
also moved to dismiss for lack of jurisdiction (R. 28). The 
court recessed to consider its jurisdiction and having con­
cluded that the case was properly before it reconvened to 
hear the merits (R. 54).



5

In open court the parties stipulated that the defendant 
was a ministerial officer required to follow R. S. §18:1174.1 
and that he caused the ballots to be printed in accordance 
with the provisions of the statute (R. 76-77). After argu­
ment, the motion for preliminary injunction was denied by 
the court on June 26, 1962 with Judge Wisdom dissenting 
(R. 25). Thereafter, on June 29, 1962 the majority and 
dissenting opinions were filed.

On September 19,1962 District Judge West denied plain­
tiffs’ Motion for Leave to File a proposed Amended or 
Supplemental Complaint, which alleged that the aforemen­
tioned primary election was held on July 28, 1962 and that 
in accordance with the statute in issue the race of appellant 
was noted beside their names on the ballot (R. 66); that 
appellant Anderson was defeated in the primary and appel­
lant Belton was defeated in a subsequent run-off election 
held September 1, 1962 (R. 66); that appellants’ unsuc­
cessful candidacies were substantially influenced by the 
operation and enforcement of the statute (R. 66); that 
appellants “intend to be candidates in the next duly con­
stituted democratic primary election for nomination as 
members of the East Baton Rouge Parish School Board 
and further that they intend to seek other public office” in 
the parish and state in the future (R. 66).

On September 28, 1962, the District Court signed, and 
on October 3,1962, entered a final order denying the prayer 
for permanent injunctive relief (R. 70). This order incor­
porated by reference the opinion of June 29,1962, and again 
Judge Wisdom noted his dissent.

Notice of Appeal was filed in the District Court on Octo­
ber 25, 1962 (R. 79).



6

The Question Presented Is Substantial

La. E. S. §18:1174.1 requires all candidates for elective 
office in every election in Louisiana to state on every ap­
plication for or notification or declaration of candidacy 
whether they are “of the Caucasian race, the Negro race, 
or other specified race.” It requires the Secretary of State 
to print the racial description so obtained in parentheses 
beside the name of every candidate on the ballots used “in 
any state or local, primary, general or special election.” 
Plaintiffs, both candidates for office in a primary election 
as well as being qualified voters, sued to enjoin the Secre­
tary of State from enforcing this law by making the re­
quired racial designation on the ballot.

The majority of the court below, District Judges West 
and Ellis, held the statute valid and enforceable as not 
repugnant to the Fourteenth or Fifteenth Amendments 
to the Constitution of the United States. The majority 
opinion by Judge West undertakes to distinguish the Louisi­
ana statute in suit from a similar Oklahoma law which was 
held unconstitutional in McDonald v. Key, 224 F. 2d 608 
(10th Cir. 1955), cert, denied 350 U. S. 895.1

The opinion below held that while the Oklahoma law 
required that the race of candidates be designated on bal­
lots only if they were “other than of the white race” and 
thus treated Negroes differently from other candidates, 
the Louisiana statute was sufficiently different to be valid 
since it required that candidates of all races be so desig­
nated on the ballot. The majority also held that a candi­
date has no right not to have his race disclosed and that 
the court was “not disposed to create a shield against the

1 This opinion reversed a District Court opinion upholding 
the Oklahoma statute at 125 F. Supp. 775 (W. D. Okla. 1954).



7

brightest light of public examination of candidates for pub­
lic office” (R, 57).

Circuit Judge Wisdom adopted a contrary view and 
agreed with appellants’ contention that McDonald v. Key, 
supra, could not be distinguished in principle. As he ob­
served, and as petitioners submit is altogether obvious, 
“the omission of any racial designation on . . . [an Okla­
homa] ballot amounted to the candidate identifying him­
self as a white man just as surely as a Negro candidate 
would identify himself by the word ‘Negro’ after his name. 
The result was essentially the same result intended to be 
accomplished by the Louisiana statute” (R. 51).2

Indeed, the trial court in McDonald v. Key, 125 F. Supp. 
775, 777 (W. D. Okla. 1954), relied on this asserted equality 
in treatment in upholding the Oklahoma statute using rea­
soning very similar to that of the court below in the pres­
ent case. The Oklahoma District Court said that placing 
the word “Negro” on the ballot was “merely descriptive 
and properly serves to inform the electors of the fact that 
the candidate is of African descent,” and added that it 
“likewise serves to inform the voters that the other candi­
dates are members of the ‘white race’ ” (Id. at 777).

While the Tenth Circuit’s decision in McDonald v. Key 
found a denial in equal treatment with respect to Negroes 
who run for office in that their race was placed on the 
ballot while the race of other candidates was not (224 F. 
2d at 610), it is submitted that the opinion below conflicts 
in principle with the decision in McDonald v. Key, supra, 
and that this conflict between a Court of Appeals and a 
statutory three-judge District Court demonstrates that the 
question involved here is substantial.

2 Under the Oklahoma Constitution the “white race” included 
all persons except Negroes. See McDonald v. Key, 224 F. 2d 608, 
609 (10th Cir. 1955).



8

It is submitted that Judge Wisdom’s dissent in this case 
effectively states the appropriate constitutional principles 
which should decide the issue and demonstrates that the 
result reached in McDonald v. Key, supra, is the correct 
one.

The Louisiana law’s requirement that a candidate state 
his race in order to gain a place on the ballot and that the 
Secretary of State print each candidate’s race in paren­
theses beside his name on the ballot infringes the liberty 
of citizens and introduces a racial classification into the 
electoral process while serving no legitimate end of the 
State. Neither the State nor the court below has asserted 
any legitimate governmental purpose to be served by the 
required disclosure and designation. To be sure, it is said 
that this designation informs the electorate, but no one has 
said what state objective this accomplishes. A state might 
rationally require that a candidate disclose and that the 
voters be told of his qualifications for office, or indeed, 
perhaps, even of his views on issues relating to the office 
sought. But, racial designations have no rational relation­
ship to candidates’ qualifications and the State has no 
business placing its power and prestige behind a system of 
racial identification of citizens. Electors may often cast 
their ballots on the basis of the candidate’s race, religion, 
national origin, or other factors not related to his qualifica­
tions for office, but it is no legitimate object of the state 
to feed or stimulate such prejudices in the elections it 
conducts.

Indeed, racial classifications so rarely have any rational 
connection with any legitimate objects of government as 
to be “immediately suspect” necessitating “the most rigid 
scrutiny.” Korematsu v. United States, 323 U. S. 214, 216. 
“Distinctions between citizens solely because of their an­
cestry are by their very nature odious to a free people



9

whose institutions are founded upon the doctrine of equal­
ity.” Hirabayashi v. United States, 320 U. S. 81, 100.

Beyond the absence of any valid state purpose in compel­
ling candidates to declare their race and in putting a racial 
stamp on them, thus requiring them to run for office as 
Negroes or as whites, this statute must be viewed in the 
context of Louisiana’s well-known policy of racial discrimi­
nation against Negroes. This Court’s attention has been 
repeatedly drawn to various manifestations of Louisiana’s 
officially declared policy of racial separation all designed 
to brand Negroes as inferiors to be set apart from whites 
by the State.3

Having legally branded Negroes as an inferior race 
by a host of laws and practices applied throughout com­
munity life, Louisiana now, by R. S. §18:1174.1 insures 
that the public will identify as such any individual member 
of the state-designated “inferior race” who seeks public 
office. In the context of this state policy, it is plainly no 
answer to say that Caucasians are also required to make 
similar self-identifications and to be racially designated on 
the ballots. To be labelled as a member of the dominant 
majority racial group is quite a different thing than to 
be labelled as a member of a legally disadvantaged minority 
race. As Judge Wisdom wrote in Hall v. St. Helena Parish 
School Board, 197 F. Supp. 649, 655 (E. D. La. 1961), aff’d 
368 U. S. 515:

To speak of this law as operating equally is to equate 
equal protection with the equality Anatole France 
spoke of: “The law in its majestic equality, forbids the 
rich as well as the poor to sleep under bridges, to beg 
in the streets, and to steal bread.”

3 See the discussion of Louisiana’s policy in Mr. Justice Douglas’s 
concurring opinion in Garner v. Louisiana, 368 U. S. 157, 181.



10

This Court rejected a parallel argument saying that “equal 
protection of the laws is not achieved through indiscrimi­
nate imposition of inequalities.” Shelley v. Kraemer, 334 
U. S. 1, 22.

The majority of the Court that decided Plessy v. Fergu­
son, 163 U. S. 537, 551, subscribed to the view that segre­
gation laws, such as the Louisiana railroad segregation 
laws and the similar laws that remain in that State, did 
not stamp Negroes as inferior, but rather, that it was Ne­
groes themselves who placed that construction upon them. 
Brown v. Board of Education, 347 U. S. 483, rejected this 
notion holding that segregation laws did, indeed, have 
their intended result, namely, to disadvantage Negroes, the 
racial minority set apart by the State. The Brown case 
vindicated the first Justice Harlan’s dissent in Plessy, 
supra at 554, where he wrote:

In respect of civil rights, common to all citizens, the 
Constitution of the United States does not, I think, 
permit any public authority to know the race of those 
entitled to be protected in the enjoyment of such 
rights . . . But I deny that any legislative body or ju­
dicial tribunal may have regard to the race of citizens 
when the civil rights of those citizens are involved.

Mr. Justice Harlan further expounded his view that the 
post-Civil War amendments to the Constitution “removed 
the race line from our governmental systems” (Id. at 555), 
stating in often quoted language that:

But in view of the Constitution, in the eye of the law, 
there is in this country no superior, dominant, ruling 
class of citizens. There is no caste here. Our Consti­
tution is color-blind and neither knows nor tolerates 
classes among citizens. In respect of civil rights, all 
citizens are equal before the law. The humblest is the 
peer of the most powerful. The law regards man as



11

man, and takes no account of his surroundings or of 
his color when his civil rights as guaranteed by the 
supreme law of the land are involved (at 559).

As Judge Wisdom’s opinion indicated, racial classifica­
tions are particularly inappropriate in the electoral process. 
“If there is one area above all others where the Constitu­
tion is color-blind, it is the area of state action with respect 
to the ballot and the voting booth” (206 F. Supp. at 705). 
Cf. Nixon v. Herndon, 273 U. S. 536, 541. The purpose of 
the Fifteenth Amendment to “forbid all discriminations 
between white citizens and citizens of color in respect to 
their right to vote” (United States v. Reese, 92 IT. S. 214, 
226) and to proscribe denials or abridgements of the right 
on the basis of race is patent.

Although this particular Louisiana law does not operate 
directly to disfranchise Negroes or affect their entitlement 
to vote and participate in the system of self-government, it 
does affect their votes by injecting racism into the electoral 
process in a manner calculated to stimulate the same racial 
animosities otherwise encouraged by Louisiana’s segrega­
tion laws. Louisiana thus encourages racial discrimination 
by voters. Such an indirect effort to limit Negro participa­
tion in government accomplishes the same objective as an 
abridgement or denial of the franchise on the basis of race. 
That this result will flow from the racially motivated 
choices of voters does not make it any less repugnant to 
the Constitution since governmental action under R. S. 
18:1174.1 initiates the chain of events resulting in the dis­
crimination, and this interplay of governmental and pri­
vate action makes it more likely to occur. Cf. N. A. A. C. P. 
v. Alabama, 357 U. S. 449, 463.

Finafiy, the fact that this statute might operate to ben­
efit a Negro candidate and against a white candidate in a 
community, unlike East Baton Rouge where plaintiffs re-



12

side, which had a Negro electoral majority, is not relevant. 
For, it is submitted that the State has a duty under the 
Fifteenth Amendment and the Fourteenth Amendment to 
be “color-blind” and not to act so as to encourage racial 
discrimination in the electoral process against any racial
group.

CONCLUSION

It is respectfully prayed that the Court should review 
the judgment of the District Court and enter a judgment 
reversing the decision below.

Respectfully submitted,

M ichael M eltsner  
N orman C. A maker 

Of Counsel

J ack Greenberg 
J ames M. N abrit, III 

10 Columbus Circle 
New York 19, New York

J o h n n ie  A. J ones

530 South 13th Street 
Baton Rouge 2, Louisiana

M u rph y  W. B ell 
B ruce A. B ell 
L eonard P. A very 
S amuel D ickens  
W ilm on  L. R ichardson

Baton Rouge, Louisiana
Attorneys for Appellants



APPENDIX



APPENDIX

U nited  S tates D istrict Court 

D istrict of L ouisiana 

Civ. A. No. 2623 
June 29, 1962

D upuy H. A nderson and A cie J. B elton ,

v.
Complainants,

W ade 0 .  M artin , J r.,
Defendant.

Opinion

Before W isdom, Circuit Judge, and W est and E llis , 
District Judges.

W est, District Judge.
In 1960 the Louisiana Legislature enacted legislation 

requiring the Secretary of State to place a racial designa­
tion over the name of every candidate on the ballot in 
the primary or general election.1 Under the statute the

1 LSA-R.S. Sec. 18:1174.1, Act 538 of 1960.
“Sec. 1174.1 Designation of race of candidates on paper 

and ballots—A. Every application for or notification or dec­
laration 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. Chairmen of party committees, party executive com­
mittees, presidents of boards of supervisors of election or any



14

candidate must place his name and racial designation on 
his certificate of candidacy and the Secretary of State uses 
that information in preparing the ballot. The designation 
applies to all candidates. The Statute requires that the 
designation of “Caucasian”, “Negro”, or “other specified 
race” be placed on the ballot after the name of each can­
didate.

Plaintiffs are two Negro candidates for the school board 
in East Baton Rouge Parish, State of Louisiana. They 
challenge the constitutionality of this statute under the 
First, Fourteenth and Fifteenth Amendments to the United 
States Constitution and request injunctive relief against 
the Secretary of State prior to the July 28, 1962, Demo­
cratic primary.

The District Judge denied a temporary restraining order 
and thereafter a three-judge court was convened pursuant 
to 28 U. S. C. A. § 2284. Defendant filed his answer together 
with a motion to dismiss for lack of jurisdiction in court on 
the day of the hearing. The court recessed to consider its 
jurisdiction and having concluded that it had jurisdiction,2 
the court reconvened to hear the merits. The parties

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 certification whether each 
candidate named therein is of the Caucasian race, Negro race 
or other specified race, which information shall be obtained 
from the applications for or notifications or declarations of 
candidacy or from the certificates of nomination or nomination 
papers, as the case may be.

“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 documents described in Subsection 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.”

2 Jurisdiction is properly invoked under 28 U. S. C. A. §§ 1331, 
1343(3), and 42 U. S. C. A. §§ 1971(a), 1981, 1983.



15

stipulated that the facts were as stated in plaintiffs’ com­
plaint ; the case proceeded to argument, and was submitted.

At the outset it is important to grasp the fundamental 
relationships of the parties. Plaintiffs are candidates for 
office and the rights they advance arise out of that status. 
Secondly, the statute in question is a state statute and 
applies to all. While it requires the Negro to have his race 
disclosed on the ballot, it requires the same of the Cau­
casian, Mongolian, and so on. The garden variety dis­
crimination between white and Negro is not involved. 
Moreover, the state adopts no “sophisticated” method of 
discrimination that might give us pause.3 The sole question 
is whether the constitutional rights of a Negro candidate 
are abridged when his race, like that of all other candidates, 
is disclosed on the ballot pursuant to state statute.

Precisely which constitutional rights plaintiffs advance is 
somewhat difficult to determine. Certainly the Fifteenth 
Amendment gives plaintiffs no comfort. While the Four­
teenth Amendment apparently protects rights broader than 
those originally conceived by its drafters due to the Equal 
Protection and Due Process clauses,4 the Fifteenth Amend­
ment is direct in its protection.5 It is exclusively the right 
to vote, and nothing more, which, in terms, is protected. 
Surely the statute must be interpreted in such a way as to 
protect the fundamental power of the franchise in whatever 
context a State bent on discrimination seeks to cast it.6 But

3 See Lane v. Wilson, 307 U. S. 268, 59 S. Ct. 872, 83 L. Ed. 1281.
4 Brown v. Board of Education, 347 II. S. 483, 74 S. Ct. 686, 98 

L. Ed. 873; Bolling v. Sharpe, 347 U. S. 497, 74 S. Ct. 693, 98 L. 
Ed. 884.

5 U. S. Constitution Amend., XV.
“Section 1. The right of citizens of the United States to vote 

shall not be denied or abridged by the United States or any State 
on account of race, color, or previous condition of servitude.”

6 Terry v. Adams, 345 U. S. 461, 73 S. Ct. 809, 97 L. Ed. 1152; 
United States v. Classic, 313 U. S. 299, 61 S. Ct. 1031, 85 L. Ed. 
1368.



16

at no time has the Supreme Court expanded the protection 
of the amendment beyond the franchise. Even with the 
recognition that the Fifteenth Amendment created affirma­
tive rights,7 the court has not gone beyond the protection 
of the voter per se. Likewise, McDonald v. Key,s which is 
urged on us as controlling, recognized that the right to 
vote is not involved in a statute requiring racial designa­
tions on the ballot. Moreover the facts of the case do not 
suggest a restriction on voting rights. The unfathomable 
vagaries of the voter operate just as freely with this statute 
as without it. This statute merely contributes to a more 
informed electorate. In any event, plaintiffs do not validly 
assert a right under the Fifteenth Amendment.

[1] There is a creeping tendency, when dealing with 
problems in the area of the First and Fourteenth Amend­
ments,9 to outlaw State statutes on the grounds of their 
lack of rightness or wisdom, while under the misapprehen­
sion that only their constitutionality is being tested. This 
the Supreme Court has told us, more than once, we may 
not do.10 With due respect for our federalism, the court 
must examine the Constitution and the various lines of

7 Ex parte Yarborough, 110 U. S. 651, 4 S. Ct. 152, 28 L. Ed. 
274; Guinn v. United States, 238 U. S. 347, 35 S. Ct. 926, 59 L. 
Ed. 1340.

8 224 P. 2d 608 (10 Cir. 1955).
9 So that the matter may not confuse the issue let it be noted 

that the First Amendment is wholly inapplicable to this ease deal­
ing as it does with the powers of Congress. It is the rights 
enumerated in the First Amendment which are included within the 
Fourteenth Amendment upon which plaintiff relies. Gitlow v. New 
York, 268 U. S. 652, 45 S. Ct. 625, 69 L. Ed. 1138.

10 Carpenters and Joiners Union, etc. v. Bitter’s Cafe, 315 U. S. 
722, 62 S. Ct. 807, 86 L. Ed. 1143; Giboney v. Empire Storage <& 
Ice Co., 336 U. S. 490, 69 S. Ct. 684, 93 L. Ed. 834; International 
Brotherhood of Teamsters, etc., Union v. Hanke, 339 U. S. 470, 70 
S. Ct. 773, 94 L. Ed. 995; Building Service Employees, etc. v. 
Gazzam, 339 U. S. 532, 70 S. Ct. 784, 94 L. Ed. 1045.



17

Supreme Court decisions and determine if the State action 
contravenes the Constitution. The examination must be 
liberal so as not to exalt form over substance; it must be 
circumspect so as to accord the states their just powers.11

[2] Plaintiffs’ reliance on the Fourteenth Amendment 
suggests two lines of Supreme Court cases which might 
control this action. The first of these is the right to ano­
nymity defined in N. A. A. C. P. v. Alabama, 357 U. S. 449, 
78 S. Ct. 1163, 2 L. Ed. 2d 1488. This case, plus Bates v. 
Little Rock, 361 U. S. 516, 80 S. Ct. 412, 4 L. Ed. 2d 480, 
and Talley v. California, 362 TJ. S. 60, 80 S. Ct. 536, 4 L. 
Ed. 2d 559, expounded the proposition that a person exercis­
ing freedom of speech or association had a right to ano­
nymity if disclosure entailed “the likelihood of a substantial 
restraint upon the exercise * # * of their right to freedom 
of association.” 12 Justice Black in Talley v. California, 
supra at 65, 80 S. Ct. at 539, explained that “the reason 
for these holdings was that identification and fear of 
reprisal might deter perfectly peaceful discussions of public 
matters of importance.”

It may be assumed, for present purposes, that plaintiffs 
have a constitutional right to seek office.13 However, no 
matter what the length and breadth of that right, there is 
no basis for saying that a candidate for office has a right 
to anonymity. The Court in N. A. A. C. P. v. Alabama, was 
of the opinion that the injury to a right subsequent to

11 “To maintain the balance of our federal system, insofar as it 
is committed to our care, demands at once zealous regard for the 
guarantees of the Bill of Rights and due recognition of the powers 
belonging to the states. Such an adjustment requires austere judg­
ment, and a precise summary of the result may help to avoid 
misconstruction.” Milk Wagon Drivers, etc. v. Meadowmoor, 312 
U. S. 287, 297, 61 S. Ct. 552, 85 L. Ed. 836.

12 N. A. A. C. P. v. Alabama, supra, 357 U. S. at 462, 78 S. Ct. 
at 1172.

13 See McDonald v. Key, 10 Cir., 224 F. 2d 608.



18

disclosure of identity precludes the right to identification. 
A political candidate does not lose his right to run for 
office by disclosure of his race. Further, it is safe to say 
that his race, like his name and political affiliation which 
also appear on the ballot,14 will come out in the campaign. 
This court is not disposed to create a shield against the 
brightest light of public examination of candidates for 
public office.

The Court in Bates, N. A. A. C. P. v. Alabama, and Talley, 
recognized that the right to anonymity could be abridged 
in certain instances. However, in those instances, the State 
bore the burden of showing an overriding interest in the 
public sufficient to justify the partial abridgement of the 
right.15 In the case before us the right of anonymity on 
the ballot does not exist so far as this court can determine. 
Thus this court is not put to any balancing since no per­
sonal interests are placed in the scale opposite the State 
interest, whatever it may be. We conclude that the 
Louisiana statute does not violate the Fourteenth Amend­
ment on that score.

The second line of cases which appears applicable are the 
“state action” cases having their matrix in Shelley v. 
Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L. Ed. 1161, and 
Barrows v. Jackson, 346 U. S. 249, 73 S. Ct. 1031, 97 L. Ed. 
1586. It is insufficient to state that these cases are dis­
tinguishable because state action is clear in this case. These 
cases must be read for their meaning as well as their facts.

The first case is, of course, McDonald v. Key, supra. 
While it does not fall precisely within the “state action” 
concept, it is the case closest on its facts and involves the

14 LSA-R. S. 18:671.
16 See also International Brotherhood of Teamsters, etc., Union 

v. Hanke, 339 U. S. 470, 474, 70 S. Ct. 773, 94 L. Ed. 995; Inter­
national Brotherhood of Teamsters, etc. v. Vogt, Inc., 354 U. S. 284, 
77 S. Ct. 1166, 1 L. Ed. 2d 1347.



19

equal protection clause. There the Tenth Circuit found that 
the requirement that only Negroes have their race desig­
nated on the ballot violated the Fourteenth Amendment. 
Plaintiffs attempt to make more of this case than is in it. 
The Tenth Circuit did not require any intricate theory of 
constithtional deprivation to strike down the Oklahoma 
Statute. Negro candidates were treated different from all 
other candidates without good reason being shown. Given 
those facts the Court need not have gone further, and it 
did not. This is not the case before us. Here all candidates 
must state their race and have it printed on the ballot. 
Plaintiffs must look further to find unconstitutionality.

Plaintiffs would have us find in Shelley v. Kraemer and 
its progeny some principle which would deter a state from 
placing racial classifications on the ballot. A brief synopsis 
of the principle of these cases is in order. The Supreme 
Court, in the first instance, recognized that discrimination 
by private individuals was beyond the scope of the Four­
teenth Amendment under the Civil Rights Cases.16 To this 
was added the undeniable proposition that discrimination 
by the states was improper under the Fourteenth Amend­
ment. Further the Court held that ostensibly private dis­
crimination which was in fact enforced by the state was 
discriminatory “state action” under the Fourteenth Amend­
ment.17 The crucial fact in all these cases, insofar as the 
instant case is concerned, is that there existed a prior act 
of actually proven discrimination to which the state was 
privy. Either the private individual was seeking to exclude 
Negroes from a neighborhood,18 or denying Negroes the

16109 U. S. 3, 3 S. Ct. 18, 27 L. Ed. 835. See Shelley v. Kraemer, 
334 U. S. 1, 13, 68 S. Ct. 836, 92 L. Ed. 1161.

17 Shelley v. Kraemer, supra; Barrows v. Jackson, 346 U. S. 249, 
73 S. Ct. 1031, 97 L. Ed. 1586; Terry v. Adams, 345 U. S. 461, 73 
S. Ct. 809, 97 L. Ed. 1152; Burton v. Wilmington Parking Author­
ity, 365 U. S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45.

18 Shelley v. Kraemer, supra; Barrows v. Jackson, supra.



20

right to vote,19 or segregating buses,20 train terminals,21 
restaurants,22 or golf courses.23 In those cases the state 
sought either to enforce the discrimination24 or permit it 
within the public domain.23 Since the Louisiana statute 
does not discriminate on its face, the Court must ask where 
the proven discrimination lies. Plaintiffs offer no proof 
of actual discrimination against them.26 They ask the court 
to take notice that discrimination among the electorate will 
somehow occur as a result of this statute.27 Precisely how 
this discrimination against plaintiffs can be discovered is 
not made clear, much less how the state controls the dis­
crimination through this statute. Nothing that we can find 
in the state action cases suggest that a court may take a 
state statute, and gaze into the future, seeking some gos­
samer possibility of discrimination in a group of individuals 
wholly beyond the control of the state. The discrimination

is Terry v. Adams, supra.

20 Boman v. Birmingham Transit Company, 5 Cir., 280 F. 2d 531.
21 Baldwin v. Morgan, 5 Cir., 287 F. 2d 750.
22 Burton v. Wilmington Parking Authority, supra.
23 Hampton v. City of Jacksonville, 5 Cir., 304 F. 2d 320.
24 Shelley v. Kraemer, supra; Boman v. Birmingham Transit Co., 

supra.
25 Burton v. Wilmington Parking Authority, supra.
26 A classification in a statute having some reasonable basis does 

not offend against the equal protection clause of the Constitution 
even though in practice results in some inequality. One who assails 
the classification in such a law must carry the burden of showing 
that it does not rest upon any reasonable basis, but is essentially 
arbitrary. Morey v. Bond, 354 U. S. 457, 77 S. Ct. 1344, 1 L. Ed. 
2d 1485.

27 Plaintiff’s reliance on Hall v. St. Helena Parish School Board, 
E. D. La., 197 F. Supp. 649, is unavailing since in that case the 
court was able to determine purpose from concrete results, or at 
the very least easily predictable consequences. Plaintiffs do not 
refer this court to any resulting discrimination and do not even 
hint at predictable results.



21

must be real and the state must effect it. On this record 
we find a nondiseriminatory statute and nothing more. 
Judicial notice of a state policy of segregation avails us 
nothing unless actual discrimination is proven as a result of 
that policy through the medium of this statute. We have 
previously found that the state treats all candidates alike.

For the foregoing reasons we conclude that the statute is 
not in violation of the Fourteenth Amendment, and the re­
quest for preliminary injunction is denied.

W isdom, Circuit Judge (dissenting).
In the eyes of the Constitution, a man is a man. He is 

not a white man. He is not an Indian. He is not a Negro.
If private persons identify a candidate for public office 

as a Negro, they have a right to do so. But it is no part of 
the business of the State to put a racial stamp on the ballot. 
It is too close to a religious stamp. It has no reasonable 
relation to the electoral processes.

When courts have struck down statutes and ordinances 
requiring separate seating arrangements in buses, separate 
restrooms, and separate restaurants in state-owned or 
operated airports and bus terminals, it was not because the 
evidence showed that negroes were restricted to uncom­
fortable seats in buses, dirty restrooms, and poor food. It 
was because they sat in buses behind a sign marked “col­
ored”, entered restrooms under the sign “colored”, and 
could be served food only in restaurants for “colored”. It 
is the stamp of classification by race that makes the clas­
sification invidious.

On principle, the case before us cannot be distinguished 
from McDonald v. Key, 10 Cir., 1955, 224 F. 2d 608, cert, 
den’d, 350 U. S. 895, 76 S. Ct. 153, 100 L. Ed. 787. In that 
case the court had before it an Oklahoma statute requiring 
that any “candidate who is other than of the White race, 
shall have his race designated upon the ballots in paren-



22

thesis after Ms name.” Under the Oklahoma constitution, 
the phrase “white race” includes not only members of that 
race, but members of all other races except the Negro race. 
The court held that this resulted in a denial of equality of 
treatment with respect to Negroes who run for office. As 
a practical matter, in Oklahoma the omission of any racial 
designation on the ballot amounted to the candidate iden­
tifying himself as a white man just as surely as a negro 
candidate would identify himself by the word “negro” after 
his name. The result was essentially the same result in­
tended to be accomplished by the Louisiana statute. Act 
538 of 1960 is somewhat more sophisticated in that there 
is superficial appearance of equality of treatment. The 
effect is the same in that candidates are classified by race, 
and the State is using the elective processes to furnish in­
formation and stimulus for racial discrimination in the 
voting booth.

The State’s imprimatur on racial distinctions on the 
ballot is no more valid than the State’s imprimatur on 
separate voting booths. In Anderson v. Courson, 1962, 203 
F. Supp. 806, 813, the District Court for the Middle District 
of Georgia held that maintenance of racially segregated 
voting places deprived Negroes of equal protection of the 
law “in the matter of the exercise of the elective franchise, 
a function and prerogative of utmost importance in the 
process of government, and so intrinsically characteristic 
of the dignity of citizenship”.

Considering the extent of media of information today, it 
is highly unlikely that any voters will be confused by lack 
of racial identification of candidates on the ballot. Con­
sidering the number of parishes having a large Negro pop­
ulation, it is entirely likely that a racial stamp will help 
as much as it will hinder Negro candidates for public office 
in Louisiana. The vice in the law is not dependent on in­
jury to Negroes. The vice in the law is the State’s placing



23

its power and prestige behind a policy of racial classifica­
tion inconsistent with the elective processes. Justice Harlan 
put his finger on it many years ago when he said that the 
“Constitution is color-blind”. If there is one area above 
all others where the Constitution is color-blind, it is the 
area of state action with respect to the ballot and the 
voting booth.

I respectfully dissent.



24

U nited  S tates D istrict Court 

F or t h e  E astern D istrict oe L ouisiana 

B aton R ouge D ivision 

Filed October 3, 1962 
Civil Action No. 2623

D u pu y  H. A nderson and A cie J. B elton ,

Complainants,
v.

W ade 0 .  M artin , J r .,

Defendant.

Order

Plaintiffs’ motion for leave to file amended or supple­
mental complaint has been denied.

The Court heretofore having fully heard the arguments 
of counsel and having fully considered the evidence in­
cluding stipulations of counsel, rendered judgment on June 
26, 1962 denying plaintiffs’ request for a preliminary writ 
of injunction. Its opinion in support of that judgment was 
rendered on June 29, 1962 and is incorporated herein by 
reference. The Court being of the opinion that for the rea­
sons stated in its opinion, plaintiffs are not entitled to the 
relief sought.

I t is  ordered  t h a t  p l a i n t i f f s ’ p r a y e r  f o r  th e  i s s u a n c e  o f  
a  p e r m a n e n t  i n ju n c t io n  b e  a n d  th e  s a m e  i s  h e r e b y  d e n ie d .

Dated: Sept. 28,1962.



25

(Signed) E. Gordon W est 
E. Gordon West 

United States District Judge

(Signed) F rank  B. E llis 
Frank B. Ellis

United States District Judge

(Signed) J ohn  M inor W isdom 
John Minor Wisdom 

United States Circuit Judge 
Dissenting

Clerk’s Office 
A True Copy 
Oct 5 1962
(Signed) M ary A n n  S anford 

Deputy Clerk, United States District Court 
Eastern District of Louisiana 
Baton Rouge, La.