Allen v. State Board of Elections Response of Appellees to the Memorandum for the United States

    In The

Supreme Court of the United States
October Term, 1967

No. 661

RICHARD ALLEN, et  a l„

v.
Appellant,

STATE BOARD OF ELECTIONS, et  a l .
Appellees.

Appeal from the United States District Court for the 
Eastern District of Virginia

RESPONSE OF APPELLEES TO THE MEMORANDUM 
FOR THE UNITED STATES

R obert Y. B u tto n

Attorney General of Virginia
R. D. M cI l w a in e , III 

Assistant Attorney General

Supreme Court-State Library Building 
Richmond, Virginia 23219

JAMES m. nabrot; hi



In The

Supreme Court of the United States
October Terra, 1967

No. 661

RICHARD ALLEN, et  a l .,
Appellant,

v.

STATE BOARD OF ELECTIONS, et  a l .,
Appellees.

Appeal from the United States District Court for the 
Eastern District of Virginia

RESPONSE OF APPELLEES TO THE MEMORANDUM 
FOR THE UNITED STATES

On February 14, 1968, the Solicitor General filed a 
memorandum expressing the views of the United States in 
the case at bar. The following day counsel for the parties 
were informed by letter of the Clerk of this Court that 
they would be permitted to file supplemental briefs on or 
before March 5, 1968. In accordance with the leave thus 
granted, this response of the appellees to the memorandum 
of the United States is filed.

As previously pointed out by appellees in their motion 
to affirm the judgment of the District Court, the Virginia 
State Board of Elections issued certain instructions to



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election officials throughout the State on August 12, 1965 
and October 15, 1965. The first instructions were promul­
gated within a week of the effective date (August 6, 1965) 
of the Voting Rights Act of 1965, and the second instruc­
tions were issued some three weeks before the first general 
election held in Virginia after the effective date of the 
Voting Rights Act. In effect, these instructions advised 
Virginia election officials (1) that the Voting Rights Act 
of 1965 had become effective in Virginia on August 6, 1965, 
and was “now in force in Virginia” and (2) that under the 
provisions of the Federal law, they were required to render 
assistance to educationally handicapped citizens who were 
unable to register or to vote because of a lack of literacy 
or otherwise. Emphasis supplied. See, Statement of Ap­
pellees Opposing Jurisdiction and Motion to Affirm, pp. 4-5. 
Essentially, the instructions in question advised such election 
officials that various provisions of Virginia law governing 
registration and voting had already been suspended by the 
Voting Rights Act and that they were immediately re­
quired to render assistance to prospective voters who were 
educationally handicapped.

The Solicitor General asserts that instructions of this 
character, particularly those issued on October 15, 1965, 
constitute a “practice, or procedure with respect to voting 
different from that in force or effect on November 1, 
1964” within the meaning of Section 5 of the Voting Rights 
Act, 42 U.S.C. 1973c, and states that it “would appear to 
follow that the new requirement could not be used without 
first passing the scrutiny of either the Attorney General or 
the United States District Court for the District of Colum­
bia.” See, Memorandum for the United States, pp. 6-7. The 
latter statement is referable to that portion of Section 5 
of the Voting Rights Act which suspends the efficacy of 
any State voting regulation promulgated after November 1,



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1964, unless there has been (1) submission of the rule to 
the Attorney General, in which case it may be used if no 
objection is interposed within sixty days; or (2) a declara­
tory judgment from the United States District Court for 
the District of Columbia that the rule “does not have the 
purpose and will not have the effect of denying or abridging 
the right to vote on account of race or color . . See, Memo­
randum for the United States, p. 6.

Counsel for appellees submit that the invalidity of the 
Solicitor General’s position is easily demonstrable. If the 
instructions issued in the case at bar were subject to the 
provisions of Section 5 of the Voting Rights Act, it 
necessarily follows that a State to which the Act applies 
could not adjust its procedures to comply with the require­
ments of the Federal law until they received permission 
to do so from the Attorney General or the District Court 
for the District of Columbia. The Solicitor General’s as­
sertion overlooks the fact that the instructions under con­
sideration were not promulgated to alter Virginia law as 
such, but were required to implement the Voting Rights 
Act which became effective on August 6, 1965. The So­
licitor General’s contention impels the conclusion that the 
Voting Rights Act, which became law on August 6, 1965, 
could not be made effective in practice without the prior 
consent of the Attorney General or the District Court. 
Such a conclusion is tantamount to the proposition that 
the Voting Rights Act could be suspended until the Attorney 
General or the District Court approved of a State’s instruc­
tions complying with the Act. Counsel for appellees submit 
that there is nothing in the Federal statute which even 
remotely evidences an intention on the part of the Congress 
to delay the effectiveness of the Voting Rights Act until 
such permission is first obtained.



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No one can say how many illiterate voters were registered 
pursuant to the instructions of the State Board of Elections 
within the first sixty days of the enactment of the Voting 
Rights Act—persons who could not properly have been 
registered during this period if the position of the Solicitor 
General is sound. Similarly, there is no way to ascertain 
how many illiterate voters were assisted in casting their 
ballots at the general election in November of 1965, pur­
suant to the instructions in question—voters who could not 
have been thus assisted had it been necessary to await the 
expiration of a sixty-day period following issuance of the 
instruction on October 15, 1965.

Moreover, the Solicitor General suggests that the Court 
remand this case to the District Court with instructions “to 
grant such relief as is necessary to guarantee that Virginia 
will refrain from imposing restrictions upon the manner 
of casting write-in votes pending compliance” with the re­
quirements of Section 5. This suggestion is obviously an 
attempt to convert the instant case into litigation of the 
character instituted by the United States in Alabama, 
Louisiana, Mississippi and South Carolina, as mentioned in 
the Solicitor General’s memorandum. See, Memorandum for 
the United States, p. 6, fn. 3. Such a suggestion surely 
undertakes to obscure the fact that no case warranting 
equitable relief has been made out in the instant litigation. 
As the District Court pointed out on two separate occasions 
in its opinion, no evidence was presented that Virginia’s 
prohibition of stickers or pasters had been administered in 
a discriminatory manner and no evidence was offered that 
any judge of election denied any illiterate voter the con­
fidential assistance to which he was entitled. See, Jurisdic­
tional Statement, Appendix, pp. 5a-7a. Indeed, even the 
Solicitor General admits that Virginia’s procedure for cast-



s
mg write-in votes by illiterates, on its face, has no purpose 
forbidden by the Voting Rights Act and that the Attorney 
General does not now have evidence that such a purpose 
existed. See, Memorandum for the United States, pp. 7-8. 
Thus, the suggestion that the case be remanded to the 
District Court is manifestly an effort to subject to the 
jurisdiction of a Federal court Virginia election officials 
against whom no suggestion of impropriety has been made.

The only relief sought by plaintiffs in the case at bar is 
that they be permitted to vote by means of stickers or past­
ers. As the District Court held, neither the plaintiffs nor any 
other Virginia citizen is accorded that right, either by the 
Fourteenth Amendment or by the Voting Rights Act of 
1965. The instant case is not now—and never was—a suit to 
obtain relief from alleged discriminatory registration or 
voting practices of Virginia election officials, and counsel 
for appellees submit that the Solicitor General cannot now 
convert it into such a suit at the ultimate level of appellate 
review.

For the foregoing reasons, counsel for appellees submit 
that the judgment of the District Court should be affirmed.

Respectfully submitted,
R obert Y. B u tto n

Attorney General of Virginia
R. D. M cI l w a in e , III 

Assistant Attorney General

Supreme Court-State Library Building 
Richmond, Virginia 23219



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CERTIFICATE OF SERVICE

I, R. D. Mcllwaine, III, an Assistant Attorney General 
of Virginia, a member of the Bar of the Supreme Court 
of the United States and one of the counsel for appellees 
in the above-captioned matter, hereby certify that copies 
of this Response of Appellees to the Motion for the United 
States have been served upon each of counsel of record for 
the parties herein by depositing the same in the United 
States Post Office, with first-class postage prepaid, this 5th 
day of March, 1968, pursuant to the provisions of Rule 
33(1) of the Rules of the Supreme Court of the United 
States, as follows: Jack Greenberg, Esq., and James M. 
Nabrit, III, Esq., 10 Columbus Circle, New York, New 
York 10019, and Oliver W. Hill, Esq., S. W. Tucker, 
Esq., Henry L. Marsh, III, Esq., and Harold M. Marsh, 
Esq., 214 East Clay Street, Richmond, Virginia 23219, 
counsel for appellants.

Assistant Attorney General