Anderson v. Martin Reply Brief of Appellee

    TRANSCRIPT OF RECORD

Supreme Court of the United States

OCTOBER TERM, 1962

No. 684

DUPITY H. ANDERSON, ET AL., APPELLANTS,

vs.

WADE 0. MARTIN, JR.

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

FILED DECEMBER 21, 1962
PROBABLE JURISDICTION NOTED FEBRUARY 18, 1963



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1962

No. 684

DUPUY H. ANDERSON, ET AL., APPELLANTS,
vs.

WADE 0. MARTIN, JR.

APPEAL PROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OE LOUISIANA

I N D E X*
Record from the United States District Court for 

the Eastern District of Louisiana, Baton Rouge 
Division
Complaint------------------------------------------------

Affidavit of Acie J. Belton -----------------------
Attachment—Act No. 538 of the 1960 Regular 

Session of Louisiana Legislature and certifi­
cate of Secretary of State of Louisiana-----

Motion for temporary restraining order and de­
nial thereof ------------------------------------------
Proposed temporary restraining order---------

Notice of motion for preliminary injunction-----
Minute entry of order denying motion for issu­

ance of temporary restraining order------------
Letter from West, J., to Rives, J., dated June 13, 

1962, requesting appointment of three-judge
court _________________________________

Order designating three-judge court---------------
Order setting hearing----------------------------------

Original Print

1 1
7 7

9 8

13 11
14 12
16 14

17 15

18 16
19 17
20 18

R ecord P ress, P rinters, New  Y ork, N. Y., A pril 11, 1963



11 INDEX

Original Print
Record from the United States District Court for 

the Eastern District of Louisiana, Baton Rouge 
Division—Continued
Letter from Johnnie A. Jones to Clerk, dated

June 18, 1962 __________________________ 21 19
Minute entry of argument and submission--------  23 20
Minute entry of order denying preliminary writ

of injunction ___________________________ 24 21
Motion to dismiss _________________________ 25 22
Response __________________________1--------- 29 25
Opinion, West, J. _________________________ 32 26
Dissenting opinion, Wisdom, J. _____________  40 34
Motion for leave to file amended or supplemental

complaint _____________________________  43 36
Proposed amended or supplemental complaint 44 37
Proposed order granting leave to file amended

or supplemental complaint --------------------- 51 42
Denial of motion for leave to file amended and

supplemental complaint ------------------------ 51 43
Letter from Clerk to counsel -----------------------  52 43
Order denying issuance of permanent injunction 53 44
Transcript of stipulation—June 26, 1962 _____  55 45

Appearances ___________________________ 55 45
Colloquy between court and counsel________  56 45

Notice of appeal to the Supreme Court of the
United States __________________________ 60 48

Clerk’s certificate (omitted in printing) ______  64 49
Order noting probable jurisdiction____________  65 50



1

[fol. 1] [File endorsement omitted]

IN UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

BATON ROUGE DIVISION
Civil Action No. 2623

Dtiput EL A nderson  and A cie  J. B e lto n , Complainants,
vs.

W ade 0 .  M a r t in , J r ., Defendant.

C o m pl a in t— Filed June 8,1962
To the Honorable, the Judges of the United States Dis­

trict Court, in and for the Eastern District of Louisi­
ana, Baton Rouge Division:

The joint complaint of Dupuy H. Anderson and Acie J. 
Belton (hereinafter referred to as “Complainants”), with 
respect represents:

I
Jurisdiction

a) The jurisdiction of this Court is invoked pursuant to 
Title 28, United States Code, Section 1331, as this action 
arises under the Constitution and laws of the United States, 
to-wit: The First Amendment and Section 1 of the Four­
teenth Amendment to the Constitution of the United States, 
and Title 42, United States Code, Section 1981, and the 
matter in controversy exceeds, exclusive of interest and 
costs, the sum or value of Ten Thousand and no/100 ($10,- 
000.00) Dollars.

b) The jurisdiction of this Court is also invoked pursu­
ant to Title 28, United States Code, Section 1343(3) in 
that: This action is authorized by Title 42, United States 
Code, Section 1983, to be commenced by any citizen of the 
United States or other person within the jurisdiction



2

thereof to redress the deprivation under color of state law, 
statute, ordinance, regulation, custom or usage of any right, 
privilege or immunity secured by the Fourteenth Amend­
ment and the Fifteenth Amendments to the Constitution 
of the United States and secured by Title 42, United States 
[fol. 2] Code, Sections 1971a and 1981, providing that all 
citizens of the United States shall be entitled and allowed 
to vote without distinction of race and for the equal rights 
of citizens and of all persons within the jurisdiction of the 
United States.

II
Injunctive Belief

a) The jurisdiction of this Court is also invoked pursu­
ant to Title 28, United States Code, Section 2281, this being 
an action for an Interlocutory and Permanent Injunction, 
restraining upon the grounds of unconstitutionality the 
enforcement of Act Number 538 of the 1960 Regular Ses­
sion of Louisiana Legislature, of which, a duly certified 
photostat copy is hereto appended, filed herewith and, by 
reference thereto, made a part hereof the same as if herein 
written “in extenso.”

b) Complainants allege and aver that said Act Number 
538 of the 1960 Regular Session of Louisiana Legislature 
is unconstitutional, null, void, invalid and without legal 
force and effect, on its face, and in its entirety, for the fol­
lowing reasons, to-wit:

1) That said Act contravenes and violates freedom of 
speech guaranteed by the First Amendment to the 
Constitution of the United States and by Article 1, 
Section 3, of the Constitution of the State of Louisi­
ana of 1921, in that, said Act under its terms and pro­
visions makes it mandatory that your complainants 
disclose their racial identity, specifically, as a Negro, 
in order to qualify as a candidate for public office in 
the election to be held in the Parish of East Baton 
Rouge, State of Louisiana on Saturday, July 28, 1962.

2) That said Act contravenes and violates the due proc­
ess and equal protection clauses of the Fourteenth



3

Amendment to the Constitution of the United States 
and Title 42, United States Code, Sections 1981 and 
1983, in that your complainants under the provisions 
of said Act will be, on said election day, denied basic 
rights and privileges and deprived of equal protec­
tion of the laws which citizens, particularly, candi­
dates of other racial identities bidding for the same 
public offices, School Board Members of East Baton 
Rouge Parish School Board from Wards One and 
Two of said Parish (four (4) year term), will be 
privileged to enjoy and exercise.

3) The enforcement of said Act will result in many un­
reasonable limitations and many unnecessary restric­
tions the lack of which are impractical and are not 
customary of candidates seeking election to public 
offices, nor of their friends and supporters, all as will 
be shown on the trial of this cause.

[fol. 3]
III

Temporary Restraining Order
This is an action for a Temporary Restraining Order, 

authorized by Rule 65 of the Federal Rules of Civil Pro­
cedure. That immediate and irreparable injury, loss or 
damage will result to applicants and/or complainants be­
fore notice can be served and a hearing had thereon.

IV
Particular Averments

a) Complainant, Dupuy H. Anderson, is a citizen of the 
United States of America and a citizen and resident of 
lawful age of the Parish of East Baton Rouge, State of 
Louisiana, and is a duly qualified candidate for the Demo­
cratic Nomination to the office of School Board Member 
of East Baton Rouge Parish School Board, State of Louisi­
ana, for the four (4) year term from Ward One (1) of East 
Baton Rouge Parish, State of Louisiana, in the Democratic 
Primary Election to be held in the Parish of East Baton 
Rouge, State of Louisiana, on Saturday, July 28, 1962; and



4

that, the complainant, Acie J. Belton, is a citizen of the 
United States of America and a citizen and resident of 
lawful age of the Parish of East Baton Rouge, State of 
Louisiana, and is a duly qualified candidate for the Demo­
cratic Nomination to the office of School Board Member 
of East Baton Rouge Parish School Board, State of Louisi­
ana, for the four (4) year term from Ward Two (2) of 
East Baton Rouge Parish, State of Louisiana, in the Dem­
ocratic Primary Election to be held in the Parish of East 
Baton Rouge, State of Louisiana, on Saturday, July 28, 
1962.

b) That complainants are members of the Negro race 
bringing this action on their own behalf and on behalf of 
all other Negroes similarly situated with respect to the 
matter here involved, they being so numerous as to make it 
impractical to bring them all before the Court and there 
being common questions of law and fact. A common relief 
being sought, complainants present this action as a class 
action pursuant to Rule 23(a) of the Federal Rules of 
Civil Procedure. Complainants adequately represent the 
interests of the class.
[fol. 4] c) That Wade 0. Martin, Jr. is a citizen of the 
United States of America and is the duly elected Secretary 
of State of the State of Louisiana, and who, by the provi­
sions and terms of said Act, is expressly charged with the 
enforcement of same.

d) This is a proceeding pursuant to Title 28, United 
States Code, Sections 2201 and 2202 for a Declaratory 
Judgment, declaring the rights and other legal relations 
of claimants and other Negroes similarly situated in the 
subject matter in controversy between the parties, to-wit:

Whether Act Number 538 of the 1960 Regular Ses­
sion of the Louisiana Legislature violates the rights, 
privileges and immunities of complainants, and other 
Negroes similarly situated, as guaranteed by the First, 
Fourteenth and Fifteenth Amendments to the Consti­
tution of the United States and secured by Title 42, 
United States Code, Sections 1971(a) and 1981 to 
seek and obtain public offices free from state imposed



5

racial distinctions and discriminations and to vote free 
from abridgements, denials and distinctions imposed 
by the State ?

e) Complainants allege and aver that the operation and 
enforcement and the continued operation and enforcement 
of said Act Number 538, invades, denies, and abridges 
their rights, privileges and immunities as guaranteed by 
the First, Fourteenth and Fifteenth Amendments to the 
Constitution of the United States and secured by Title 42, 
United States Code, Sections 1971(a) and 1981 in that said 
Act by its purpose and effect imposes a disability and bur­
den in the exercise of their rights and privileges to seek 
and obtain public offices based solely on race; that said Act 
by its purpose and effect places the power and prestige of 
the State behind distinctions based solely on race and that 
said Act by its purpose and effect abridges the right to 
vote of complainants and their supporters.

f) Complainants allege and aver that by virtue of the 
operation and/or enforcement of Act Number 538 of the 
1960 Regular Session of the Louisiana Legislature com­
plainants will suffer immediate and irreparable harm, in­
jury, loss and damage, unless this Court enjoin and re­
strain the defendant, Secretary of State of the State of 
Louisiana, his subordinates, agents and/or employees and 
his successors and assigns from enforcing said Act Num­
ber 538, which requires that every application, notification 
or declaration of candidacy, and every certificate of nom- 
[fol. 5] ination and nomination paper pertaining to com­
plainants specify their race; and complainants, on informa­
tion and belief, further allege that on the ballots to be used 
in the election to be held on Saturday, July 28, 1962, com­
plainants’ race, which is the Negro race, will be printed 
within parentheses beside complainants’ names.

Wherefore, complainants pray
1) That defendant, Wade O. Martin, Jr., be duly served 

and cited in the manner prescribed by law.
2) That a notice of a hearing of this matter be served 

on the proper State officers as provided by Title 28, United 
States Code, Section 2284(2).



6

3) That the Court convene a Three-Judge Court as 
provided by Title 28, United States Code, Section 2284.

4) That the Court advance the complaint on the Docket 
and order a Speedy hearing thereof according to law and 
upon such hearing the Court enter a Preliminary and Per­
manent Injunction to enjoin and restrain the defendant, 
Wade 0. Martin, Jr., Secretary of State of the State of 
Louisiana, his subordinates, agents and/or employees and 
his successors and assigns from enforcing Act Number 538 
of the 1960 Regular Session of the Louisiana Legislature 
on the grounds that said Act is unconstitutional, null, void, 
invalid and without legal force and effect in that said Act 
is in violation of the First, Fourteenth and Fifteenth 
Amendments to the Constitution of the United States and 
Title 42, United States Code, Sections 1971(a) and 1981.

5) That the Court adjudge, decree and declare the right 
and legal relations of the parties to the subject matter 
hereof to be in controversy and that such declaration shall 
have the force and effect of a final judgment or decree and 
that the Court adjudge, decree and declare that Act Num­
ber 538 of the 1960 Regular Session of the Louisiana 
Legislature is unconstitutional, null and void and invalid 
as in violation of the First, Fourteenth and Fifteenth 
Amendments to the United States Constitution.

6) That a Temporary Restraining Order issue herein 
prohibiting and restricting the defendant, Secretary of 
State of the State of Louisiana, his subordinates, agents 
and/or employees and his successors and assigns from en- 
[fol. 6] forcing Act Number 538 of the 1960 Regular Ses­
sion of Louisiana Legislature on the grounds that imme­
diate and irreparable injury, loss or damage will result to 
complainants before notice hereof can be served and a 
hearing had hereon.

7) That the Court allow complainants their costs and 
that complainants have such other and further relief as 
may appear just and proper in the premises.

Attorneys for Complainants: Johnnie A. Jones, 
Murphy W. Bell, Bruce A. Bell, 971 South 13th 
Street, Baton Rouge, Louisiana; Leonard P.



7

Avery, Samuel Dickens, 8152 Scenic Highway, 
Baton Bouge 7, Louisiana; Wilmon L. Richard­
son, 1091 Swan Street, Baton Rouge 7, Louisiana; 
By: Johnnie A. Jones.

Of Counsel: Jack Greenberg, James M. Nabrit, III, 
Michael Meltsner, 10 Columbus Circle, New York 19, New 
York.

[fob 7] State of Louisiana 
Parish of East Baton Rouge

A ffid a v it  of A cie  J. B eltost

Before Me, the undersigned authority, this day person­
ally came and appeared: Acie J. Belton, who, after being 
first duly sworn, did depose and say:

That he is one of the complainants in the above and fore­
going complaint; that he is a citizen of the United States 
and of the State of Louisiana; and that he is a duly quali­
fied candidate for the Democratic Nomination to the office of 
School Board Member of East Baton Rouge Parish School 
Board, State of Louisiana, for the four (4) year term from 
Ward Two (2) of East Baton Rouge Parish, State of 
Louisiana, in the Democratic Primary Election to be held 
on Saturday, July 28, 1962, in the Parish of East Baton 
Rouge, State of Louisiana; and that Dupuy H. Anderson, 
the other named complainant in the above and foregoing 
complaint, is a citizen of the United States and of the 
State of Louisiana, and that, he is a duly qualified candi­
date for the Democratic Nomination to the office of School 
Board Member of East Baton Rouge Parish School Board, 
State of Louisiana, for the four (4) year term from Ward 
One (1) of East Baton Rouge Parish, State of Louisiana, 
in the Democratic Primary Election to be held on Satur­
day, July 28, 1962, in the Parish of East Baton Rouge, 
State of Louisiana; that he has read the above and fore­
going complaint and that all of the allegations of facts 
therein contained are true and correct to the best of his 
knowledge, information and belief; and that unless the



8

relief is granted as prayed for in the foregoing complaint 
the complainants named therein and the class they repre­
sent will suffer, on election day, come Saturday, July 28, 
1962, immediate and irreparable harm, injury, loss and 
damage under and by virtue of the operation and/or en­
forcement of Act Number 538 of the 1960 Regular Session 
of Louisiana Legislature.

Acie J. Belton

Sworn To and Subscribed before me this 7th day of 
June, 1962.

Johnnie A. Jones, Notary Public.

[fol. 8] Certificate of Service (omitted in printing).

[fol. 9]
A t t a c h m e n t  to C o m pla in t  

[Letterhead of State of Louisiana]

W ade 0 .  M a r t in , J r .

I, the Undersigned Secretary of State, of the State of 
Louisiana, Do Hereby Certify That the annexed and at­
tached three pages are true and correct photostat copies of 
Act No. 538 of the 1960 Regular Session of Louisiana Leg­
islature, as shown by comparison with the original docu­
ment on file in the archives of this office.

Given under my signature, authenticated with the 
impress of my Seal of office, at the City of Baton 
Rouge, this, 1st day of February A.D. 1961.

Wade 0. Martin, Jr., Secretary of State.



9

[fol. 10]
House Bill No. 1061 By: Messrs. Garrett, DuPont, Stin­

son, Napper, Schoenberger, 
and Senators Gravolet, Pat­
ton, Jones, Carpenter, Adcock, 
and Long

AN ACT
To Amend Title 18 of the Louisiana Revised Statutes of 

1950 by Adding Thereto a New Section to Be Desig­
nated as R.S. 18:1174.1, to Provide for the Designation 
of the Race of Each Candidate for Public Office on 
Applications for, Notifications or Declarations of, Can­
didacy, and on Certificates of Nomination, Nomination 
Papers, Certifications of Names of Candidates Made 
to the Secretary of State, and on Ballots.

ORIGINATED 

ACT 538 

IN THE

HOUSE OF REPRESENTATIVES

[Signature Illegible], Clerk of the House of Repre­
sentatives.

Received by Secretary of State this 14th day of July, 
1960.

Wade 0. Martin, Jr., Secretary of State.

Rec’d by the Governor—July 5,1960 at 1:30 P.M.
D. Andries



10

[fol. 11]
House Bill No. 1061 By: Messrs. Garrett, DuPont, Stin­

son, Napper, Schoenberger, 
and Senators Gravolet, Pat­
ton, Jones, Carpenter, Adcock, 
and Long

AN ACT
To Amend Title 18 of the Louisiana Revised Statutes of 

1950 by Adding Thereto a New Section to Be Desig­
nated as R.S. 18:1174.1, to Provide for the Designation 
of the Race of Each Candidate for Public Office on 
Applications for, Notifications or Declarations of, Can­
didacy, and on Certificates of Nomination, Nomination 
Papers, Certifications of Names of Candidates Made 
to the Secretary of State, and on Ballots.

Be It Enacted by the Legislature of Louisiana:
Section 1. Section 1174.1 of Title 18 of the Louisiana 

Revised Statutes of 1950 is hereby enacted to read as fol­
lows :

Section 1174.1. Designation of race of candidates on 
paper and ballots

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, gen­
eral 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 executive com­
mittees, 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 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



11

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 pri­
mary, 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 infomna- 
[fol. 12] tion shall be obtained from the documents de­
scribed 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.

Section 2. All laws or parts of laws in conflict herewith 
are hereby repealed.

[Signature Illegible], Speaker of the House of Rep- 
resentatives.

[Signature Illegible], Lieutenant Governor and 
President of the Senate.

Jimmie H. Davis, Governor of the State of Louisi­
ana.

Approved: July 9,1960

[fol. 13] [File endorsement omitted]

I n  U n it e d  S tates D istr ic t  C ourt 
F or t h e  E astern  D istrict  oe L ouisiana

B aton  R ouge D iv isio n

Civil Action No. 2623

[Title omitted]

M otion  eor T em porary  R e str a in in g  Order 
—Filed June 8, 1962, and Denial Thereof, June 11, 1962

The plaintiffs move this Honorable Court for the issu­
ance of a Temporary Restraining Order, without notice, 
temporarily restraining the defendant, Wade 0. Martin,



12

Jr., Secretary of State of the State of Louisiana, his subor­
dinates, agents, servants and/or employees and his suc­
cessors and assigns from enforcing the terms and provi­
sions of Act Number 538 of the 1960 Regular Session of 
Louisiana Legislature, in the Primary Election to be held 
in East Baton Rouge Parish, State of Louisiana, on Satur­
day, July 28, 1962.

As appearers [sic] from the verified complaint, defen­
dant will, unless restrained by order of this Court, cause im­
mediate and irreparable injury, loss and damage to the 
plaintiffs, for which plaintiffs have no adequate remedy at 
law, before notice can be served and a hearing had thereon.

Attorneys for Plaintiffs: By: Johnnie A. Jones.

Motion for issuance of Temporary Restraining Order 
Denied—June 11, 1962—New Orleans, La.—E. Gordon 
West, U. S. District Judge.

[fol. 14]
I n  U n ited  S tates D istr ic t  C oubt 

F or t h e  E astern  D istr ic t  oe L ouisiana

B aton  R ouge D iv isio n

Civil Action No. 2623

[Title omitted]

P roposed T em porary  R e st r a in in g  Order

Whereas, in the above-named cause it has been made to 
appear by the verified complaint filed herein, which was on
this ___  day of June, 1962, presented to the Honorable
E. Gordon West, Judge of the United States District Court 
for the Eastern District of Louisiana, that a restraining or­
der preliminary to hearing upon motion for a Preliminary 
Injunction should issue, without notice, because immediate 
and irreparable injury, loss and/or damage will result to 
the plaintiffs before notice can be served and a hearing 
had thereon, in that the plaintiffs are members of the 
Negro race and are duly qualified candidates for the Demo-



13

cratic Nomination to the offices of School Board Members 
of East Baton Rouge Parish School Board from Wards 
One (1) and Two (2) of East Baton Rouge Parish, State 
of Louisiana, in the Democratic Primary Election to he 
held on Saturday, July 28, 1962, and that, the operation 
and enforcement and the continued operation and enforce­
ment of Act Number 538 of the 1960 Regular Session of 
Louisiana Legislature invades, denies and abridges plain­
tiffs’ rights, privileges and immunities as guaranteed by 
the First, Fourteenth and Fifteenth Amendments to the 
Constitution of the United States and secured by Title 42, 
United States Code, Sections 1971a and 1981 in that the 
purpose and effect of said Act, thus, the enforcement of 
same, impose a disability and burden on plaintiffs in the 
exercise of their rights and privileges to seek and obtain 
pubic offices based solely on race; that said Act by its 
[fob 15] purpose and effect, and finally, its enforcement, 
abridges the right to vote of plaintiffs and their sup­
porters.

Notice and a hearing before entering a Temporary Re­
straining Order should not be required because the enforce­
ment of said Act imposes a disability and burden on plain­
tiffs in the exercise of their rights and privileges to seek 
and obtain public offices based solely on race; that said Act 
places the power and prestige of the State behind distinc­
tions based solely on race and that the enforcement of said 
Act abridges the right to vote of plaintiffs and their sup­
porters.

Now Therefore, on motion of the plaintiffs
It Is Ordered that the defendant, Wade 0. Martin, Jr., 

Secretary of State of the State of Louisiana, his subor­
dinates, agents, servants and/or employees, and his suc­
cessors and assigns, who receive actual notice of this order 
by personal service or otherwise, be, and they are hereby 
enjoined from enforcing Act Number 538 of the 1960 Regu­
lar Session of the Louisiana Legislature and all regulations 
thereunder until a full hearing and determination of the 
subject matter is had by the full Court of Three Judges.



14

This Temporary Restraint is on the condition that a
bond be filed by the complainants herein in the sum o f -----

($ ) Dollars, conditioned that complain­
ants will pay to the parties enjoined such damages as they 
may sustain by reason of said Temporary Restraining, 
if the Court finally decides that plaintiffs were not entitled 
thereto.

Issued at Baton Rouge, Louisiana, this ----- day of
June, 1962, at the hour of ....... ............. o’clock ...... M.

.... ................ .............. District Judge.

[fol. 16]
I n  U n it e d  S tates D istr ic t  C ourt 

F or t h e  E astern  D istr ic t  of L ouisiana

B aton  R ouge D ivision

Civil Action No. 2623

[Title omitted]

N otice of M otion  for  P r elim in a r y  I n ju n c t io n

To: The Honorable Wade 0. Martin, Jr., Secretary of 
State of the State of Louisiana

Please take notice that the undersigned will bring the 
attached Motion for a Preliminary Injunction on for hear­
ing before the United States District Court (Baton Rouge 
Division) for the Eastern District of Louisiana, United
States Courthouse, Baton Rouge, Louisiana, at ..............
o’clock A. M. on the .... . day of ........... ......... , 1962, or as
soon thereafter as counsel can be heard.

Attorneys for Complainants: By: Johnnie A. Jones.



15

[fol. 17]
I n  U n it e d  S tates D istr ic t  C ourt 

F or t h e  E astern  D istr ic t  oe L ouisiana

B aton  R ouge D iv isio n

West, J . : Division “C”
No. 2623

Civil Action—BRD 

[Title omitted]

M in u t e  E n try  oe O rder D e n y in g  M otion  eor  I ssu a n ce  oe 
T em porary  R e st r a in in g  O rder— June 11, 1962

It Is Ordered by the Court that the motion of Petitioners 
for issuance of temporary restraining order be, and the 
same is hereby, Denied.

EGW

Johnnie A. Jones, Esq., 
Wade 0. Martin, Jr., Esq., 
Jack P. P. Gremillion, Esq.,

6/11/62—Copies Mailed—NBJ.



16

[fol. 18]
1st U n it e d  S tates D istr ic t  C ourt 

F or t h e  E astern  D istr ic t  oe L ouisia n a

B aton  R ouge D iv isio n

June 13, 1962

Honorable Richard P. Rives 
United States Court of Appeals 
Fifth Circuit 
Post Office Box 1070 
Montgomery 2, Alabama

In Re: Dupuy II. Anderson and Acie J. Belton, Com­
plainants v. Wade 0. Martin, Jr., Defendant 
Civil Action No. 2623, United States District 
Court
Eastern District of Louisiana, Baton Rouge 
Division

Dear Judge Rives:
In connection with our telephone conversation of yester­

day, I am enclosing herewith a complete copy of the com­
plaint filed in the above captioned matter.

Complainants have prayed for the convening of a three 
judge court to consider this matter. Since, to my knowl­
edge, this precise question has not heretofore been passed 
upon, it is my considered opinion that this complaint pre­
sents a substantial constitutional question.

I would, therefore, request that a three judge court be 
constituted to hear this matter.

Since I have refused to issue a temporary restraining 
order, I would respectfully suggest that the three judge 
court be appointed as soon as possible so that an 
early hearing date may be afforded complainants. By tele­
phone you tentatively appointed Judge Wisdom and Judge



17

Ellis to serve with me, but I understand that these appoint­
ments are subject to your future confirmation.

With kindest personal regards, I remain,
Sincerely,

E. Gordon West, United States District Judge.

Enel.

[fol. 19] [File endorsement omitted]

I n  U n it e d  S tates D istr ic t  C ourt 
F or t h e  E astern  D istr ic t  of L ouisiana

B aton  R ouge D iv isio n

Civil Action No. 2623

[Title omitted]

Order D esig n a tin g  T h r e e - J udge C ourt— June 14,1962
Whereas Honorable Elbert P. Tuttle, Chief Judge of 

the United States Court of Appeals for the Fifth Circuit is 
outside of the Circuit and temporarily unable to perform 
his duties as Chief Judge; and whereas the undersigned 
is a Circuit Judge in active service, present in the Circuit, 
under 70 years of age, next in precedence, and able and 
qualified to act as Chief Judge pursuant to Title 28, United 
States Code, Section 45(d) ; and whereas, in my judgment, 
the public interest so requires; and

The Honorable E. Gordon West, United States District 
Judge for the Eastern District of Louisiana, to whom an 
application for injunction and other relief has been pre­
sented in the above-styled and numbered cause, having no­
tified me that the action is one required by act of Congress 
to be heard and determined by a district court of three 
judges, I, Richard T. Rives, as Acting Chief Judge of the 
Fifth Circuit, hereby designate the Honorable John Minor 
Wisdom, United States Circuit Judge, and the Honorable 
Frank B. Ellis, United States District Judge for the East-



18

ern District of Louisiana, to serve with Judge West as 
members of, and with him to constitute the court to hear 
and determine the action.

Witness My Hand this 14th day of June, 1962.
Richard T. Rives, Acting Chief Judge.

(Tn junctions—Three judge courts—designation,
28 U.S.C.A. Sec. 2284)

[fol. 20] [File endorsement omitted]

Isr U n ited  S tates D istrict  C ourt 
F or t h e  E astern  D istr ic t  of L ouisiana

B aton  R ouge D iv isio n

Civil Action No. 2623

[Title omitted]

Order S e t t in g  H earing— Filed June 15, 1962 

On application of complainants:
It Is Ordered that a hearing on the plaintiffs’ motion for 

the issuance of a preliminary injunction shall be held be­
fore the three judge Court empanelled in this matter at the 
Post Office Building, New Orleans, Louisiana, at 10:00 
o’clock a. m. June 26, 1962.

E. Gordon West, United States District Judge.



19

[fol. 21]
I n  U n it e d  S tates D istr ic t  C ourt 

F or t h e  E astern  D istr ic t  of L ouisia n a

B aton  R ouge D iv isio n

N otary P u blic  P h o n e  2-8573
JOHNNIE A. JONES 

A ttorney  at L aw  
530 S o u t h  13t h  S treet  

B aton  R ouge 3, L ouisiana

[Stamp—U. S. District Court—Eastern District of Loui­
siana—Filed—June 18, 1962—A. Dallam O’Brien, Jr., 
Clerk.]

June 18, 1962

Hon. C. H. Banta, Clerk 
U. S. District Court 
Eastern District of Louisiana 
Baton Rouge Division 
Baton Rouge, Louisiana

Re: Civil Action No. 2623
Dupuy H. Anderson, et al. 

vs.
Wade 0. Martin, Jr.

Dear Sir:
The plaintiffs in the captioned premises request that 

subpoenas issue to the following named witnesses to ap­
pear and testify in the hearing to he had in the captioned 
cause on Tuesday, June 26, 1962 at the hour of 10:00 
o’clock A.M. in the Courthouse located in the Post Office 
Building at New Orleans, Louisiana. The names and ad­
dresses of the witnesses, to-wit:

1. Acie J. Belton
1763 Rosenwald Road 
Baton Rouge 7, Louisiana



20

2. Hon. Wade 0. Martin, Jr.
Secretary of State of the State of Louisiana 
State Capitol Building 
Baton Rouge, Louisiana

3. Hon. Jodie Smith 
Registrar of Voters 
East Baton Rouge Parish 
Parish Courthouse Building 
Baton Rouge, Louisiana

[fol. 22]
4. Russell J. Dioron, Chairman

East Baton Rouge Parish Democratic Committee 
620 Florida Street 
Baton Rouge, Louisiana

Thanking you for your very kind and prompt coopera­
tion, I am

Yours very truly,
Johnnie A. Jones

JAJ/mlj

[fol. 23]
I n  U n it e d  S tates D istr ic t  C ourt 

F or t h e  E astern  D istr ic t  oe L ouisiana

B aton  R ouge D iv isio n

Civil Action No. 2623
Wisdom, J . :
West, J . :
Ellis, J.:

[Title omitted]

M in u t e  E n try  oe A r g u m e n t  and  S u b m issio n  
—June 26,1962

This cause came on for hearing this day on Hearing on 
Plaintiff’s motion for issuance of a preliminary injunction.



21

Present: Jack Greenberg, Esq.,
Johnnie A. Jones, Esq.,
Attorneys for Plaintiff
Harry Fuller, Esq.,
T. McFerrin, Esq.,
Attorneys for State of Louisiana

All present and ready.
Defendant files written motion to dismiss and response 

to complaint.

Argument.
Submitted.

[fol. 24]
I n  U n it e d  S tates D istr ic t  C ourt 

F or t h e  E a stern  D istr ic t  of L ouisiana

B aton  R ouge D iv isio n

CA 2623

[Title omitted]

M in u t e  E n try  of Order D e n y in g  P r elim in a r y  W r it  of 
I n ju n c t io n — June 26, 1962

The motion to dismiss for lack of jurisdiction and of 
abatement is denied, whereupon, this cause came on to be 
heard under special assignment and pursuant to stipulation 
of counsel as to the evidentiary matters involved and the 
Court having considered the law and the stipulation, and 
the arguments of counsel,



22

It Is Ordered, that plaintiff’s request for a preliminary 
writ of injunction be denied.

E. Gordon West, District Judge.
Frank B. Ellis, District Judge.

United States Circuit Judge 
Dissenting

John Minor Wisdom

6/26/62
cc: Gremillion 

Martin 
Jones 
Fuller 
McFerrin

[fol. 25] [File endorsement omitted]

I n  U n it e d  S tates D istr ic t  C ourt 
F or t h e  E astern  D istr ic t  of L ouisiana

B aton  R ouge D iv isio n

Civil Action No. 2623

[Title omitted]

M otion  to D ism iss— Filed June 26,1962
Now Into Court through undersigned counsel comes 

Wade 0. Martin, Jr., appearing herein through Jack P. F. 
Gremillion, Attorney General of the State of Louisiana, 
and other undersigned counsel, and files this Motion to 
Dismiss on the following grounds, to-wit:

1. This Court does not have jurisdiction.
a) Plaintiffs allege jurisdiction under Title 28 U.S.C.A. 

1331, in that the matter in controversy arises under the 
Constitution, laws or treaties of the United States and the 
amount in controversy exceeds Ten Thousand and no/100



23

($10,000.00) Dollars, exclusive of interest and costs. Re­
spondent avers that plaintiffs’ claim involves nothing in 
money value, and therefore this statute confers no juris­
diction of this Court. (St. Paul Mercury Indemnity Com­
pany vs. Red. Cab Company, 303 U. S. 283, 58 S. Ct. 586).

b) Complainants further invoke jurisdiction of this 
Court pursuant to Title 28, U.S.C.A., Section 1343(3) be­
cause of the provisions of Title 42, U.S.C.A., Sections 1971 
(a) and 1981. 42 U.S.C.A. 1971(a) provides that all per­
sons otherwise qualified by law shall be allowed to vote at 
any election without distinction of race, color or previous 
[fob 26] servitude. This Section does not confer jurisdic­
tion upon the Court in this instance because no person is 
being denied the right to vote because of color, race or 
previous servitude.

42 U.S.C.A. 1981 provides that all persons shall have 
equal rights under the law, and shall suffer equal penalties, 
pain, punishment and the like under the law. Act 538 of 
1960 is expressly designed to apply to everyone equally, and 
therefore confers no jurisdiction upon this Court on the 
grounds of racial discrimination. Jurisdiction must be 
expressly pleaded in the complaint, and alleged depriva­
tions of constitutional rights must be affirmatively stated 
and set forth, which is not done in the complaint filed in 
this matter. (South Covington and C. St. Railway Co. vs. 
City of Newport, 42 Sup. Ct. 418, 259 U. S. 97).

2. A Three Judge Court does not have jurisdiction to 
hear this cause. A sufficient Federal Constitutional ques­
tion is necessary to invoke the jurisdiction of a Three 
Judge District Court, and the existence of this question 
must be determined by the allegations of the complaint. 
(Shuttlesworth vs. Birmingham Board of Education of 
Jefferson County, 162 Fed. Sup. 372, affirmed 79 Sup. Ct. 
221; Webb vs. State University of New York, 120 Fed. 
Sup. 554). A sufficient Federal question does not exist 
merely by complainants’ allegations in an action to enjoin 
enforcement of a state statute that a section of such a 
statute is unconstitutional. (Patterson vs. Hardon, 145 
Fed. Sup. 299).



24

3. A Three Judge Court is without authority to issue an 
injunction as prayed for in this matter. When a Federal 
Court is asked to interfere with enforcement of state stat­
utes, it should only do so to prevent irrevocable injury 
which is clear, imminent and substantial. (Piccoli vs. Board 
of Trustees and Warden of State Prison, 87 Fed. Sup. 
[fol. 27] 672). An injunction should not issue against a 
State officer clothed with the authority to enforce a law 
unless in a case reasonably free from doubt and when 
necessary to prevent clear and irrevocable injury. (Pearl 
Assurance Co., Limited of London, England vs. Harring­
ton, 38 Fed. Sup. 411, affirmed 61 Sup. Ct. 1120).

4. Plea of Abatement
The pendency of a representative suit is grounds for the 

abatement of a subsequent similar suit in the same jurisdic­
tion, although the second complainant is not a party to the 
prior suit. (Gamble vs. San Diego, 79 Fed. 487). There­
fore this action should be abated due to the existence of a 
suit entitled Bruce A. Bell vs. Wade 0. Martin, Jr., pres­
ently pending in the United States District Court for the 
Eastern District of Louisiana, Baton Rouge Division, Civil 
Action No. 2432 on the Docket, copies of which suit and de­
fendant’s answer thereto are annexed hereto and made part 
hereof.

5. The complaint fails to state a claim against defendant 
upon which relief can be granted.

Wherefore, mover prays that this complaint be dis­
missed at complainants’ cost.

By Attorneys: Jack P. F. Gremillion, Attorney 
General, State of Louisiana; Carroll Buck, First 
Assistant Attorney General; Harry Fuller, Second 
Assistant Attorney General; Teddy W. Airhart, 
Jr., Assistant Attorney General; Thomas W. Mc- 
Ferrin, Special Counsel.

[fol. 28] Certificate of service (omitted in printing).



25

[fol. 29] [File endorsement omitted]

1st U n it e d  S tates D istr ic t  C ourt 
F or t h e  E a stern  D istrict  oe L ouisiana

B aton  R ouge D iv isio n

Civil Action No. 2623

[Title omitted]

R espo n se—Filed July 2,1962
Now Into Court, through Jack P. F. Gremillion and 

other undersigned counsel comes Wade 0. Martin, Jr., 
Secretary of State, State of Louisiana, and files this his 
Response in the above captioned matter, reserving all 
rights in regard to his Motion previously filed herein, deny­
ing each and every allegation contained in the complaint 
except those hereinafter expressly admitted, and with re­
spect shows that:

I.

Defendant denies the allegations contained in Article I 
of complainants’ petition.

II.
Defendant denies the allegations contained in Article II 

of complainants’ petition.

III.
Defendant denies the allegations contained in Article III 

of complainants’ petition.

I Y .

Particular Averments
a) Defendant admits the allegations contained in Article 

IV, Section A of the complaint.
[fol. 30] b) Defendant denies the allegations contained 
in Article IV, Section B of the complaint.



26

c) Defendant admits the allegations contained in Article 
IV, Section C of the complaint.

d) Defendant denies the allegations contained in Article 
IV, Section D of the complaint.

e) Defendant denies the allegations contained in Article 
IV, Section E of the complaint.

f) Defendant denies the allegations contained in Article 
IV, Section E of the complaint.

Wherefore, defendant prays that complaint be dismissed 
at complainants’ cost.

By Attorneys: Jack P. F. Gremillion, Attorney 
General, State of Louisiana; Carroll Buck, First 
Assistant Attorney General; Harry Fuller, Second 
Assistant Attorney General; Teddy W. Airhart, 
Jr., Assistant Attorney General; Thomas W. Mc- 
Ferrin, Special Counsel.

[fol. 31] Certificate of service (omitted in printing).

[fol. 32] [File endorsement omitted]

I n  U n it e d  S tates D istrict  C ourt 
F or t h e  E a stern  D istrict  oe L ouisiana

B aton  R ouge D iv isio n

Civil Action No. 2623

D u p u y  H. A nderson  and A cie  J. B e lto n , Complainants,
vs.

W ade O. M a r t in , J r., Defendant.

Attorneys for Complainants:
Johnnie A. Jones, Murphy W. Bell, Bruce A. Bell, 

Leonard P. Avery, Samuel Dickens, Wilmon L. Richard­
son; Of Counsel: Jack Greenberg, James M. Nabrit, III, 
Michael Meltsner.



27

Attorneys for Defendant:
Jack P. F. Gremillion, Attorney General, State of Louisi­

ana; Carroll Buck, First Assistant Attorney General; 
Harry Fuller, Second Assistant Attorney General; Teddy 
W. Airhart, Jr., Assistant Attorney General; Thomas W. 
McFerrin, Special Counsel.

Opinion—J une 29,1962
Before John Minor Wisdom, Circuit Judge, and E. Gordon 

West and Frank B. Ellis, District Judges
W est, E. Gordon, J .

In 1960 the Louisiana Legislature enacted legislation re­
quiring the Secretary of State to place a racial designation 
over the name of every candidate on the ballot in the pri­
mary or general election.1 Under the statute the candidate 
[fol. 33] must place his name and racial designation on his

1 La. R. S. §1174.1, Act 538 of 1960
Ҥ1174.1 Designation of race of candidates on paper and ballots
A. Every application for or notification or declaration of can­

didacy, 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 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 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 can­
didate, 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.



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 candi­
date.

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 to­
gether 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 
[fol. 34] parties stipulated that the facts were as stated in 
plaintiffs’ complaint; 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 ap­
plies to all. While it requires the negro to have his race 
disclosed on the ballot, it requires the same of the Cauca­
sian, Mongolian, and so on. The garden variety discrim­
ination between white and negro is not involved. More­
over, the state adopts no “sophisticated” method of 
discrimination that might give us pause.3 The sole ques­
tion is whether the constitutional rights of a negro candi­
date are abridged when his race, like that of all other candi­
dates, is disclosed on the ballot pursuant to state statute.

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

3 See Lane v. Wilson, 307 U. S. 268.



29

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 at no time has the Supreme Court expanded the pro­
tection of the amendment beyond the franchise. Even with 
the recognition that the Fifteenth Amendment created af- 
[fol. 35] firmative rights,7 the court has not gone beyond the 
protection of the voter per se. Likewise, MacDonald v. 
Key? which is urged on us as controlling, recognized that 
the right to vote is not involved in a statute requiring racial 
designations on the ballot. Moreover the facts of the case 
do not suggest a restriction on voting rights. The un­
fathomable 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 cto 
not validly assert a right under the Fifteenth Amendment.

There is a creeping tendency, when dealing with prob­
lems in the area of the First and Fourteenth Amendments,9

4 Brown v. Board of Education, 347 U. S. 483; Bolling v. Sharp, 
347 U. S. 497.

5 U. S. Constitution Amend., XY.
Sec. 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; United States v. Classic, 313 
U. S. 299.

7 Ex parte Yarborough, 110 U. S. 651; Gwinn v. United States, 
238 U. S. 347.

8 224 F. 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 case



30

to outlaw State statutes on the grounds of their lack of 
rightness or wisdom, while under the misapprehension that 
only their constitutionality is being tested. This the Su­
preme Court has told us, more than once, we may not do.10 
With due respect for our federalism, the court must ex­
amine the Constitution and the various lines of Supreme 
Court decisions and determine if the State action contra­
venes the Constitution. The examination must be liberal 
so as not to exalt form over substance; it must be cir­
cumspect so as to accord the states their just powers.11 
[fol. 36] Plaintiffs’ reliance on the Fourteenth Amend­
ment suggests two lines of Supreme Court cases which 
might control this action. The first of these is the right to 
anonymity defined in N.A.A.C.P. v. Alabama-, 357 U. S. 449. 
This case, plus Bates v. Little Rock, 361 II. S. 516, and 
Talley v. California, 362 U. S. 60, expounded the proposi­
tion that a person exercising freedom of speech or associa­
tion had a right to anonymity 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, explained that “the 
reason for these holdings was that identification and fear 
of reprisal might deter perfectly peaceful discussions of 
public matters of importance.”

dealing as it does with the powers of Congress. I t 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.

10 Carpenter’s Union v. Bitter’s Cafe, 315 II. S. 722.
Giboney v. Empire Storage Co., 336 U. S. 490.
Teamsters Union v. Banks, 339 U. S. 470; Building Service Em­

ployees v. Gazzam, 339 U. S. 532.
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 aus­
tere judgment, and a precise summary of the result may help to 
avoid misconstruction.” Milk Wagon Drivers v. Meadowmoor, 312 
U. S. 287, 297.

12 N.A.A.C.P. v. Alabama, supra, at 462.



31

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 dis­
closure 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 ap­
pear on the ballot,14 will come out in the campaign. This 
pourt is not disposed to create a shield against the brightest 
light of public examination of candidates for public office.

The Court in Safe's, A . / L . i . v .  Alabama, and Talley, 
recognized that the right to anonymity could be abridged 
[fol. 37] 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 deter­
mine. Thus this court is not put to any balancing since no 
personal interests are placed in the scale opposite the State 
interest, whatever, it may be. We conclude that the Louisi­
ana statute does not violate the Fourteenth Amendment on 
that score.

The. second line of cases which appears applicable are the 
“state action” cases having their matrix in Shelly v. Krae- 
mer, 334 IT. S. 1, and Barrows v. Jackson, 346 IT. S. 249. 
It is insufficient to state that these cases are distinguishable 
because state action is clear in this case. These eases must 
be read for their meaning as well as their facts.

The first case is, of course, MacDonald 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

13 See MacDonald v. Key, 10 Cir. 224 F.2d 608.
14 La. B. S. 18:671.
15 See also Teamsters Union v. Hanke, 339 IT. S. 470, 474. 
Teamsters Union v. Vogt, Inc., 354 U. S. 284.



32

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 
constitutional 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 CoiirFneed not have gone further, and it 
did not. This is not the case before us. Here all candidates 
mTst"stafe their race and have it printed od the balldtr 
Plaintiffs must look further to find uneonstitutionalityT 

Plaintiffs wouldhave us find in Shelly v. Krdenier and 
its progeny some principle which would deter a state from 
placing racial classifications on the ballot. A brief synopsis 
[fol. 38] of the principle of these cases is in order. The 
Supreme Court, in the first instance, recognized that dis­
crimination by private individuals was beyond the scope 
of the Fourteenth Amendment under the Civil Rights 
Cases.1* To this was added the undeniable proposition 
that discrimination by the states was improper under the 
Fourteenth Amendment. Further the Court held that os­
tensibly private discrimination which was in fact enforced 
by the state was discriminatory “state action” under the 
Fourteenth Amendment.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 right to vote,19 or segregating buses,20

16109 U. S. 3. See Shelly v. Kraemer, 334 U. S. 1, 13.
17 Shelly v. Kraemer, supra; Barrows v. Jackson, 346 U. S. 249; 

Terry v. Adams, 345 U. S. 461; Burton v. Wilmington Parking 
Authority, 365 U. S. 715.

18 Shelly v. Kraemer, supra; Barrows v. Jackson, supra.
19 Terry v. Adams, supra.
20 Boman v. Birmingham Transit Company, 5 Cir. 280 F. 2d 531.



33

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.25 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 
[fol. 39] the court to take notice that discrimination among 
the electorate will somehow occur as a result of this stat­
ute.27 Precisely how this discrimination against plaintiffs 
can be discovered is not made clear, much less how the 
state controls the discrimination through this statute. 
Nothing that we can find in the state action cases suggests 
that a court may take a state statute, and gaze into the 
future, seeking some gossamer possibility of discrimination 
in a group of individuals wholly beyond the control of the 
state. The discrimination must be real and the state must 
effect it. On this record we find a nondiscriminatory stat­
ute 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

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. No. 19298 May 17, 

1962.
24Shelly 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 it 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. Doud, 354 U. S. 457.

27 Plaintiffs’ 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.



34

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 
request for preliminary injunction is denied.

E. G-ordon West, United States District Judge. 
Frank B. Ellis, United States District Judge.

June 29,1962

[fol. 40] Before Wisdom, Circuit Judge, and West and 
Ellis, District Judges.

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 bal­
lot. 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 
“colored”, 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 classi­
fication 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. In that case the court passed on an 
Oklahoma statute requiring that any “candidate who is 
other than of the white race, shall have his race designated 
upon the ballots in parenthesis after his name.” Under the 
Oklahoma constitution, the phrase “white race” includes



35

not only members of that race, but members of all other 
races except the negro race. The court held that this re­
sulted in a denial of equality of treatment with respect to 
negroes who run for office. As a practical matter, in Okla- 
[fol. 41] homa, the omission of any racial designation on 
the ballot amounted to the candidate identifying 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 intended to be ac­
complished 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 information and 
stimulus for racial discrimination in the voting booth.

The State’s imprimatur on racial distinctions on the bal­
lot is no more valid than the State’s imprimatur on sep­
arate voting booths. In Anderson v. Courson, 1962, 203 
F. Supp. 806 the District Court for the Middle District of 
Georgia held that maintenance of racially segregated vot­
ing 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”. (Judge Bootle, 203 F. Supp. 
at 811.)

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 
its power and prestige behind a policy of racial elassifica- 
[fol. 42] tion inconsistent with the elective processes. Jus­
tice 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



36

the area of state action with respect to the ballot and the 
voting booth.

I respectfully dissent.

[fol. 43] [File endorsement omitted]

I n U n it e d  S tates D istr ic t  C ourt 
F oe t h e  E astern  D istrict  oe L ouisia n a

B aton R ouge D iv isio n  

Civil Action No. 2623

[Title omitted]

M otion  fo e  L eave to F il e  A m ended  oe S u p p l e m e n t a l  
C o m pl a in t— Filed September 19, 1962

Plaintiff moves this Court for leave to file the attached 
Amended or Supplemental Complaint on the ground that 
the transactions, occurrences, and events stated therein 
have happened since the date of plaintiff’s original com­
plaint and that it is in the interest of justice that all issues 
between plaintiff and defendant be litigated in this action.

Respectfully submitted,
Johnnie A. Jones, 530 South 13th Street, Baton 

Rouge 2, Louisiana; Jack Greenberg, James M. 
Nabrit, III, Michael Meltsner, Norman Amaker, 
10 Columbus Circle, Suite 1790, New York 19, 
New York, Attorneys for Complainants.



37

[fol. 44]
Isr U n it e d  S tates D istr ic t  C ourt 

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

B aton  R ouge D iv isio n

Civil Action No. 2623

[Title omitted]

P roposed A m ended  or S u p p l e m e n t a l  C o m pla in t

I
Jurisdiction

The jurisdiction of this Court has been invoked and is 
further invoked pursuant to Title 28, United States Code, 
Section 1343(3) in that: this action is authorized by Title 
42, United States Code, Section 1983, to be commenced by 
any citizen of the United States or other person within the 
jurisdiction thereof to redress the deprivation under color 
of state law, statute, ordinance, regulation, custom or 
usage of any right, privilege or immunity secured by the 
Fourteenth Amendment and the Fifteenth Amendment to 
the Constitution of the United States and secured by Title 
42, United States Code, Section 1971(a) and 1981, providing 
that all citizens of the United States shall be entitled and 
[fol. 45] allowed to vote without distinction of race and 
for the equal rights of citizens and of all persons within the 
jurisdiction of the United States.

The jurisdiction of this Court has been invoked pursu­
ant to Title 28, United States Code, Section 2281, this being 
an action for a permanent injunction restraining, upon the 
grounds of unconstitutionality, the enforcement of Act No. 
538 of the 1960 Regular Session of the Louisiana Legisla­
ture, of which a duly certified photostat copy was appended, 
incorporated and made a part of complainants’ original 
complaint.

II
Complainants bring this action as a class action pursu­

ant to Rule 23(a)(3) of the Federal Rules of Civil Proce-



38

dure on tlieir own behalf and on the behalf of all other 
Negroes similarly situated with respect to the matter here 
involved. This class is so numerous as to make it imprac­
ticable to bring them all before the Court but there are 
common questions of law and fact, a common relief is 
sought, and complainants adequately represent the in­
terests of the class.

III
This is a proceeding pursuant to Title 28, United States 

Code, Sections 2201 and 2202 for a declaratory judgment, 
declaring the rights and other legal relations of complain­
ants and other Negroes similarly situated in the subject 
matter in controversy between the parties, to w it:

Whether Act No. 538 of the 1960 Regular Session of the 
Louisiana Legislature violates the rights, privileges and 
immunities of complainants and other Negroes similarly 
situated, as guaranteed by the Fourteenth and Fifteenth 
Amendments to the Constitution of the United States and 
[fol. 46] secured by Title 42, United States Code, Sections 
1971(a) and 1981 to seek and obtain public offices free from 
state imposed racial distinctions and discrimination and 
to vote free from abridgements, denials and distinctions 
imposed by the State?

IV
The original verified complaint in this action was filed 

on June 8, 1962. Complainants Dupuy H. Anderson and 
Acie J. Belton were then and are now citizens of the United 
States and residents of lawful age of the Parish of East 
Baton Rouge, State of Louisiana. Complainants on that 
date were duly qualified candidates for the democratic 
nomination to the office of school board member of East 
Baton Rouge Parish, Louisiana School Board, State of 
Louisiana, for the four year term. Complainant Anderson 
was a candidate from Ward One of East Baton Rouge 
Parish and complainant Belton was a candidate from WTard 
Two of East Baton Rouge Parish.



39

Y
The original verified complaint averred that the defen­

dant Wade 0. Martin, Jr., is a citizen of the United States 
and is the duly elected Secretary of State of Louisiana who, 
by the terms of Act No. 538 of the 1960 Regular Session 
of the Louisiana Legislature, is expressly charged with 
enforcing the provisions of said Act. On information and 
belief complainants allege that the defendant is presently 
the Secretary of State of the State of Louisiana and is 
currently charged with enforcing the provisions of the 
above-named Act.

VI
Complainants in the original verified complaint alleged 

that the operation and enforcement of said Act, No. 538, 
[fol. 47] invades, denies and abridges their rights, privi­
leges and immunities as guaranteed by the Fourteenth 
and Fifteenth Amendments to the Constitution of the 
United States and as secured by Title 42, United States 
Code, Sections 1971(a) and 1981 in that said Act by its 
purpose and effect imposes a disability and burden on the 
exercise of their rights and privileges to seek and obtain 
public office based solely on race; and that, further, said 
Act by its purpose and effect places the power and prestige 
of the State of Louisiana behind distinctions based solely 
on race and that said Act by its purpose and effect 
abridges the right to vote of complainants and their sup­
porters. Complainants in the original verified complaint 
filed in this cause prayed the issuance of a preliminary and 
permanent injunction restraining the operation and en­
forcement of said Act No. 538.

VII
Complainants further allege that on June 11, 1962 their 

motion for a temporary restraining order on the grounds 
of immediate and irreparable injury was denied by order 
of this Court. Complainants also allege that their motion 
for preliminary injunction on similar grounds was denied 
on June 26, by order of this Court.



40

VIII
The primary election in which complainants were candi­

dates was held in the Parish of East Baton Rouge on July 
28, 1962. Complainants allege that the provisions of Act 
No. 538 were in full force and effect at that time. Com­
plainants allege on information and belief that every ap­
plication, identification or declaration of candidacy and 
every certificate of nomination and all nomination papers 
pertaining to them specified their race and that the ballots 
[fol. 48] used in said primary election specified their race 
by notation in parenthesis succeeding their names. In the 
democratic primary election held in the Parish of East 
Baton Rouge on July 28, 1962, complainant Anderson was 
defeated. Complainant Belton was defeated in the runoff 
election held on September 1, 1962. Each complainant al­
leges that his unsuccessful candidacy was influenced sub­
stantially by the operation and enforcement of Act No. 
538. Complainants further allege that the continued oper­
ation and enforcement of Act No. 538 invade, deny and 
abridge their rights, privileges and immunities as guaran­
teed by the Fourteenth and Fifteenth Amendments to the 
Constitution of the United States and as secured by Title 
24, United States Code, Sections 1971(a) and 1981 in that 
said Act by its purpose and effect imposes a disability and 
burden on complainants in the exercise of their right and 
privilege to seek and obtain public office not shared by 
other candidates for office; and that said Act by its purpose 
and effect places the power and prestige of the State behind 
distinctions based solely on race and that said Act by its 
purpose and effect abridges their right to vote and the right 
to vote of their supporters and the members of the class 
they represent.

IX
Complainants allege that they intend to be candidates in 

the next duly constituted 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 of East Baton Rouge and in the



41

State of Louisiana in the future. Complainants allege that 
the continued operation and enforcement of Act No. 538 
will violate their rights to equal protection of the laws and 
the due process of law guaranteed under the Fourteenth 
Amendment to the Constitution of the United States.
[fol. 49]

X
Complainants also allege that they are duly registered 

voters in East Baton Rouge Parish who fully intend to vote 
in all future elections held in the Parish of East Baton 
Rouge. Complainants aver that the continued operation 
and enforcement of Act No. 538 will have the effect of 
impairing the efficacy of their votes and therefore will de­
prive them of their right to vote as guaranteed under the 
Fifteenth Amendment to the Constitution of the United 
States.

Wherefore, complainants pray:
1) That the Court advance the complaint on the docket 

and order a speedy hearing thereof according to law and 
that upon such hearing the Court enter a permanent in­
junction to enjoin and restrain the defendant, his subor­
dinates, agents, and employees from enforcing Act No. 538 
of the 1961 Regular Session of the Louisiana Legislature 
on the grounds that said Act is unconstitutional, null, void, 
invalid, and without legal force and effect in that said Act 
is in violation of the Fourteenth and Fifteenth Amend­
ments to the Constitution of the United States and Title 
42, United States Code, Sections 1981, 1971(a).

2) The Court adjudge, decree and declare the right and 
legal relations of the parties to the subject matter here 
in controversy and that such declaration shall have the 
force and effect of a final judgment or decree and that the 
Court adjudge, decree and declare that Act No. 538 of the 
Regular Session of the Louisiana Legislature for 1960 is 
unconstitutional, void and invalid and in violation of the 
[fol. 50] Fourteenth and Fifteenth Amendments to the 
United States Constitution.



42

Respectfully submitted,
Johnnie A. Jones, 530 South 13th Street, Baton 

Rouge 2, Louisiana; Jack Greenberg, James M. 
Nabrit, III, Michael Meltsner, Norman Amaker, 
10 Columbus Circle, Suite 1790, New York 19, New 
York, Attorneys for Complainants.

Certificate of Service
This is to certify that I have th is___ day of September,

1962 served a copy of the foregoing Amended or Supple­
mental Complaint together with a Motion for Leave to File 
same and a proposed Order Granting Leave upon the 
Honorable Jack P. F. Gremillion, Attorney General of the 
State of Louisiana at the State Capitol, Baton Rouge, 
Louisiana, by United States mail postage prepaid.

Johnnie A. Jones, Attorney for Complainants.

[fol. 51] [File endorsement omitted]

I n  U n ited  S tates D istr ic t  C ourt 
F or t h e  E astern  D istr ic t  of L ouisiana

B aton  R ouge D iv isio n

Civil Action No. 2623

.[Title omitted]

P roposed O rder Gr a n tin g  L eave to F il e  A m ended  or 
S u p p l e m e n t a l  C o m pla in t

This cause came on to be heard on plaintiff’s motion for 
leave to file an amended or supplemental complaint herein, 
and the Court being fully advised,

It Is Ordered (1) that plaintiff be given leave to file a 
supplemental complaint; (2) that defendant answer or 
move with respect to the supplemental complaint within 
twenty days after the date of this order.
Date: ................................... , 1962

................................, United States District Judge.



43

D e n ia l  of M otion  for  L eave to F il e  A m ended  and 
S u p p l e m e n t a l  C o m pl a in t— September 19, 1962

Motion for leave to file Amended & Supplemental Com­
plaint Denied. Further ordered that no service of the 
proposed amended complaint need be made.

Sept. 19,1962
E. Gordon West, U. S. District Judge.

[fol. 52]
I n  U n it e d  S tates D istrict  C ourt 

F or t h e  E astern  D istr ic t  oe L ouisiana

B aton  R ouge D iv isio n  

Civil Action No. 2623

[Title omitted]

To: Johnnie Jones, Esq., Jack P. F. Gremillion, Esq. 
Attorneys for Parties:

In accordance with Rule 77(d) of the Federal Rules of 
Civil Procedure, you are hereby notified that the Court 
(Judge West) has on September 19, 1962 rendered an 
Order that the motion of plaintiff for leave to file amended 
and supplemental complaint is Denied and has further 
Ordered that no service of the proposed amended complaint 
need be made.

Very truly yours,
A. Dallam O’Brien, Jr., Clerk, By: Mary Ann San­

ford, Deputy Clerk.
mas



44

[fol. 53]
I n U n it e d  S tates D istr ic t  C ourt 

F or t h e  E astern  D istr ic t  oe L ouisia n a

B aton  R ouge D iv isio n  

Civil Action. No. 2623

D u p u y  H. A nderson  

and
A cie  J. B e l t o n , Complainants, 

v.
W ade 0 .  M a r t in , J r., Defendant.

Order D e n y in g  I ssu a n ce  oe P e r m a n e n t  I n ju n c t io n  
—September 28, 1962

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 
reasons stated in its opinion, plaintiffs are not entitled to 
the relief sought,

It Is Ordered that plaintiffs’ prayer for the issuance of 
a permanent injunction be and the same is hereby denied.

Dated Sept. 28,1962.
[fol. 54] E. Gordon West, United States District 

Judge.
Frank B. Ellis, United States District Judge.

John Minor Wisdom, United States Circuit Judge, Dis­
senting.



45

[fol. 55] [File endorsement omitted]

1st U n it e d  S tates D istrict  Court 
F ob t h e  E astern  D istr ic t  of L ouisiana

B aton B ouge D iv isio n

Civil Action Number 2623

D u p u y  A nderson  and A cie  J .  B e lto n , Plaintiffs, 
versus

W ade O. M a r t in , J r ., Defendant.

Transcript of Stipulation—June 26, 1962
Transcript of Stipulation entered into in Open Court 

in the above entitled and numbered cause heard at the 
United States District Courthouse, New Orleans, Louisi­
ana, on June 26, 1962 before the Honorable John Minor 
Wisdom, Judge, United States Court of Appeals, Fifth 
Circuit; the Honorable E. Gordon West, Judge, United 
States District Court; and the Honorable Frank B. Ellis, 
Judge, United States District Court, presiding.

A ppe a r a n c e s :

Jack Greenberg, Esq., and Johnnie A. Jones, Esq., At­
torneys for Plaintiffs.

Harry Fuller, Esq., and Thomas McFerrin, Esq., As­
sistants Attorney General, State of Louisiana, Attorneys 
for Defendant.

(Argument on Motions Filed by Defendant.)

[fol. 56]
C olloquy  B e t w e e n  C ourt and C o u n sel

Judge Wisdom: Mr. Greenberg, you may now proceed. 
Mr. Greenberg: If you will give up about two minutes, 

your Honors, answer was just filed and apparently it admits



46

everything that we intended to prove. If we can check to 
gee that we don’t omit anything, it may not be necessary to 
put on any proof.

Judge Wisdom: I was just wondering if you could not 
enter into stipulation here that would probably cover all of 
the facts and expedite this matter? We will give you a 
recess if you wish.

Mr. Greenberg: May we have five minutes ?
Judge Wisdom: Will that be enough? We will take as 

long as you need.
Mr. Greenberg: About a five or ten minute recess.
Judge Wisdom: If you need more time, we will give you 

more time. Mr. McFerrin, what would you say?
Mr. McFerrin: That is fine.

[fol. 57] Judge Wisdom: We will be in recess for ten 
minutes. Court will be in recess for about ten minutes.

(Recess 10:25 A.M. to 10:35 A.M.)
Judge Wisdom: Do you have a stipulation Mr. Green­

berg and Mr. McFerrin?
Mr. Greenberg: Yes, sir. I will read this, subject to 

Mr. McFerrin’s agreement that I have stated it correctly. 
It is a four part stipulation.

1. The defendant in this case is a ministerial officer re­
quired to follow the statute, and that he causes the ballots 
to be printed in accordance with the provisions of the 
statute.

2. Johnnie Jones is a member of the Negro race and 
is a qualified candidate for the office of District Judge in 
East Baton Rouge.

3. Johnnie Jones is an attorney in the Bell case hereto­
fore mentioned by the defendant.

4. Bell is an attorney of record in this case.
Those last two stipulations were requested by the defen­

dant.
Did I state it right ?

[fol. 58] Mr. McFerrin: We would like to add that he is 
an attorney in this case and in the Bell case.



47

Mr. Greenberg: That is correct.
Judge Wisdom: Do you have any further testimony! 

Do you have any further evidence that you want to put in?
Mr. Greenberg: I might merely point out to the Court 

that there was an answer filed admitting paragraphs 4-A 
and 4-C of the complaint. We consider that we have proved 
all of the material allegations, the remaining allegations 
of the complaint being procedural and jurisdictional in 
nature.

Mr. McFerrin: The stipulation is concurred in. We have 
admitted these two sections.

Judge Wisdom: You have nothing further?
Mr. Greenberg: If you would like to hear argument ?
Judge Wisdom: We do expect to hear argument now, 

but we want to make sure that you have the record in such 
a shape that you are both satisfied with it.
[fol. 59] Mr. McFerrin: I wall proceed, now, if your 
Honors so desire.

Judge Wisdom: Suppose we let Mr. Greenberg argue 
first and then you argue.

(Argument of Counsel.)

Reporter’s Certificate
The undersigned in his capacity of Official Court Re­

porter for the United States District Court hereby cer­
tifies the foregoing four and one-fifth pages constitute the 
transcript of his official Stenograph record made by him 
in the above entitled and numbered cause, at the time and 
place first hereinabove stated.

Baton Rouge, Louisiana, October 5,1962.
Felix L. Olivier, Official Court Reporter, United 

States District Court, Eastern District of Louisi­
ana, Baton Rouge Division.



48

[fol. 60] [File endorsement omitted]

I n  U n it e d  S tates D istrict  C ourt 
F or t h e  E astern  D istr ic t  oe L ouisiana

B aton  R ouge D iv isio n  

Civil Action No. 2623

[Title omitted]

N otice  oe A ppe a l  to t h e  S u pr e m e  C ourt oe t h e  
U n it e d  S tates—Filed October 25,1962

I. Notice is hereby given that Dupuy H. Anderson and 
Acie J. Belton, the plaintiffs above named, hereby appeal 
to the Supreme Court of the United States from the final 
order denying plaintiffs’ prayer for the issuance of a per­
manent injunction entered in this cause on October 3, 1962.

This appeal is taken pursuant to 28 U.S.C. §1253.

II. The clerk will please prepare a transcript of the 
record in this cause for transmission to the Clerk of the 
Supreme Court of the United States, and include in said 
transcript the following:

1. The verified complaint.
2. Plaintiffs’ motion for temporary restraining order.
3. Minute entry of June 11, 1962 denying the motion for 

temporary restraining order.
[fol. 61] 4. Plaintiffs’ motion for preliminary injunction.

5. Defendant’s motion to dismiss for lack of jurisdiction 
and of abatement.

6. Defendant’s answer.
7. Transcript of stipulation of plaintiffs and defendant 

of June 26,1962.
8. Order denying plaintiffs’ request for preliminary in­

junction.



49

9. Opinion of the court of June 29,1962.
10. Dissenting opinion of Judge Wisdom.
11. Plaintiffs’ motion for leave to file amended or sup­

plemental complaint.
12. Plaintiffs’ amended or supplemental complaint.
13. Order denying motion for leave to file amended or 

supplemental complaint.
14. Order denying plaintiffs’ request for a permanent 

injunction.
15. This notice of appeal.

III. The following questions are presented by this ap­
peal:

1. Whether Act No. 538 of the 1960 Regular Session of 
the Louisiana Legislature violates the equal protection and 
due process clauses of the Fourteenth Amendment to the 
Constitution of the United States.

2. Whether Act No. 538 of the 1960 Regular Session of 
the Louisiana Legislature violates the Fifteenth Amend- 
[fol. 62] ment to the Constitution of the United States.

Jack Greenberg, 10 Columbus Circle, Room 1790, 
New York 19, N. Y., Attorney for Appellants.

[fol. 63] Proof of Service (omitted in printing).

[fol. 64] Clerk’s Certificate to foregoing transcript 
(omitted in printing).



50

[fol. 65]
S u p r e m e  C ourt of t h e  U n it e d  S tates 

No. 684—October Term, 1962

D u p u y  H . A n d erso n , et al., Appellants, 
vs.

W ade 0 .  M a r t in , J r.

Appeal from the United States District Court for the 
■Eastern District of Louisiana.

Order N otin g  P robable J u r isd ic tio n

The statement of jurisdiction in this case having been 
submitted and considered by the Court, probable jurisdic­
tion is noted and the case is placed on the summary cal­
endar.

February 18,1963