Allen v. County School Board of Prince Edward County, VA Brief for Appellees

    IN THE

Supreme Court of the United States
October Term, 1967

No.

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

STATEMENT OF APPELLEES OPPOSING JURISDICTION 
AND MOTION TO AFFIRM

R obert Y. B utton  
Attorney General of Virginia

R. D. M cI l w a in e , I I I
Assistant Attorney General

Supreme Court-State Library Building 
Richmond, Virginia 23219

JAMES M. NABRlT, HI



TABLE OF CONTENTS
Page

P r e l im in a r y  S t a t e m e n t .............................................................................  1

P rior  P r o c e e d in g s ...........................................................................................  2

S t a t e m e n t  Of F acts .............................................................................    3

S ta tu tes  I nvolved .................    6

Q u estio n  P r e s e n t e d ......................................................................................  7

A r g u m en t  ..........................................................   7

Section 24-252 Of The Virginia Code Is Not Violative Of The 
Fourteenth Amendment To The Constitution Of The United 
States Or The Voting Rights Act Of 1965 ................................. 7

Co n c lu sio n  ........................................................................................  13

TABLE OF CITATIONS 

Cases

Allen v. State Board of Elections, 268 F. Supp. 218....................... 3

Blackman v. Stone, 7 Cir., 101 F. (2d) 500 ............. ..... -..............  10

Fletcher v. Wall, 172 111. 426, 50 N.E. 230 .... ..... ................ .......  10

McSorley v. Schroeder, 196 111. 99, 63 N.W. 697 ..........................  10

Roberts v. Quest, 173 111. 427, 50 N.E. 1073 ................................. 10

South Carolina v. Katzenbach, 383 U.S. 301 ...............................~ 7

Other Authorities

Code of Virginia (1950) :
Section 24-251 ........................................................................ 5, 6, 8



Page

Section 24-252.................................................................... 2, 6, 7, 9

Constitution of the United States:
Fourteenth Amendment............................................................ 2, 12

28 U.S.C.A., Sections 1331 and 1343(3), (4) .................................  2

28 U.S.C.A., Sections 2281 and 2284 ..............................................  2

42 U.S.C.A., Section 1973 et se q ....................................-..... ....... 2, 11



IN THE

Supreme Court of the United States
October Term, 1967

No.

RICHARD ALLEN, et  a l ., 

v.
Appellant,

STATE BOARD OF ELECTIONS, e t  a l .,
Appellees.

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

STATEMENT OF APPELLEES OPPOSING JURISDICTION 
AND MOTION TO AFFIRM

PRELIMINARY STATEMENT

By letter of the Honorable John F. Davis, Clerk of the 
Supreme Court of the United States, dated December 5, 
1967, the Attorney General of Virginia was requested to 
file a response to the appeal taken from an order of the 
United States District Court for the Eastern District of 
Virginia denying appellants’ request for injunctions and 
dismissing their complaint. In accordance with the request



2

contained in the above-mentioned communication,* written 
by the Clerk at the direction of this Court, the within re­
sponse is filed. The appellees, believing the matters set forth 
herein will demonstrate the lack of substance in the ques­
tions sought to be presented by this appeal, file this state­
ment in opposition to appellees’ jurisdictional statement and 
include their motion to affirm the judgment of the court 
below upon the ground that the question on which the deci­
sion of this cause depends is so unsubstantial as to obviate 
further argument.

PRIOR PROCEEDINGS

On November 26, 1966, appellants instituted in the 
United States District Court for the Eastern District of 
Virginia this suit for preliminary and permanent injunc­
tions allegedly to restrain the enforcement, operation and 
execution of Section 24-252 of the Code of Virginia (1950) 
by restraining the defendant election officials and their suc­
cessors in office from failing or refusing to count, and from 
requiring or permitting any other election officials to fail 
or refuse to count, any vote hereafter given for any person 
solely because the name of such person was inserted on the 
official ballot otherwise than in the handwriting of the 
voter.

Jurisdiction was invoked under 28 U.S.C.A. 1331 and 
1343(3), (4) ; the Voting Rights Act of 1965, 42 U.S.C.A. 
1973 et seq.; the Fourteenth Amendment to the Constitution 
of the United States and 28 U.S.C.A. 2281 and 2284— 
the latter two statutes providing for the convening of a 
District Court of three judges to hear and determine suits 
in which restraint of the enforcement of a State statute,

* Post, Appendix A.



3

upon the ground of such statute’s constitutionality, is 
sought.

A District Court of three judges having been designated 
by the Chief Judge of the United States Court of Appeals 
for the Fourth Circuit, the matter was heard on the merits 
on April 11, 1967. Subsequently, the District Court rendered 
its opinion denying the prayer of appellants’ complaint and 
dismissing the suit. See, Allen v. State Board of Elections, 
268 F. Supp. 218. On May 2, 1967, a final order effectuating 
this opinion was entered. Jurisdictional Statement, Ap­
pendix, p. 9 a.

STATEMENT OF FACTS

Plaintiffs are citizens of the Commonwealth of Virginia 
registered to vote in one of the precincts or wards of one of 
the several counties and cities comprising the Fourth Con­
gressional District of Virginia. Defendants are the State 
Board of Elections of the Commonwealth of Virginia and 
various individuals who were, on November 8, 1966, either 
judges or clerks of election in certain precincts located in 
Greenville County, Cumberland County and Powhatan 
County, Virginia.

Plaintiffs allege that, at the general election held on 
November 8, 1966, they were furnished official ballots on 
which were printed the names of two candidates for election 
to the House of Representatives of the United States from 
the Fourth Congressional District of Virginia. They further 
allege (1) that they inserted the name “S. W. Tucker” on 
the official ballot, immediately under the names of the two 
candidates printed thereon, by pasting on the official ballot 
a sticker or paster upon which the name “S. W. Tucker” 
had been printed and (2) that they made a check, cross mark 
or line on the ballot immediately preceding the name thus 
inserted and thereafter deposited such ballots in the ballot



4

boxes. The ballots thus altered or marked were not officially 
counted or included in the official returns as votes validly 
cast for the said S. W. Tucker.

On August 6, 1965, the Voting Rights Act of 1965 
(Public Law 89-110, 79 Stat. 437) enacted by the Congress 
of the United States became effective in Virginia. This Act 
had the effect of suspending literacy tests and similar voting 
qualifications throughout the Commonwealth for a specified 
period by prescribing that no person might be denied the 
right to vote in any election because of his failure to comply 
with a “test or device” as defined by the statute. As used 
throughout the Act, the phrase “test or device” means any 
requirement that a registrant or voter must (1) demon­
strate the ability to read, write, understand, or interpret any 
matter, (2) demonstrate any educational achievement or his 
knowledge of any particular subject, (3) possess good moral 
character, or (4) prove his qualifications by the voucher 
of registered voters or members of any class.

On August 12, 1965—within a week of the effective date 
(August 6, 1965) of the Voting Rights Act of 1965— 
the Honorable Levin Nock Davis, Secretary of the de­
fendant State Board of Elections, sent to all registrars of 
the Commonwealth of Virginia a bulletin advising them 
that the Voting Rights Act of 1965 was in force in Virginia 
and that use of the Virginia registration form in the manner 
formerly required by Virginia law was prohibited. The 
above-mentioned bulletin contained the following instruc­
tions :

“The Registrar shall review the forms in the pres­
ence of the applicant to insure that all questions are 
answered clearly and completely. If all questions are 
not answered clearly and completely, or if the applicant 
is not able personally to complete the forms in whole or 
in part because of lack of literacy or otherwise, or has



5

difficulty in doing so, the Registrar shall orally examine 
the applicant and record the pertinent information on 
the forms or otherwise assist the applicant in com­
pleting the forms. After the forms are completed, the 
Registrar shall require the applicant to take an oath or 
affirmation as to the truth of the answers and to sign 
his name or make his mark thereon.”

Subsequently, on October 15, 1965 Mr. Davis also sent 
to the general registrars and the secretaries of the various 
electoral boards throughout the Commonwealth—to be de­
livered by the latter to all judges of election—a further 
bulletin which informed and instructed all judges of election 
that:

“On August 6, 1965, the ‘Voting Rights Act of 
1965’ enacted by the Congress of the United States 
became effective and is now in force in Virginia. Under 
the provisions of this Act, any person qualified to vote 
in the General Election to be held November 2, 1965, 
who is unable to mark or cast his ballot, in whole or 
in part, because of a lack of literacy ( in addition to any 
of the reasons set forth in Section 24-251 of the Vir­
ginia Code) shall, if he so requests, be aided in the 
preparation of his ballot by one of the judges of elec­
tion selected by the voter. The judge of election shall 
assist the voter, upon his request, in the preparation of 
his ballot in accordance with the voter’s instructions, 
and shall not in any manner divulge or indicate, by 
signs or otherwise, the name or names of the person or 
persons for whom any voter shall vote.

“These instructions also apply to precincts in which 
voting machines are used.”

The instructions contained in the above-mentioned bulle­
tins continue in full force in the Commonwealth so long as 
the Voting Rights Act of 1965 remains effective in Virginia.



6

THE STATUTES INVOLVED

Under consideration in the instant proceedings are Sec­
tions 24-251 and 24-252 of the Code of Virginia (1950) 
as amended which provide:

“§ 24-251.—Any person registered prior to the 
first of January, nineteen hundred and four, and any 
person registered thereafter who is physically unable 
to prepare his ballot without aid, may, if he so requests, 
be aided in the preparation of his ballot by one of the 
judges of election designated by himself, and any per­
son registered, who is blind, may if he so requests, be 
aided in the preparation of his ballot by a person of 
his choice. The judge of election, or other person, so 
designated shall assist the elector in the preparation of 
his ballot in accordance with his instructions, but the 
judge or other person shall not enter the booth with 
the voter unless requested by him, and shall not in any 
manner divulge or indicate, by signs or otherwise, the 
name or names of the person or persons for whom any 
elector shall vote. For a corrupt violation of any of the 
provisions of this section, the person so violating shall 
be deemed guilty of a misdemeanor and be confined in 
jail not less than one nor more than twelve months.”

“§ 24-252.—At all elections except primary elections 
it shall be lawful for any voter to place on the official 
ballot the name of any person in his own handwriting 
thereon and to vote for such other person for any office 
for which he may desire to vote and mark the same by 
a check (V) or cross (X  or -j-) mark or a line (—) 
immediately preceding the name inserted. Provided, 
however, that nothing contained in this section shall 
affect the operation of § 24-251 of the Code of Virginia. 
No ballot, with a name or names placed thereon in vio­
lation of this section, shall be counted for such person.”



7

QUESTION PRESENTED

Is Section 24-252 of the Virginia Code violative of the 
Fourteenth Amendment to the Constitution of the United 
States or the Voting Rights Act of 1965 ?

ARGUMENT

Section 24-252 Of The Virginia Code Is Not Violative Of The 
Fourteenth Amendment To The Constitution Of The United 
States Or The Voting Rights Act Of 1965.

In the instant case, it is important to realize at the outset 
that the Virginia statute under attack by appellants—Sec­
tion 24-252 of the Virginia Code—has been superseded by 
the Voting Rights Act of 1965. With the advent of the 
Voting Rights Act, which suspended in Virginia any re­
quirement that a voter be able to read, write or understand 
any matter in registering to vote or in voting, the require­
ment of Section 24-252 that the inserted name of a “write- 
in” candidate be in the handwriting of the voter was super­
seded and was no longer enforceable or enforced in Virginia.

Equally important is it to realize that the above-stated 
propositions were conceded by appellees in this case from 
the beginning, and no attempt whatever was made to assert 
the efficacy of the challenged enactment in this regard. On 
the contrary, appellees established in evidence and empha­
sized in argument that within a week of the effective date of 
the Voting Rights Act of 1965—and before the case of 
South Carolina v. Katzenbach, 383 U. S. 301, was even 
instituted in this Court—the defendant State Board of 
Elections issued a bulletin instructing all registrars to 
register all persons who were unable themselves to register 
because of a lack of literacy. Ante, p. 4. The language in 
which this bulletin was couched was transposed almost ver­
batim from the Federal regulations implementing the Vot-



8

ing Rights Act, and the substantial identity of language 
clearly indicates that every effort was made to conform the 
applicable Virginia law precisely to the requirements of the 
Federal statute. See, Appendix B, post. In addition, on 
October 15, 1965—some three weeks before the first general 
election held in Virginia after the effective date of the Vot­
ing Rights Act—the defendant State Board of Elections 
sent to all general registrars and to all secretaries of the 
various local electoral boards for transmittal to all judges 
of elections, a further bulletin instructing all judges of 
elections to render assistance to any voter who was unable 
to mark or cast his ballot, in whole or in part, because of a 
lack of literacy. Ante, p. 5. As the District Court noted, 
the instructions contained in these bulletins continue in full 
force in the Commonwealth so long as the Voting Rights 
Act of 1965 remains effective in Virginia. Jurisdictional 
Statement, Appendix, p. 7a.

Despite the requirement of the challenged statute that 
the inserted name of a “write-in” candidate be placed on the 
ballot in the handwriting of the voter, provision is made, 
by the reference to Section 24-251 of the Virginia Code— 
for the assistance of physically handicapped voters by the 
judges of election, who are (1) authorized by the latter 
provision to assist a physically handicapped voter “in the 
preparation of his ballot in accordance with” the instruc­
tions of the voter and (2) forbidden, under penal sanction, 
from divulging or indicating in any manner, by sign or 
otherwise, the name or names of the persons for whom any 
physically handicapped voter cast his ballot. When the 
Voting Rights Act of 1965 became effective in Virginia, 
the provisions of Section 24-251 of the Virginia Code were 
broadened by the instructions of the State Board of Elec­
tions to include the educationally handicapped as well as



9

the physically handicapped within the provisions permitting 
assistance, and thus render Virginia law consistent with the 
commands of the Federal statute. These instructions of the 
State Board of Elections removed from the operative Vir­
ginia law any requirement that a person be able to comply 
with any “test or device” as defined in the Voting Rights 
Act.

In light of the foregoing, appellants cannot assert, and 
did not assert, that they are now required to be able to 
read or write in order to vote in Virginia, or that they 
are denied the right to vote for failure to comply with any 
test or device. With particular reference to the questions 
presented in the case at bar, Virginia law does not permit 
stickers or pasters to be utilized by voters in casting or 
marking their ballots under any circumstances, regardless 
of the physical or educational condition of the individual 
voter. In this connection, appellants assert that Section 24- 
252 of the Virginia Code—to the extent that it forbids them 
to utilize stickers or pasters in casting their ballots—in­
fringes rights secured to them by the Fourteenth Amend­
ment and the Voting Rights Act of 1965.

Initially in this connection, it is significant that no case 
supportive of appellants’ contention can be found. As the 
District Court pointed out (Jurisdictional Statement, Ap­
pendix, p. 3a) :

“The plaintiffs’ contention that Section 24-252 vio­
lates the Fourteenth Amendment because it discrimi­
nates against illiterates is not supported by authority.”

However, as the District Court also noted, there is no want 
of authority upon this point, and decisions sustaining and 
justifying a legislative determination to forbid the use of 
stickers or pasters are legion. In this connection, the District



10

Court observed (Jurisdictional Statement, Appendix, p. 
3a) :

“The propriety of stickers is a matter for legisla­
tive, not judicial determination. Arguments for and 
against their use abound. Stickers heme been lauded for 
facilitating voting and denounced as conducive to 
fraud and confusion. Their use has been approved 
under statutes permitting write-ins. Pace v. Hickey, 
236 Ark. 792, 370 S.W. 2d 66 (1963); O’Brien v. 
Board of Elections Comm’rs, 257 Mass. 332, 153 N.E. 
553 (1926) ; Dewalt v. Bartley, 146 Pa. 529, 24 A. 185, 
15 L.R.A. 771 (1892) ; State on Complaint of Tank v. 
Anderson, 191 Wis. 538, 211 N.W. 938 (1927). Illi­
nois forbade their use, Fletcher v. Wall, 172 111. 426, 
50 N.E. 230, 40 L.R.A. 617 (1898), and the constitu­
tionality of this ban has been upheld. Blackman v. 
Stone, 101 F. 2d 500, 504 (7th Cir. 1939). (Italics 
supplied.)

Squarely in point is the decision of the United States 
Court of Appeals for the Seventh Circuit in Blackman v. 
Stone, 7 Cir., 101 F. (2d) 500. That case was a class action 
by certain residents of Illinois challenging various provi­
sions of the election laws of that State. In a series of de­
cisions, the Supreme Court of Illinois had held that the use 
of stickers or pasters by voters was forbidden. See, Mc- 
Sorley v. Schroeder, 196 111. 99, 63 N.W. 697; Roberts v. 
Quest, 173 111. 427, 50 N. E. 1073; Fletcher v. Wall, 172 
111. 426, 50 N.E. 230. In the Blackman case, plaintiffs con­
tended, inter alia, that this provision of the Illinois law was 
violative of the Fourteenth Amendment. Rejecting this con­
tention the Court declared (101 F. (2d) at 504) :

“It is further contended by appellants that section 
288 of the law is invalid because it requires all voters



11

to vote by printed ballots furnished by the State and 
forbids the use of other ballots or pasters. There is no 
merit in this contention. The section is a reasonable ex­
pression of the will of the Illinois Legislature, and is 
not in any manner inconsistent with any provision of 
the Federal Constitution. (Italics supplied.)

Equally manifest is it that the statute in question in­
fringes no right secured to the appellants by the Voting 
Rights Act of 1965. In light of the present status of the 
election laws of the Commonwealth, previously emphasized 
in this brief, it cannot be denied that Virginia law now 
makes ample provision for the educationally handicapped 
voter to register and cast his ballot. Precisely in this con­
nection, the District Court declared (Jurisdictional State­
ment, Appendix, pp. 5a, 7a) :

“No evidence has been presented that Virginia’s 
prohibition of stickers has been administered in a dis­
criminatory manner. It has not been used to disfran­
chise any class of citizens.

*  *  *

“The requirement that a write-in candidate’s name 
be inserted in the voter’s handwriting is not a test 
or device defined in 42 U.S.C. § 1973b(c). The re­
quirement did not preclude the plaintiffs from register­
ing or from voting. Under present Virginia statutes 
and regulations of the Board of Elections, an illiterate 
can cast a valid write-in ballot by enlisting the assist­
ance of a judge of election. No evidence was offered 
that any judge of election denied any illiterate voter the 
confidential assistance to which he is entitled.” (Italics 
supplied.)

It is thus unarguably apparent that no citizen of Virginia, 
otherwise qualified to vote, is denied the right to vote in any 
election held in the Commonwealth because of his failure



12

to comply with any “test or device” as defined in the Voting 
Rights Act of 1965. Indeed, it is clear that the election laws 
of Virginia as interpreted and applied by the defendant 
State Board of Elections since the Voting Rights Act of 
1965 became operative in the Commonwealth are fully con­
sistent with all requirements of Federal law.

Essentially in this litigation, appellants assert that they 
have the right to select the means which they will employ to 
vote for a “write-in” candidate (i.e., by use of pasters or 
stickers) regardless of whether or not Virginia law au­
thorizes this method of voting. Apparently, the right exists 
only in Virginia, for it is clear from the decisional author­
ities cited by the District Court that the propriety of utilizing 
stickers or pasters in this fashion is a matter for legislative 
determination by each State, and statutes of other States 
barring use of stickers or pasters are not subject to consti­
tutional objection. Thus, as a constitutional proposition at 
least, appellants’ assertion necessarily entails a determina­
tion that the Fourteenth Amendment guarantees education­
ally handicapped voters in Virginia a right which it does 
not equally secure to educationally handicapped voters in 
other States.

Implicit in appellants’ position is the contention that the 
right to vote by means of stickers or pasters is a right 
guaranteed them by the Fourteenth Amendment and the 
Voting Rights Act of 1965. It is perfectly clear from the 
decisions of this Court, however—as the District Court 
pointed out—that the Fourteenth Amendment, per se, does 
not even guarantee an illiterate person the right to vote at 
all, much less to vote by a method of his own choosing. 
Moreover, there is obviously nothing in the Voting Rights 
Act of 1965 or any of its implementing regulations which 
even remotely suggests that this method of voting is even 
permissible, much less required, by the Federal statute.



13

Counsel for appellees submit that the provisions of Vir­
ginia law under attack in the instant case abridge no federal­
ly protected right of the appellants. Quite to the contrary, 
Virginia law treats with perfect equality all citizens of the 
Commonwealth, otherwise qualified to vote, who are unable 
to cast their ballots in their own handwriting, whether such 
inability is occasioned by a physical or an educational disabil­
ity. Surely, a statute which makes such even-handed provi­
sion for remedying the deficiencies confronting physically 
or educationally disabled voters cannot be violative of either 
the Fourteenth Amendment or the Voting Rights Act of 
1965.

CONCLUSION

In light of the foregoing, counsel for appellees submit 
that the question upon which the decision in this case 
depends is so unsubstantial as to obviate further argument 
and that the judgment of the District Court should be 
affirmed.

Respectfully submitted,
R obert Y. B u tton

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

CERTIFICATE OF SERVICE

I, R. D. McIlwaine, 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



14

the above-captioned matter, hereby certify that copies of this 
Statement of Appellees Opposing Jurisdiction and Motion 
to Affirm 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 
4th day of January, 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



15

APPENDIX “A”

OFFICE OF THE CLERK 
SUPREME COURT OF THE UNITED STATES 

WASHINGTON, D. C. 20543
December 5, 1967

The Honorable Robert Y. Button 
Attorney General of Virginia 
Supreme Court Building 
Richmond, Virginia 23219

R E : A l le n  e t  a l ., v. S ta te  B oard of 
E l ec tio n s  et  a l .
No. 661, October Term, 1967

Dear Sir :
An appeal was filed in this Court on September 28, 1967, 

in the above-entitled case, and my records indicate that you 
were served with a copy of the jurisdictional statement.

I have been directed by the Court to request that you 
file a response in this case. Such a response usually takes the 
form of a motion to dismiss or affirm. Forty printed copies 
of such a motion, together with proof of service thereof, 
should reach this office on or before January 4, 1968.

On December 4 the Court entered an order inviting the 
Solicitor General to file a brief expressing the views of the 
United States in this case.

Very truly yours,
J o h n  F. D avis, Clerk 
By / s /  E. P. Cu l l in a n  
E. P. Cullinan 
Chief Deputy.

EPC:jmh
cc: Jack Greenberg, Esq.

10 Columbus Circle 
New York, N. Y. 10019



APPENDIX “B”

F ederal R egister

V o l u m e  30—N u m b er  152
August 7, 1965
Title 45—Chapter 8
C iv il  S erv ice  Co m m issio n

P art 801—V o tin g  R ig h t s  P rogram

§ 801.203. Procedures for filing application.

(a) An applicant may obtain an application at the place 
and during the times set out in Appendix A for the appro­
priate political subdivision. An application may be completed 
only at the place where it was obtained and shall be sub­
mitted by the applicant in person to an examiner at that 
place.

(b) An examiner shall review the application in the 
presence of the applicant to insure that all questions are 
answered clearly and completely. If all questions are not 
answered clearly and completely or if an applicant is not 
able personally to complete the application in whole or in 
part because of lack of literacy or otherwise, or has dif­
ficulty in doing so, an examiner shall orally examine the ap­
plicant and record the pertinent information on the applica­
tion or otherwise assist the applicant in completing the 
application.

(c) After an application is completed, an examiner shall 
require the applicant to take the oath or affirmation pre­
scribed on the application and to sign his name or make his 
mark thereon.