State of Louisiana v. United States of America Brief for the United States

    Jtt iltt j&tjrorae Gfonrt of the United States
O cto ber  T e r m , 1964 XJ

S t a t e  o f  L o u is ia n a , e t  a l ., a p p e l l a n t s

v.
U n it e d  S t a t e s  o f  A m e r ic a

'L l

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

BRIEF FOR THE UNITED STATES

A R C H IB A L D  COX,
Solieitor General, 

B U R K E  M A R S H A L L ,
Assistant Attorney General,

LO U IS E. C L A IB O R N E ,
Assistant to the Solid,tor Gen,oral, 

H A R O L D  H . G R E E N E ,
D A V ID  R U B IN ,
LOU IS M. K A U D E R ,

Attorneys,'
Department of Justice, 

Washington, D.C., 20SS0.



I N D E X

Bags
Opinion below___________________________________________  1
Jurisdiction_____________________________________________  1
Constitutional and statutory provisions involved_________  2

A. Provisions of general relevance___________________ 2
B. Provisions relevant to the “ understanding and

interpretation”  test (Question 2) ____________  2
C. Provisions relevant to the “ citizenship”  test

(Question 3 )__________________     4
Questions presented_____________________________________  6
Statement_______________________________________________  7

A. The pleadings and procedure____________________  7
B. The evidence___________________________________  11

1. The antecedents of the interpretation test. 11
2. The 1921 Constitutional Convention______ 16
3. The effect of the white primary___________ 20
4. The demise of the white primary, the deci­

sion in Brown v. Board of Education, and 
the resurrection of the interpretation 
test_____ :______________________________  21

5. The interpretation test in practice________  27
(a) Partial nullification of the test____  27
(b) The testing of some applicants but

not others_____________________ 28
(c) Divergent standards and proce­

dures in the use of the test____ 29
6. Racial discrimination in the administration

of the interpretation test. ______    31
(a) Administration of the test to

Negroes but not to whites_____  32
(b) Assistance given to whites but not

to Negroes____________________  34
(c) Discriminatory selection of consti­

tutional sections for interpreta­
tion------------------------------------------ 36

(d) Discriminatory grading of inter­
pretations_____________________  37

'755-226— 64----- 1 (I)



II

Statement—Continued
B. The evidence—Continued

6. Racial discrimination, etc.—Continued
(e) Administration of the test to 

Negroes discrim inatorily purged 
from the rolls while leaving on 
the rolls whites who never had Page 
taken the test________________ 40

7. The decline in Negro registration following
employment of the interpretation lost . . .  43

8. The adoption of the new “ citizenship”  test. 43
C. The decision below_____________________   45

Summary of Argument________________________________   47
Argument___________________________________________. ___ 50

I. The United States is authorized to maintain the 
present action and to join as defendants the 
State and the State Board of Registration, 
without also joining the individual registrars. _ 50

A. Joinder of the State Board of Registra­
tion was proper. . . . __________________  51

B. The individual registrars were not indis­
pensable parties______________________ 53

II. The Louisiana constitutional and statutory 
provisions conditioning registration as a voter 
on the applicant’s ability to “ understand and 
interpret”  any section of the State or Federal 
Constitutions contravenes the Fifteenth ,
Amendment and 42 U.S.C. 1971_____    54

A. Discriminatory potential of the Louisiana
constitutional interpretation test.___ _ 58

B. Discriminatory practice under the Louisi­
ana constitutional interpretation test. 72 

. III. The court below properly enjoined application of 
the new “ citizenship test”  in the parishes 
where the interpretation test was shown to 
have been used until there is a general re­
registration of all voters in the parish________  76

Conclusion__________ »_________. . . . . . . . ___. _______ ______  80
Appendix A _______________________________________ . ____  81
Appendix B _____________________________________________  87
Appendix C __ ____ . _________________ . . . . . _________ . . . .  91

, l 4



Pag*

Appendix D ____________________ _________ _______________  93

CITATIONS
Cases:

Anderson v. Martin, 375 U.S. 399-----------------------------  70, 71
Aptheker v. Secretary of State, 378 U.S. 500__________  57
Atchison, Topeka and Santa Fe Railroad Co. v. Mat­

thews, 174 U.S. 96_________________________________ 59
Austin v. Tennessee, 179 U.S. 343------------------------------ 59
Bailey v. Alabama, 219 U.S. 219____________________  58
Bates v. Little Rock, 361 U.S. 516____________________ 69, 70
Bevins v. Prindable, 39 F. Supp. 708, affirmed per

curiam, 314 U.S. 573______________________________ 52
Board of Supervisors v. Wilson, 340 U.S. 909________  70
Brown v. Board of Education, 347 U.S. 483__________  21
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495________  57
Bush v. Orleans Parish School Board, 187 F. Supp. 42;

188 F. Supp. 916, affirmed, 365 U.S. 569; 190 F.
Supp. 861, affirmed, 366 U.S. 212; 191 F. Supp. 871, 
affirmed, 367 U.S. 907; 194 F. Supp. 182, affirmed,
367 U.S. 907, 368 U.S. 11_________ - _____________ _ 52, 70

Ceballos v. Shaughnessy, 352 U.S. 599________________ 54
Cline v. Frink Dairy Co., 274 U.S. 445_______________  65
Davis v. Schnell, 81 F. Supp. 872, affirmed, 336 U.S.

9 3 3 - - .__________  59
Eubanks V. Louisiana, 356 U.S. 584______________  67, 70, 71
Evans v. Buchanan, 256 F. 2d 688, certiorari denied,

358 U.S. 8 3 6 --___________________________________  53
Evans v. Members of the State Board of Education, 149

F. Supp. 376_______________    53
Garner v. Louisiana, 368 U.S. 157___________________  70, 71
Gelling v. Texas, 343 U.S. 960_______________________ 57
Gibson v. Florida, 372 U.S. 539______________________ 70
Gray v. Sanders, 372 U.S. 368___________________  60, 61, 69
Griffin v. Illinois, 351 U.S. 12______   58
Guinn v. United States, 238 U.S. 347________________  16, 77
Hannah y. Larche, 363 U.S. 420______ ______________  71
Harmon v. Tyler, 273 U.S. 668_____- _______________  70
Hecht Co. v. Bowles, 321 U.S. 321___________________  77
James v. Almond, 170 F. Supp. 331, appeal dismissed,

359 U.S. 1006____________________________________  53
Kotch v. Pilot Commissioners, 330 U.S. 552__________ 58, 59

Ill



IV

Cases—Continued Page
Kunz v. New York, 340 U.S. 290____________________  57
Lane v. Wilson, 307 U.S. 268________________________  77
Lassiter v. Northampton County Board of Elections,

360 U.S. 45____- _______________________ ________ 60, 69
Lombard v . Louisiana, 373 U.S. 267_________________  71
Louisiana v. N AACP, 366 U.S. 293__ ______________ 70, 71
Meredith v. Fair, 298 F. 2d 696; 305 F. 2d 343_______  67
Morrison v. Davis, 252 F. 2d 102 certiorari denied,

356 U.S. 968____________________________________ _ 70
N AA C P  v. Alabama, 357 U.S. 449_____________________ 70
N AA CP  v. Button, 371 U.S. 415____________________ 69, 70
Near v. Minnesota, 283 U.S. 697_____________________ 57
City of New Orleans v. Barthe, 376 U.S. 189_________  70
New Orleans City Park Improvement Association v.

Detiege, 358 U.S. 54---------------------------------------------------  70
Orleans Parish School Board v. Bush, 268 F. 2d 78—  52
Pierre v. Louisiana, 306 U.S. 354------------------------------  70
Poret v. Sigler, 361 U-S. 375-----------------------------------—  70
Porter v. Warner Co., 328 U.S. 395— --------------------—  77
Shaughnessy v. Pedreiro, 349 U.S. 4 8 ------------------------ 54
SKelton v. Tucker, 364 U.S. 479---------------------------------- 70
Shields v. Barrow, 17 How. 130----------------------------------  53
Smith v. Allwright, 321 U.S. 649---------------------------- —  21
Snowden v. Hughes, 321 U.S. 1— ------------------------------  58
St. Helena Parish School Board v. Hale, 368 U.S. 515__ 70
State Athletic Commission v. Dorsey, 359 U.S. 533------  70
Sterling v. Constantin, 287 U.S. 378---------------------------  2
Superior Films, Inc. v. Department of Education, 346

U.S. 587__________________________________________  57
Taylor v. Louisiana, 370 U.S. 154----------------------------- 70
Trudeau v. Barnes, 65 F. 2d 563, certiorari denied,

290 U.S. 659______________________    73
United States v. Association of Citizens Councils of

Louisiana, 196 F. Supp. 908----------- -------------24, 25, 38, 74
United States v. Atkins, 323 F. 2d 733----------*------------ 77
United States v. Barnett, 376 U.S. 681------------------------  52
United States v. Board of Registration of Louisiana,

C.A. 2866 (E.D. L a .) -~ * -~ ------------. . . ------------------ 19
United States v. Clement, 231 F. Supp. 913-, 10, 32, 45, 74, 78
United States v . Cohen Grocery Co., 255 U.S. 81---------- 65
United States v .  Crawford, 229 F. 2d 898_--------- „ ------ 40, 41
United States v. Duke, 332 F. 2d 759-------------------------  77, 78



V

Cases—Continued
United States v. Fox, 211 F. Supp. 25, affirmed, 334 Page

F. 2d 4 4 9 ---_______________________  28, 34, 35, 36, 74, 78
United States v. Manning, 215 F. Supp. 272--------------- 78
United States v. McElveen, 180 F. Supp. 10-----------—  23
United States v. Thomas, 362 U.S. 58------------------- 23, 25, 71
United States v. TUard, 222 F. Supp. 617-------------------- 67
United States v. Wilder, 222 F. Supp. 749------  24, 25, 33, 74
Watkins v. United States, 354 U.S. 178— ------------------  58
Wesherry v. Sanders, 376 U.S. 1---------------------------------  61
Yick Wo v. Hopkins, 118 U.S. 356-------    58

Federal constitutional provisions, statutes and rules:
United States Constitution: ,

Article I, §2-------------------------------------------------------  61
Article I, §8, cl. 11______________________________  63
Article I, §9, cl. 4__________________ _____________  63
Article I, §9, cl. 3_______________________________ 63
Article I, §10, cl. 1_____1 -----------------------------------  63
Article II, §1, cl. 3______________________________ 63
Article III, §2, els. 1 and 2---------------------------------  63
Article IV, §2, cl. 1____________________    63
Article VI, cl. 2__________________- _____________  2, 81
Fourth Amendment____________________________  63
Fifth Amendment________    63
Tenth Amendment_____________________________  36
Twelfth Amendment____________________________  63
Fourteenth Amendment________________________ 61, 63
Fifteenth Am endm ent_____________7, 11, 14, 48, 61, 81
Seventeenth Amendment_______________________  61
Nineteenth Amendment________________________  61

United States Code:
28 U.S.C. 2101(b)______________________________  2
28 U.S.C. 2281______________________________   8
42 U.S.C. 1971______________________  2, 7, 31, 33, 38, 54
42 U.S.C. 1971(a)___________________________ 6,8,48,81
42 U.S.C. 1971(c)-— __________________________  7,82
42 U.S.C. 1971(d) —  ____________________________ 82
42 U.S.C. 19 7 1 (e )-____- _________________________77,82

Revised Rules of the U.S. Supreme Court, Rule 10(2) 6, 7
Federal Rules of Civil Procedure:

Rule 25(d) (1)_________________     8
Rule 6 5 (d )-- -_____     53



VI

Louisiana constitutional provisions, statutes and resolu-
tions: . . p*ga

Louisiana Constitution of 1812, Article II, §8________  l l
Louisiana Constitution of 1845, Article 10__________ n
Louisiana Constitution of 1852, Article 10__________  l l
Louisiana Constitution of 1864, Article 14__________ n
Louisiana Constitution of 1864, Article 15__________ n
Louisiana Constitution of 1868, Article 98__________ l l
Louisiana Constitution of 1879, Article 188_________  l l
Louisiana Constitution of 1898, Article 197_________  14
Louisiana Constitution of 1898, Article 197, §5_______  16
Louisiana Constitution of 1913, Article 197_________  16

* Louisiana Constitution of 1921:
Article V, § 8_ _ _ _ ______________________________________________________________________ 54
Article VIII, § 1.  ----------------------------------------  44, 73, 87
Article VIII, § 1(a)_____________________________  19
Article VIII, § 1(b )_____________________________ 55
Article VIII, § 1(c)--------  2, 3, 4, 18, 19, 55, 61, 62, 67, 82
Article VIII, § 1(d )_____________________________ 2,

3, 4, 7, 8, 18, 19, 54, 55, 62, 67, 69, 90
Article VIII, § 1(f)----------------------------------------- 4, 20, 90
Article VIII, § 6________________   19
Article VIII, § 18---------------------------------  4, 44, 51, 52, 72
Article X _______________________________________  63
Article X IV __________________  _ _ _ _ _____ gg
Article X V I________ __________”  63
Article X V III_____________________._____ 63
Article X IX , § 18______________________________  10, 64

Acts of Louisiana:
Act 199 of 1898______   16
Act 24 of 1912_______________________________________16
Act 613 of 1960___________________________  _ 3 20
Act 62 of 1962-------------------------------------------  6, 10, 44, 51
Act 539 of 1962.________________________________44i 51

Louisiana Revised Statutes:
Title 18, section 31(2)___   5
Title 18, section 35__________________________3; 7 g 55
Title 18, section 36---------------------------------- - 3, 5, 7, 8,’ 55
Title 18, sections 132-136_______________________ 23
Title 18, section 191 A _______________________ 5; 44 51
Title 18, section 231____________________________  24
Title 18, section 245____________  23
Title 18, sections 581-582_______________________ 55

Louisiana Legislature, House Concurrent Resolution 
No. 27 (1954)_____________________________________  21



vri

Other State constitutional provisions: v&s*
Alabama Constitution, Boswell Amendment--------------  59
Mississippi Constitution 1890, Article 244.--------------  13
South Carolina Constitution 1895, Art. II, § 4 (c )------ 13, 59
South Carolina Constitution 1895, Art. II, § 4 (d )------ 59

Miscellaneous:
Aggregate Amount of Persons Within the United States in

1810 (Washington, D.C. 1811), p. 82---------------------  11
Eaton, The Suffrage Clause in the New Constitution of

Louisiana, 13 Harv. L. Rev. 279-----------------------  12,13,15
The Federalist, No. 57_______________________________  61
The 50 States Report (1961), pp. 216, 220------------------- 74
4 Fortier, History of Louisiana 235 --------- ----------------  14
Hearings Before the United States Commission on Civil

Rights, New Orleans, La., 1960-1961 ____________  74
Kernan, The Constitutional Convention of 1898 and its 

Work, Proceedings of the Louisiana Bar Association
for 1899, pp. 54, 59-60____________________________  15, 66

Key, Southern Politics (1949) 577---- -------------------------  65
Louisiana Legislative Council, An Anaylsis of the Elec­

tion Laws o1 Louisiana (Baton Rouge, 1960), Yol.
I, p. 4____________________________________________  20

Louisiana Senate Journal, 1898, p. 3 3 . . ._____________ 15, 65
Marr, A  Historical Review of the Constitutions of Louisi­

ana, 1912-13___________________________   15
Monnet, The Latest Phase of Negro Disfranchisement,

26 Harv. L. Rev. 42______________________ ------------ 15
Official Journal of the Proceedings of the Constitutional

Convention of 1898, p. 9- _______________________- 12, 14
Op. La. Atty. Gen., September 28, 1961_____________  20
Powell, A  History of Louisiana Constitutions, Volume 1,

Part 1, Projet of a Constitution for the State of Louisi­
ana (1954), p. 485__   52

Report of the United States Commission on Civil Rights
(1961), Vol. 1, Chapter 3__________________________  74

State of Louisiana, Report of the Secretary of State
(Jan. 1, 1935)_____________________________________ 91

State of Louisiana, Report of the Secretary to Governor
Long from January 1, 1949 to December 31, 1950------ 91, 93

Swift, Gulliver1 s Travels (Universal Library ed.), p. 132. 62
U.S. Bureau of Census, Abstract of the Fourteenth 

Census of the United States: 1920, Table 132, p. 433. _ 18



YHX

Miscellaneous— Continued
U.S. Bureau of the Census, Census oj Population: 1950, Page

Vol. II, Part 18, Table 44, pp. 67-77______________  92
U.S. Bureau of the Census, Census oj Population: 1960,

Vol. 1, Part 20, Tables 15, 16, 27, pp. 27, 30, 31,
74-90_______________________________________________91,93

U.S. Bureau of the Census, Estimates oj Illiteracy by
States (1963), p. 2________________________________  20

U.S. Bureau of the Census, Fifteenth Census: 1930,
Vol. I l l ,  Part I, Louisiana Table 4, p. 968________  91

U.S. Bureau of the Census, Sixteenth Census oj the 
United States: 1940, Population Vol, II, Part I,
Table 26, p. 73____________________________________  91

U.S. Bureau of the Census, Thirteenth Census: 1910,
Vol. II, Louisiana Tables 6, I, pp. 773, 779________  91

U.S. Census Office, Compendium ojthe Eleventh Census:
1890, Vol. I, Table 25, p. 764______________________ 91

U.S. Census Office, Tweljth Census: 1900, Vol. I, Table 
XC V , p. cciv, Table X CVI, p. ccvi, Table 67, p. 909,
Table 68, p. 910, Table 69, p. 912, Table 92, p. 983 - 14

U.S. Census Office, Tweljth Census: 1900, Vol. II, Ta­
bles X L, 24, pp. lxxvi, 171________________________  91

Woodward, Origins oj the New South, p. 332_________  13



J t t  t o  jk p m ttt dfmtrt of t o  I t t i M  plates
O cto ber  T e r m , 1964

m .  67

S t a t e  o f  L o u is ia n a , e t  a l ., a p p e l l a n t s

v.
U n it e d  S t a t e s  o f  A m e r ic a

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

BRIEF FOR THE UNITED STATES

O P IN IO N  B E L O W

The opinion of the district court (R. 94-145) is 
reported at 225 F. Supp. 353. Subsequent findings 
of fact and conclusions o f law (R. 84—89) and the 
decree (R. 81-84) are not reported.

J U R IS D IC T IO N

The judgment of the three-judge district court (R. 
81-84) was entered on January 28, 1964. A  timely 
notice of appeal (R. 92-93) was filed in the court 
below on March 5, 1964.* 1 The jurisdictional state­

1A  premature notice of appeal filed December 27, 1963 (R. 
79)—before entry of the decree—was dismissed (R. 90, 91) and 
an identical new notice substituted. While, pursuant to stipu-

(1 )



2

ment was filed here on May 5, 1964, and this Court 
noted probable jurisdiction on June 22, 1964. 377 
U.S. 987. The jurisdiction of the Court rests on 28 
U.S.C. 1253. Sterling v. Constantin, 287 U.S. 378.

C O N S T IT U T IO N A L  A N D  S T A T U T O R Y  P R O V IS IO N S  IN V O L V E D

A. PROVISIONS OF GENERAL RELEVANCE

Article V I, clause 2, of the Constitution of the 
United States, Section 1 of the Fifteenth Amendment 
and the relevant portions of Section 1971 of Title 42 
o f the United States Code are reproduced in Ap­
pendix A, infra, pp. 81-86.

B. PROVISIONS RELEVANT TO THE “ UNDERSTANDING AND 
INTERPRETATION’ ’ TEST (QUESTION 2)

1. The pertinent portion o f Section 1(d) of Arti­
cle V III  of the Louisiana Constitution, as amended 
in 1960, is as follows:

He [the voter] * * * shall be able to under­
stand and give a reasonable interpretation of 
any section o f either Constitution when read to 
him by the Registrar * * * * 2

lation (e.g., R. 32, 36, 38), only written evidence was submitted 
(depositions, affidavits, transcribed testimony from other pro­
ceedings and other written exhibits), the case was tried on the 
merits (R. 84) and the decree (including a declaratory judg­
ment and a permanent injunction (R. 81)). is properly char­
acterized a “ final order” (R. 92). Accordingly, the appeal 
filed within 60 days of the judgment was timely. 28 U.S.C. 
2101(b)'.

2 Presumably by inadvertence, the Jurisdictional Statement 
(p. 3) and the Brief (pp. 2-3) filed by the State o f Louisiana 
cites and quotes the provision o f former Section 1 (c ), rather 
than the appropriate language of Section 1 (d )—the only con­



3

2. The pertinent portion of Section 35 of Title 18 
of the Louisiana Revised Statutes is as follows:

Applicants for registration shall also be able 
to read any clause in the Constitution of Lou­
isiana or of the United States and give a rea­
sonable interpretation thereof.3

3. The pertinent portion of Section 36 of Title 18 
of the Louisiana Revised Statutes is as follows:

I f  the registrant cannot read or write, he may 
register if  he * * * understands and can give 
a reasonable interpretation of any section of 
either constitution [of the United States or 
Louisiana] when read to him by the registrar 
or his deputy.4

stitutional interpretation test in effect when this suit was filed 
(December 28,1961, see E. 1, 6) or since.

As originally adopted in 1921, Article V III  contained two 
separate constitutional interpretation tests. Section 1(c) pro­
vided that persons able to read and write “ shall also be able to 
read any clause in this Constitution or the Constitution o f the 
United States, and give a reasonable interpretation thereof.” 
Section 1(d) provided that illiterates might register i f  “ able 
to understand and give a reasonable interpretation o f any sec­
tion o f either Constitution when read to him by the regis- 
trar * * *.” In 1960, the interpretation test in Section 1(c) 
was deleted entirely, and the opening phrase of Section 1(d) ,  
which had restricted its application to illiterates, was dropped. 
See Act 613 of 1960, adopted November 8, 1960. The result is 
that the test originally designed for illiterates is now the test 
applicable to every applicant. For clarification, we have ap­
pended a comparative text showing the changes effected in 1960. 
See Appendix B, infra, pp. 87-90.

3 La. E.S. 18:35 repeats almost verbatim the interpretation 
test as it originally appeared in Article V III, Section 1(c) of 
the Constitution. Although that language has been deleted 
from the Constitution, it remains in the statute.

4 La. E.S. 18:36 substantially repeats the test for illiterates 
which appeared in Article V III, Section 1(d) o f the Consti­
tution before 1960, and which is now applicable to all regis­
trants. While Section 36 has not been changed, presumably



4

C. PROVISION'S RE LEVANT TO THE 1 * * * ‘  CITIZENSHIP ’ ’ TEST
(QUESTION 3 )

1. The pertinent portion of Section 1(c) of Article 
V III  of the Louisiana Constitution is as follows:

He [the voter] * * * shall understand the 
duties and obligations of citizenship under a 
republican form of government,

2. The pertinent portion of Section 1(d) of Article 
V III  of the Louisiana Constitution is as follows:

He [the voter] * * * must understand the 
duties and obligations of citizenship under a 
republican form of government.5

3. The pertinent portion of Section 18 of Article 
V III  of the Louisiana Constitution, as amended in 
1962, is as follows:

The Board [of Registration] shall from time to 
time adopt such rules and regulations as it finds 
necessary for proper functioning of registra­
tion procedure in the State and shall prepare, 
adopt and issue a uniform, objective written 
test or examination for citizenship to determine 
that applicants for registration understand the 
duties and obligations of citizenship under a 
republican form of government. The Board of

it should be read as though the introductory clause had been
deleted, to conform with the Constitution (Article V III , § 1 ( c ) )
which now bars illiterates from the franchise (though illiterates 
properly registered on or before November 8, 1960, may con­
tinue to vote. See La. Const., Art. V III, § 1 ( f ) ) .

5 This and the previous provision are both part o f  the original 
1921 text: the quoted portion o f subsection (c) was then appli­
cable to literate applicants, while the substantially identical 
portion o f subsection (d) applied only to illiterates. Both pro­
visions survived the 1960 amendment (see note 2, supra) and 
both now apply to all prospective voters. See Appendix B, 
infra, pp. 87-90.



5

Registration shall direct and instruct the reg­
istrars to administer this test to all applicants 
for registration and the results shall be main­
tained in the registrar’s office as public records 
so that all persons shall have access to them and 
the right to appeal therefrom under the appli­
cable laws relating thereto as provided else­
where in this Constitution.

4. The pertinent portion of Section 31(2) of Title 
18 of the Louisiana Revised Statutes is as follows:

He [the applicant for registration as a voter]
* * * shall understand the duties and obliga­
tions of citizenship under a republican form of 
government.

5. The pertinent portion of Section 36 of Title 18 
of the Louisiana Revised Statutes is as follows:

He [the applicant for registration as a voter]
* * * shall understand the duties and obliga­
tions of citizenship under a republican form of 
government.6 * 8

6. The pertinent portion of Section 191A of Title 
18 of the Louisiana Revised 'Statutes, as amended in 
1962, is as follows:

[T]he board of registration * * * shall pre­
scribe and direct the registrars of voters to 
propound an objective test of citizenship under 
a republican form of government, which said 
objective test shall be provided for, prepared 
and furnished to the registrars by the board of 
registration, and the character and forms of

6 This redundant provision was originally, and is still in
terms, applicable to illiterates alone; but, in light o f the change
in the constitutional provision to which it is tied, it must pre­
sumably be read as generally applicable.



6

record, affidavits and other documents necessary 
or proper, in its opinion, to carry into effect the 
provisions of this Chapter, and shall file them 
in the office of the secretary of state.7

QUESTIONS P R E S E N T E D

1. Whether the United States may initiate injunc­
tive and declaratory proceedings challenging, as con- 
trovening the Fifteenth Amendment and 42 U.S.C. 
1971(a), State constitutional and statutory provisions 
establishing voting qualifications and may institute 
such an action against the State and the members and 
director of the State Board of Registration when 
there are local voting registrars available as de­
fendants.8

7 This provision, enacted in June, 1962 (see Act 62 of 1962), 
became effective and was implemented by the State Board of 
Registration in August (see R. 221-251), before the adoption, 
in November, o f the constitutional amendment quoted as Item 3 
above. Presumably, the new “ citizenship” test was thought 
authorized by the existing constitutional provisions quoted as 
Items 1 and 2 above. See R. 228.

8 Since none of the issues embodied in this first question is 
listed as a “ question presented” or is “ fairly comprised” within 
the only question mentioned (question 2, infra) in the notice of 
appeal (R. 92-93; see, also, R. 79; J.S. 1), they would normally 
be foreclosed here. See Rule 10(2) o f the Revised Rules of 
this Court. Indeed, it is doubtful whether all o f these matters 
were raised in the district court (see Motion to Dismiss, R. 21- 
22). And, even now, it does not clearly appear that appel­
lants challenge the authority o f the Attorney General to insti­
tute the present suit on behalf o f the United States against 
other defendants (but see App. Br. 11-12). Nevertheless, be­
cause some of the issues mentioned are expressly considered in 
the opinion below' (see R. 98-99), because those not expressly 
argued here are prominently involved in the companion Mis­
sissippi case (No. 73, this Term), on which the present appel­
lants so much rely, and because the questions are in some sense



7

2. Whether the provisions of the Louisiana Con­
stitution (Art. V III, § 1 (d )) and implementing legis­
lation. (La. R.S. 18:35, 36) requiring applicants for 
registration as voters to be able to “ understand and 
give a reasonable interpretation”  of any section of the 
State or federal Constitution are unconsitutional be­
cause they violate the Fifteenth Amendment and 42 
U.S.C. 1971.

3. Whether, in the circumstances, the district court 
properly enjoined the use of a new “ citizenship”  test 
in the 21 parishes where the constitutional interpreta­
tion test was shown to have been used, until such time 
as there is a re-registration of all voters in those 
parishes.* 9

S T A T E M E N T

A. THE PLEADINGS AND PROCEDURE

These proceedings were begun on December 28, 
1961, in the United States District Court for the East­
ern District of Louisiana. On that day, the Attorney 
General, acting pursuant to 42 U.S.C. 1971(c), filed a 
complaint in the name of the United States against

jurisdictional— we advert to them. In order to avoid unneces­
sary repetition, however, our discussion here is very summary, 
with appropriate references to the government’s brief in United 
States v. State o f Mississippi, No. 73, where the procedural 
issues are treated more fully.

9 Again, appellants have failed to specify this question in 
their notice o f appeal (R. 92-93; see, also, R. 79-80; J.S. 1). 
Yet, it is prominently argued in their brief here (pp. 24-33). 
We discuss it fully because it may be viewed as “ a subsidiary 
question fairly comprised” within the question set forth in the 
notice—the constitutional validity of the “ understanding and 
interpretation”  test. See Rule 10(2) of the Rules o f this 
Court.



8

the State of Louisiana, the members of the Louisiana 
Board of Registration, and the Director and ex 
officio secretary of the Board (R. I ) .10 The gravamen 
of the complaint was that the Louisiana constitutional 
and statutory provisions which condition registration 
for voting upon the ability of the applicant to under­
stand and give a reasonable interpretation of any sec­
tion of the Constitution of the United States or the 
Constitution of Louisiana (La. Const., Article V III, 
Section 1(d), as amended, and La. R.S. 18:35; 36) 
conflict with 42 U.S.C. 1971(a) and contravene the 
Fourteenth and Fifteenth Amendments to the United 
States Constitution (R. 7). A  judgment was sought 
declaring the challenged provisions unconstitutional 
and enjoining the defendants from enforcing them 
and from engaging in any other course of action 
which would deprive citizens of the right to register 
and vote on account of race or color, or which would 
delay or discourage their exercise of that right (R. 8).

On January 9, 1962, upon the application of the 
United States, a statutory court of three judgus was 
convened in accordance with 28 U.S.C. 2281.11 On 
February 27, the defendants moved to dismiss the

“ After the decree was entered, two members o f the State 
Board of Registration (the Governor and the Speaker o f the 
Louisiana House o f Representatives) were replaced. The new 
Governor (John J. McKeithen) and the new speaker (Vail 
M. Deloney) should be substituted for Jimmie H. Davis and 
J. Thomas Jewell. See Rule 25(d) (1), F.R. Civ. P.

11 The order convening the three-judge court (which was not 
designated for printing) is found among an unpaginated group 
o f papers between pages 14 and 15 o f the original record. The 
court consisted o f Circuit Judge Wisdom and District Judges 
Christenberry and West.



9

complaint upon the grounds that there was “ no justi­
ciable controversy,” that the United States had failed 
to join indispensable parties and that venue was im­
proper (R. 21-22). On March 15, the United States 
filed an amended complaint which added the allegation 
that Louisiana registrars of voters “ have used, are 
using, and will continue to use the interpretation test 
to deprive otherwise qualified Negro citizens of the 
right to register to vote without distinction of race or 
color,”  and that “  [t]he existence of the interpretation 
test as a voter qualification in Louisiana, the threats 
of its enforcement and its enforcement have deterred, 
are deterring and will continue to deter otherwise 
qualified Negroes in Louisiana from applying for reg­
istration to vote”  (R. 28). The district court denied 
the motion to dismiss on June 7 (R. 31). Thereafter, 
on July 3, the defendants filed a joint answer, gener­
ally denying each of the allegations in the complaint, 
but conceding that the constitutional and statutory 
provisions prescribing the oral interpretation test im­
pose no definite and objective standards upon regis­
trars of voters in the administration of the test.12 By 
agreement, all evidence was submitted in written form. 
Numerous depositions, affidavits, transcripts of testi­
mony from other proceedings, official voting records 
and other exhibits were introduced by the United 
States. Appellants submitted no evidence and, though 
given time to do so (see R. 73-75), filed no trial brief.

12 The answer, which was not designated for printing, appears 
among an unpaginated group o f papers between pages 33 and 
34 o f the original record.

755- 226— 64------------2



10

At one point during the proceedings (see R. 78), 
appellants suggested that the case was moot because 
the challenged “ understanding and interpretation” 
test had been discontinued and a new multiple-choice 
“ citizenship”  test substituted, pursuant to a recent 
amendment to the State Constitution (La. Const., Art. 
Yin, § 18, as amended by Act 539 of 1962, adopted 
November 6, 1962, {supra, p. 4), a new statute (La. 
R.S. 18:191A, as amended by Act 62 of 1962, supra, 
p. 5) and a Resolution of the State Board of Regis­
tration (R. 227-231, 231-234), accompanied by test 
forms (R. 235-251) and Instructions to Registrars 
(R. 225-226). In that way, the new “ citizenship”  test 
was introduced as an issue in the case (see R. 69, 71, 
74, 78). In order to rebut the allegation that the con­
stitutional interpretation test had been wholly aban­
doned in determining voter qualifications, the govern­
ment sought and obtained permission to re-open the 
case to submit further evidence (R. 75-79). Subse­
quently, a deposition was introduced showing that the 
old test had been continued in use in Webster Parish 
(R. 390-391), and such a finding was entered in a later 
proceeding. See United States v. Clement, 231 P. 
Supp. 913 (W.D. La.).

A  majority of the court filed its opinion on Novem­
ber 27, 1963 (R. 97). District Judge West filed his 
dissenting opinion on December 31 (R. 140). For­
mal findings of fact, conclusions of law, and a decree 
granting the relief requested were entered on Janu­
ary 28, 1964 (R. 81-89).



11

B. THE EVIDENCE

1 . t h e  a n t e c e d e n t s  o f  t h e  i n t e r p r e t a t i o n  t e s t

From the Code Noir of 1724 until 1864, the organic 
law of Louisiana extended the franchise only to free 
white males,13 notwithstanding the fact that there 
were thousands of free Negro men in the State.11 
For three decades thereafter, however, the policy 
changed. While the constitution adopted in 1864 
itself conferred the right to vote on white men alone, 
it expressly empowered the legislature “ to pass laws 
extending suffrage to such other persons, citizens of 
the United States, as by military service, by taxation 
to support the government, or by intellectual fitness, 
may be deemed entitled thereto.” 15 In 1868 (three 
years before the Fifteenth Amendment was ratified), 
Louisiana adopted a new constitution which entirely 
eliminated race as a qualification for voting.16 And 
the Constitution of 1879 explicitly prohibited the 
legislature from abridging the franchise “ on account 
of race, color or previous condition.” 17 Thus, in 
1888, Negroes, accounting for about half the popu­
lation of Louisiana, also constituted approximately 
fifty per cent of the electorate. In that year there

13 For the period after Louisiana achieved Statehood in 1812, 
see: La. Const. 1812, Art. II , § 8; La. Const. 1845, Art. 10; La. 
Const. 1852, Art. 10.

14 In 1810, New Orleans had 8,001 white persons, 5,727 free 
persons o f  color and 10,824 slaves. Aggregate Amount o f Per­
sons Within the United States in 1810 (Wash. D.C. 1811)
p. 82.

35 La. Const. 1864, Art. 14, 15.
16 La. Const. 1868, Art. 98.
17 La. Const. 1879, Art. 188.



12

were 127,923 Negroes and 126,884 white persons on 
the registration rolls.18 As of January 1, 1897, the 
number of Negro voters was 130,344, some 44% of 
the electorate.19

In 1898, Louisiana held a constitutional conven­
tion. According to the official journal, the President 
of the Convention (Mr. Kruttschnitt) assumed his 
chair with the remark that the convention “has been 
called together by the people of the State to eliminate 
from the electorate the mass of corrupt and illiterate 
voters who have during the last quarter of a cen­
tury degraded our politics.” 20 A  contemporaneous 
account in the Harvard Law Review relates that Mr. 
Kruttschnitt later told the convention delegates:

We all know, we, the white people of the State 
of Louisiana, that the problem which we desire 
to solve is to undo the greatest crime of the 
nineteenth century, the placing of the ballot in 
the hands of the negro race by the Fifteenth 
Amendment to the Constitution of the United 
States. * * * 21

Also noted is the argument of Mr. Kruttschnitt 
that it was necessary to prevent ignorant Negroes 
from voting, yet to grant the franchise to ignorant 
white men who had fought for the South. 13 Harv. 
L. Rev. at 288.

18 PL Ex. 1 (part of the original record, not designated for 
printing). For a partial summary o f population and voter 
registration statistics, see the tabular recapitulation in Appendix
C., infra, p. 91.

19 Ibid.
20 Official Journal of the Proceedings o f the Constitutional 

Convention o f 1898, p. 9.
21 Eaton, The Suffrage Clause in the New Constitution o f  

Louisiana, 13 Harv. L. Rev. 279, 288.



13

Many of the delegates to the 1898 convention sought 
to accomplish this objective by a so-called “ under­
standing clause”—adopted by Mississippi in 1890 22 and 
by South Carolina in 1895.23 This provision would 
have permitted an applicant for registration as a voter 
who was unable to read to be registered if, in the 
opinion o f the registrar or his deputy, he could under­
stand the Constitution of the State. 13 Harv. L. Rev. 
at 291. The delegates who favored such a clause in­
cluded Lieutenant Governor Snyder, who, at a con­
ference of 35 or 40 delegates, stated that “  [a]n 
£understanding clause’ like that in the Constitution of 
Mississippi is elastic and can be used effectively to 
prevent Negroes from registering. ”  Id. at 281. Mr. 
Strongfellow thought that with an understanding 
clause “ they could make one grand sweep, include 
all the white people, and then put the bars up as they 
wanted to, and thus settle the suffrage question for all 
time to come.”  Id. at 291. Other delegates opposed 
the proposal. A  delegate from Ouachita Parish was 
quoted by the New Orleans Times-Demoerat as stat­
ing: “ To adopt the understanding clause would be ‘ to 
send word’ to the registrars to do what you will not 
do yourself”  (R. 114). A  noted historian observes 
that, after considerable debate, the delegates were 
“ persuaded that the understanding clause was based 
on fraud,”  and rejected it. Woodward, Origins of 
the New South, p. 332. Instead, the convention

22 Miss. Const., 1890, Art. 244; see Brief for the United States 
in United States v. State o f  Mississippi, No. 73, this Term, 
p. 13.

23 S.C. Const. 1895, Art. II , Sec. 4(c) .



u

adopted alternative requirements of literacy or prop­
erty to bar the poor and illiterate Negro, and a 
“ grandfather clause”  to admit to the franchise the 
whites who were unable to satisfy the other qualifica­
tions.24

The intent of these provisions is fully disclosed. 
Writing in 1904, a Louisiana historian explained the 
purpose o f the suffrage provisions adopted in 1898:

The purpose of this section, known as the 
‘ Grandfather Clause,’ was to allow many hon­
orable and intelligent but illiterate white men 
to retain the right of suffrage, and the purpose 
of the educational or property qualification was 
to disfranchise the ignorant Negroes who had 
been a menace to the civilization of the State 
since the adoption of the Fifteenth Amend­
ment to the Constitution of the United States.25'

At the close of the convention, President Kruttschnitt 
complained that, because of the Fifteenth Amend­
ment, the delegates had “not been free.” 26 He said:

* * * we have not drafted the exact Constitu­
tion that we should have like to have drafted; 
otherwise, we should have inscribed in it, if I  
know the popular sentiment of this State, uni­
versal white manhood suffrage, and the exclu­
sion from the suffrage of every man with a

24 La. Const. 1898, Art. 197. A t the time, according to the 
United States census, approximately 61.3 percent o f adult 
Louisiana Negroes were illiterate, while illiterates represented 
some 18 percent of the -white adult population. See U.S. Census 
Office, Twelfth Census: 1900, Vol. I, Table X C V , p. eciv, Table 
X C Y I, p. ccvi, Table 67, p. 909, Table 68, p. 910, Table 69, 
p. 912, Table 92, p. 983.

25 4 Fordier, History o f Louisiana 235.
26 R. 204; Official Journal of the Proceedings of the Con­

stitutional Convention o f 1898, p. 380.



15

trace of African blood in his veins. * * * What 
care I  whether the test we have * * * be more 
or less ridiculous or not1? Doesn’t it meet the 
case? Doesn’t it let the white man vote, and 
doesn’t it stop the negro from voting, and isn’t 
that what we came here for ? 27 

In his message to the legislature, Governor Poster 
characterized the suffrage problem of the convention 
as, “ [i]n  the face of the fifteenth amendment, the 
elimination o f the negro as a controlling factor in our 
politics, without at the same time excluding from the 
electorate a large number of our worthy white citi­
zens * * *.” 28 
He declared:

The States of Mississippi and South Carolina 
had previously attempted to solve this problem, 
not by any certain and fixed provisions of law, 
but by leaving the admission of the applicant 
to the exercise of the electoral franchise largely 
to the arbitrary discretion of the officers admin­
istering the law. The Convention of our State 
solved the problem in a much more upright and 
manly fashion. The method adopted by it in­
volves the exercise of no such arbitrary discre­
tion on the part of the registration and election 
officers. * * * 29

27 Other equally explicit statements of convention delegates 
are related in Eaton, The Suffrage Ola,use in the New Con­
stitution o f Louisiana, 13 Harv. L. Rev. 279, 281, 289. See 
also, R. 113; Monnet, The Latest Phase o f Negro Disfranchise­
ment, 26 Harv. L. Rev. 42, 56-57; Keman, The Constitutional 
Convention of 1898 and its W ork , Proceedings o f the Louisiana 
Bar Association for 1899, pp. 54, 59-60; Marr, A Historical Re­
view o f the Constitutions o f Louisiana, 1912-13.

28 Louisiana Senate Journal, 1898, p. 33.
29 Ibid.



16

Promptly following the adoption of the 1898 con­
stitution, the Louisiana legislature directed a com­
plete new registration of all voters.30 Originally, reg­
istration under the “ grandfather clause”  was limited 
to those who qualified before September 1, 1898.31 
But the benefit of that provision was later extended to 
new “ grandsons.” 32 As a result of the re-registra­
tion, the number of Negroes on the registration rolls 
fell dramatically. Whereas in 1897 there had been 
130,344 Negro voters in the State, there were only 
5,320 in 1900. By 1910, only 730, or less than 0.5 per­
cent of the adult male Negroes, were registered.33 
The new constitution adopted in 1913 carried forward 
without material change the 1898 suffrage provisions, 
including the “ grandfather clause.”  34

2 . T H E  1 9 2 1  C O N S T IT U T IO N A L  C O N V E N T IO N

In 1915, this Court held unconstitutional an Okla­
homa “ grandfather clause.”  Guinn v. United States, 
238 U.S. 347. One of the purposes of the Louisiana 
constitutional convention called in 1921 was to revise 
the voter qualification laws in light of this develop­
ment.

According to contemporaneous accounts in New Or­
leans newspapers, the Convention of 1921 considered 
“ several substitutes”  for the grandfather clause. 
One was the Connecticut clause requiring voters to 
possess “ good moral character.”  A  second was a

30 La. Act 199 o f  1898, §§ 2, 34.
31 La. Const. 1898, Art. 197, § 5.
32 See La. Act 24 o f 1912, re-opening the “grandfather clause” 

between November, 1912, and September, 1913.
33 PI. Ex. 1. See Appendix C, infra, p. 91.
34 La. Const. 1913, Art. 197.



17

proposal of ex-G-overnor Pleasant, called the “ Chris­
topher Columbus” plan, under which only those whose 
ancestors had inhabited the continent of Europe prior 
to October 12, 1492, could register to vote without 
meeting onerous educational requirements. A  third 
was the proposal rejected in 1898—Mississippi’s “ un­
derstanding clause” (R. 209, 219).35 The Times-Pica- 
yune declared that the purpose of the “ Christopher 
Columbus”  plan was “ to shut out the negro”  (R. 
209), and viewed the “ understanding clause”  as 
touching the same “ phase”  of the suffrage question 
as the Christopher Columbus plan (R. 213). When 
the “ understanding clause” was first proposed to the 
convention on March 21, 1921, the Times-Picayune 
characterized it as “ [a]n ordinance designed to plug 
the hole shot through the suffrage provision of the 
present constitution when the Supreme Court of the 
United States declares the famous ‘grandfather’ 
clause invalid.” 36 * 38 The New Orleans States, another

35 The Convention o f 1921, unlike the Convention o f 1898,. 
did not keep a Journal. A  proposal was made that a short­
hand record be made o f the convention proceedings. But, ac­
cording to the March 3, 1921, Times-Picayune, during a Rules 
Committee debate on this proposal Ex-Governor Pleasant pro­
tested “ with a broad smile” that “ [tjhere might be one subject 
coming up for discussion which we would not care to have pre­
served' in shorthand” (R. 211). The Committee, the article
continued, understood that Mr. Pleasant referred to his “ Colum­
bus suffrage cause,”  whereupon “ everybody smiled” , and the 
shorthand proposal was defeated {ibid.). The deliberations of 
the Committee on Suffrage and Elections were conducted largely 
in executive session with “much secrecy” , and its members ob­
served a strict injunction against publicly discussing committee 
business (R. 221).

38 R. 215. The same newspaper reported that Judge Pugh, in 
introducing it, had labeled it “ judicially bombproof”  (R. 215)..



18

newspaper, reported that a large delegation of Negro 
citizens of Louisiana appeared before the Committee 
on Suffrage and Elections in opposition to the under­
standing clause, and “ pleaded for the ballot”  and 
against the “ total disfranchisement of 700,000 * * * 
human beings”  {viz., the Negro population of Loui­
siana in 1920) (R. 217). Nevertheless, the under­
standing clause was reported out of committee. In 
summarizing the committee’s action, a third journal, 
the States Times, declared that “ [t]he grandfather 
clause is eliminated and there is substituted an under­
standing and good character clause * * (R .
221).37

The new constitutional interpretation test was not 
a test of literacy. On the contrary, under the Consti­
tution of 1921—until it was amended in I96038—the 
new test was expressly applicable to illiterates, who 
then accounted for 25 percent of the adult popula­
tion.37 38 39 Indeed, it was probably designed especially

37 As originally adopted, the new Constitution required “ good 
character”  o f literate applicants (La. Const., Art V III, § 1 ( c ) ) 
and “ good character and reputation” o f illiterates {id., § l ( d ) ) .  
The 1960 amendment to the State Constitution greatly expanded 
the first of these provisions (now applicable to every applicant) 
by providing, inter alia, that none shall be deemed o f good 
character who has lived in “ common law marriage” or has 
mothered or fathered an illegitimate child. See the text o f the 
new § 1(c) printed in Appendix B, infra, pp. 87-90.

38 See note 2, supra. The full textual changes (most o f them 
irrelevant to the present case) are reflected in Appendix B. infra, 
pp. 87-90.

39 Among whites the illiteracy rate was about 12%; among 
Negroes, 44%. See U.S. Bureau of Census, Abstract o f the 
Fourteenth Census o f the United States: 1920, Table 132, p 
433.



19

for them. As originally enacted, Section 1(d) of 
Article V III  provided that an applicant for voter 
registration who satisfied other requirements common 
to all voters,40 but was “ not able to read or write,” 
“  shall be entitled to register if he * * * shall be able 
to understand and give a reasonable interpretation of 
any section of either [the] Constitution [of the United 
States or the Constitution of Louisiana] when read 
to him by the registrar.” While literate applicants 
were also nominally required to “  be able to read any 
clause in this Constitution or the Constitution of the 
United States and give a reasonable interpretation 
thereof,”  this final test, in their case, seems plainly 
secondary to the demonstration of literacy through 
completion of the written application form “without 
assistance or suggestion from any person or any memo­
randum whatever.” 41 La, Const. 1921, Art. V III,

40 Beyond the requirements of citizenship, age, residence and 
absence of disqualifying conviction or interdiction (see Art. 
V III, §§ 1(a),  (6), both literate and illiterate applicants were 
required to be “ o f good moral character” and able to “ under­
stand the duties and obligations of citizenship under a republi­
can form of government.”  It is difficult to attribute concrete 
meaning to the additional provisions applicable only to illiter­
ates that they “be attached to the principles of the Constitu­
tion o f the United States and o f the State of Louisiana” and 
“ be well disposed to the good order and happiness o f the State 
of Louisiana and o f the United States.” La. Const. 1921, Art. 
V III , § 1 (c) and ( d ) , reproduced in Appendix B, infra, pp. 87-90.

41 This form-completion requirement, now even stricter and 
applicable to all applicants, is challenged by the United States 
in a separate proceeding. United States v. Board o f Registra­
tion of Louisiana, C.A. 2866 (E.D. La,).



20

§ 1 (c).42 It is instructive that, in 1960 when the Con­
stitution was amended to end the registration of illit­
erates 43 (now some 6.3 percent of the population above 
14) ,44 the clause last quoted was deleted and the first 
(formerly applicable only to illiterates) was retained 
and made applicable to everyone.45

3 . T H E  E F F E C T  OF T H E  W H IT E  P R IM A R Y

From 1921 to 1948, the interpretation test appar­
ently lay dormant. It was unnecessary as a screen 
against negro voters because the Democratic State 
Central Committee, following a policy officially 
endorsed by the State (see R. 189-194),46 restricted all 
candidates and voters in Democratic Party primary

42 See Appendix B, infra, pp. 87-90. It is apparent that i f  the 
constitutional interpretation test applied with equal vigor to 
both classes, illiterate applicants would be favored, since they 
were excused from the literacy test involved in completing the 
application form unaided. Indeed, this seeming anomaly was 
noted in a study o f the voting laws completed for the legis­
lature in 1960, and doubtless affected the legislative proposal 
for revision o f the Constitution which was adopted by the 
electorate that November. See Louisiana Legislative Council, 
A n Analysis o f the Election Laws o f Louisiana (Baton Rouge, 
1960), vol. I, p. 4.

43 See note 4, supra. As noted there, illiterates legally regis­
tered before November 8, 1960, retained the right to re-register 
under the old law. See La. Const., Art. V III , § 1 ( f ) , as 
amended by Act 613 of 1960; Op. La. Atty. Gen., September 
28, 1961.

44 U.S. Bureau of the Census, Estimates o f Illiteracy by States 
(Feb. 12, 1963), p. 2. No figures are available by race. Louisi­
ana had the highest rate of illiteracy in the Nation in 1960, 
according to the cited study.

45 See note 2, supra, and Appendix B, infra, pp. 87-90.
46 See, also, PI. Ex. 9A through 9E.



21

elections for State office to white persons (R. 194) 
and thereby barred Negroes from the only balloting of 
significance in the Louisiana electoral process. In the 
face of the white primary, Negro registration never 
rose above one percent of the total number of regis­
tered voters between 1921 and 1946,47 although Negroes 
constituted more than one-third of the State’s adult 
population during those years.48

4 . T H E  D E M ISE  OF T H E  W H IT E  P R IM A R Y , T H E  D E CISION  I N  BRO W N

V . BOARD OF E D U C A T IO N , A N D  T H E  R ESU RRECTIO N  OF T H E  IN T E R ­

P R E T A T IO N  TEST

After this Court’s 1944 decision in Smith v. All- 
wright, 321 U.S. 649, and the demise of the white pri­
mary, the number of registered Negro voters surged 
upwards.49 On March 18, 1944, there were 1,029 
Negroes (less than one-fifth of one percent of the 
total number of registered voters) on the registration 
rolls.50 By March 17, 1956, registered Negroes num­
bered 161,410, or fifteen percent of the total.51 52

In 1954, this Court decided Brotvn v. Board of Edu­
cation, 347 U.S. 483. Immediately thereafter, the 
Louisiana legislature created a Joint Legislative Com­
mittee to study ways and means of maintaining ra­
cially segregated schools in Louisiana,62 which became

47 PI. Ex. 1. See Appendix C, infra, p. 91.
48 See Appendix C, infra, p. 91.
49 Other factors also were at play. For example, Negro vet­

erans returning from W orld W ar I I  were determined to vote 
(See B. 808).

60 PL Ex. 1. See, also, Appendix C, infra, p. 91.
51 Ibid.
52 Louisiana Legislature, House Concurrent Resolution No. 27 

<1954).



22

known as the “ Segregation Committee” (R. 800). 
Its chairman was William M. Rainaeh, State Senator 
from Claiborne Parish (R. 630), where there are more 
Negroes than white persons53 (albeit 5,216 white per­
sons but only 34 Negroes were registered to vote in 
the parish as of December 31, 196254) . Counsel for 
the committee was William M. Shaw, also from Clai­
borne Parish (R. 643-644). At about the same time, 
Rainaeh and Shaw helped to organize and incorporate 
the Association of Citizens Councils of Louisiana 
(R. 630, 644) to “ protect and preserve by all legal 
means, our historical Southern Social Institutions in 
all of their aspects.”  55 In 1956, the Association pub­
lished a pamphlet, prepared by Rainaeh and Shaw, 
entitled “ Voter Qualification Laws in Louisiana—The 
Key to Victory in the Segregation Struggle” (R. 195). 
The Foreword of the pamphlet stated (R. 196) :

The Communists and the NAACP plan to regis­
ter and vote every colored person of age in 
the South. * * *

They are not concerned with wdiether or not 
the colored bloc is registered in accordance with 
law. * * *

The pamphlet advocated that, in order to “maintain 
segregation and to preserve the liberties of our peo­
ple” , the voter qualification laws, including the inter­
pretation test, should be strictly enforced (R. 196, 
198), and the Louisiana registration rolls purged of 
the “ great numbers of unqualified voters who have 
been illegally registered” , and who “ invariably vote in

53 PL Ex. 2, Table 27, p. 77.
m PL Ex. 14. See Appendix D, infra,, p. 93.
55 Pl. Ex. 5A, Article 11(1) (Act of Incorporation).



23

blocs and constitute a serious menace to the com­
munity” (R. 198). The “Key to Victory”—subtitled 
“A  Manual of Procedure for Registrars of Voters, 
Police Jurors and Citizens Councils” (R. 195)— was 
widely distributed (R. 634, 645). It was the principal 
topic of discussion at State-sponsored meetings on 
voter registration (R. 784, 793) attended by registrars 
and other public officials, and it was distributed to all 
persons in attendance.6®

The first phase o f the program was to eliminate 
Negro voters from the registration rolls. In pursuit 
of this objective, Rainach and Shaw, in their dual 
role as legislative and Citizens Council officials, trav­
eled about the State helping to organize local citi­
zens council groups and urging that they challenge 
the registration status of all “ unqualified” voters (R. 
632, 646).67 The consequence was that purges were 
conducted in many parishes throughout the State. 
One such purge, in Washington Parish, was reviewed 
by this Court in United States v. Thomas, 362 U.S. 
58, affirming United States v. McElveen, 180 P. Supp. * 57

66 PI. Ex. 105 through 111. These exhibits are minutes o f 
congressional district conferences on “ Uniform Enforcement o f  
Louisiana Voter Qualification Laws.” The minutes o f two such 
conferences are included in the printed record (II. 778-199).

57 See, also, PI. Ex. 22G, pp. 9-10, PL Ex. 5A-5K. Under 
Louisiana law (La. K.S. 18:245), any two registered voters of 
the parish may file affidavits o f challenge with a registrar o f 
voters stating their belief that a voter is illegally registered 
or has lost his right to vote. The registrar is required to 
notify the registrant thus challenged, who must then appear 
in person before the registrar within ten days and prove his 
right to remain on the registration rolls by affidavit o f three 
registered voters. I f  the challenged registrant is unsuccessful, 
his name is canceled from the rolls. See, also, La. K.S. 18:132-136.



24

10 (E.D. La.). Purges also were undertaken else­
where: e.g., Bienville;58 Be S oto ;59 La Salle (R. 40- 
41) ; Rapides (R. 41-47) ; Lincoln (R. 54-57) ; Ouachita 
(R. 57-64) ; Jackson (R. 65-68) ; 60 Richland (R. 377- 
378) ; Red River (R. 397, 402) ; Union (R. 459, 461); 
Winn (R. 470, 475-479) and East Feliciana (R. 539- 
545). The purges accomplished their objective.61 
Challenges were issued to a vast number of Negroes, 
but only a token number of whites.62 63 White 
registrants whose application forms contained defi­
ciencies similar to those for which Negroes were 
purged were not removed from the rolls.03 The regis­
trar of Winn Parish testified in her deposition that 
Citizens Council members, while reviewing registra­
tion applications and challenging Negroes for alleged 
errors, corrected similar mistakes on their own appli­
cations (R. 476). When contested in federal court, 
the challenges were found to be racially discrimina-

58 PI. Ex. 20A, pp. 146-147. See United States v. Association 
o f Citizens Councils o f Louisiana, 196 F. Supp. 908, 910 (W.D. 
La.), invalidating the Bienville Parish purge and directing that 
the purged voters be restored to the rolls.

69 PL Ex. 162A-D.
60 See United States v. W ilder, 222 F. Supp. 749 (W .D. La.), 

invalidating the Jackson Parish purge and directing that the 
purged voters be restored to the rolls.

61 In parishes on periodic registration (PL Ex. 14; La. E.S. 
18:231), the objective was achieved without resort to the chal­
lenge statute, because the rolls were cleared automatically. In 
other parishes a purge was unnecessary because, as in East 
Carroll, Madison, Tensas and West Feliciana, there were no 
registered Negroes, or, as in Claiborne, only a few (Pl. Ex. 
152).

62 See, e.g., E. 40, 43, 53, 57, 64, 417-418, 475-476; PI. Ex. 
20A, p. 188; Pl. Ex. 20J, p. 221.

63 See, e.g., R. 476; Pl. Ex. 20A, pp. 203-205.



25

tory. United States v. Thomas, 362 U.S. 58; United 
States v. Association of Citizens Councils o f Louisi­
ana, 196 F. Supp. 908 (WJD. L a .) ; United States v. 
Wilder, 222 F. Supp. 749 (W.D. La).

In the wake of the purges, and with .Negro regis­
tration substantially depressed, the Segregation Com­
mittee and the State Board of Registration jointly 
sponsored., in late 1958 and early 1959, conferences in 
each congressional district (R. 776-778). The reg­
istrars of voters were required to attend (R. 481, 
800). Other public officials as well as officers and 
members of Citizens Councils also attended (R. 778- 
781, 785-787):64 At these meetings, which were 
chaired by Rainach (R. 776; 778),65 the “Key to Vic­
tory”  was officially distributed to the registrars (R. 
784-793). Rainach, still chairman of the Segrega­
tion Committee and President of the Association of 
Citizens Councils (R. 630), stressed that registrars 
had “ become critically important officials”  (R. 789) 
and “ the focal point of the solution to our prob­
lems” —problems which “ our forefathers in Loui­
siana”  in 1897 knew would be solved by a “ pro­
gram”  of “ voter qualification law enforcement”  (R. 
790). Rainach outlined the role that such a “ pro­
gram” would play in maintaining Louisiana’s “ sepa­
rate school system and other domestic institutions 
and powers”  (R. 781, 789). He declared that “ [t]he 
fight for school integration in the South has shifted 
from the courts to the political arena, from legal moves 64 65

64 See, also, PL Ex. 105, 107, 109-111.
65 See, also, R. 784,799.

755—226— 64- 3



26

to a fight; for the votes of Negro masses who must be 
fully registered before their political power can be 
brought to bear”  (R. 790). He reminded the regis­
trars that during the Reconstruction Period “  inte­
grated schools were established in Louisiana under 
a Reconstruction Constitution adopted by the Negro 
vote” , and warned that, with Negroes constituting 
32% of the population of Louisiana, the balance of 
Louisiana political power “ could very easily shift in 
the direction it shifted during the Reconstruction 
Era, if Negroes are permitted to register without re­
gard to qualifications provided by law”  (R. 790).

Mr. Shaw—still counsel for the Segregation Com­
mittee and an official of the Association of Citizens 
Councils (R. 644; 649)—explained the registrar’s 
function. He told the registrars that “ [t]he key to 
the solution of our whole problem lies in the inter­
pretation of the Constitution * * *”  (R. 795).06 He 
urged the registrars to require applicants to inter­
pret the Constitution and provided them with 24 test 
cards to be used for that purpose (R. 783, 795).66 67 
He stressed that the interpretation test was a test 
of “ native intelligence,”  not education, and that an 
“ educated fool”  would not be able to qualify. “ Ex­
perience teaches” , he suggested, “ that most of our 
white people have this native intelligence while most 
Negroes do not” , and that, therefore, if  the test were 
“ fairly administered” , most Negroes would be ex-

66 See, also, PI. Ex. 107, p. 5; Pl. Ex. 109, p. 6; PL Ex. 110, 
p. 9; Pl. Ex. I l l ,  p. 5.

67 See, also, PL Ex. 105, p. 3; Pl. Ex. 107, p. 5; Pl. Ex. 109, 
p. 6; Pl. Ex. 110, p. 9; Pl. Ex. I l l ,  p. 5.



27

eluded (R. 650-651). Yet, Mrs. Mary C. Flournoy, for­
merly Registrar of Winn Parish, testified that Rain- 
aeh and Shaw came to her office (R. 474) and that 
(R. 477, 483) :

Rainaeh told me if * * * I  can’t fail them 
[Negro applicants] any other way, I  could 
pull those Constitutional reading cards on 
them. * * *

* * * Mr. Rainaeh wanted me to pull those 
hard cards on colored people.

5 . T H E  IN T E R P R E T A T IO N  TE ST I N  PR AC TIC E

(a) Partial, nullification o f the test

The parties to this suit stipulated that the inter­
pretation test was not in fact used by the incumbent 
registrars in Caddo, Jefferson, East Baton Rouge, or 
Orleans parishes68—the four largest parishes in the 
State—where almost forty percent of the State’s reg­
istered voters reside.69 In the twenty-one parishes in 
which the test was shown to have been administered, its 
earliest known use occurred in 1954,70 and it was not 
generally in use in those parishes until late 1956.71

68 PI. Ex. 16 (E. 32); Transcript o f Hearing, March 4, 1963, 
p. 4 (The transcript begins at p. 84 o f the original record).

69 PI. Ex. 1.
70 The former registrar o f Plaquemines Parish ( who assumed 

office in 1945) testified that he first began to use the test in 
late 1954 (PI. Ex. 20B) (Deposition o f Frank Giordano, pp. 
245, 255-257).

71 The parishes in which the test was shown to have been 
used, and the dates o f commencement, are Bienville (1955) 
(E. 441); Claiborne (date unknown) (PL Ex. 4 ) ;  De Soto 
(1956 or thereafter) (E. 569); East Carroll (1961) (E. 531); 
East Feliciana (date unknown) (E. 541); Franklin (1958 or 
1959) (E. 491-492); Jackson (1960) (E. 585); La Salle (1955 
or 1956) (E. 348); Lincoln (test commenced because of “pres'

J



28

Though some effort was made to generalize employ­
ment of the test after that time, the Board of Regis­
tration issued no binding instructions with respect 
to administering the interpretation clause, contenting 
itself with “ suggestions”  and ambiguous “ recom­
mendations”  (see R. 606, 607, 626, 803, 804, 813, 815). 
In October, 1961, the Board for the first time adopted 
a clear-cut resolution directing registrars throughout 
the State to use the test and prepared written cards 
for that purpose (R. 146-169, 608-609) ; but the indica­
tion is that the resolution never left the Board’s office 
(R. 612-617). In any event, it is clear that the regis­
trars, if advised, did not obey. Moreover, less than a 
year later (in mid-1962, while this suit was pending), 
the Board promulgated comprehensive instructions im­
plementing the new “ citizenship test”  and omitted all 
reference to the interpretation test (R. 224-234). 
See infra, pp. 43-45.

(b) The testing o f some applicants but not others

In some of the parishes where the test has been 
used the registrars have not tested every applicant. 
The relevant provisions of the Louisiana Constitu­
tion and statutes {supra, pp. 2-3) require only that 
the applicant shall “ be able to”  understand and give

sure” ; commencement coincided with first attempts o f Negroes to 
register in large numbers) (R. 506, 511-512); Ouachita (1956) 
(R. 63); Rapides (date unknown; test in use at least since 
June IB, 1^56) (R. 355); Red River (1956) (R. 400); Rich­
land (1957) (R. 377); St. Helena (1959) (R. 421, 423); Union 
(1956) (R. 461); Webster (1957) (R. 49); West Feliciana 
(1959) (R. 577); Winn (1960) (R. 471); Plaquemines (1954) 
(PL Ex. 20B, supra, note 70; United States v. F ox , 211 F. 
Supp. 25 (E.D. La.), affirmed, 334 F. 2d 449 (C.A. 5 )).



29

a reasonable interpretation of a constitutional sec­
tion. The registrar of La Salle Parish testified that 
he did not give each applicant the test because he 
understood these requirements “ to mean that they 
must be able to and not that they must do it each 
time”  (R. 350). The former registrar of Lincoln 
Parish gave the test to some applicants, but not to 
others, because she “ could tell when they were quali­
fied and when they weren’t * * * ”  (R. 510). The 
Webster Parish registrar was more likely to dispense 
with the test if  she knew the applicant (R. 175).72

(c) Divergent standards and procedures in the use o f the
test

Those registrars who have administered the test 
have employed widely divergent standards and proce­
dures in determining which constitutional sections to 
use. Some chose only provisions from the State con­
stitution (R. 428, 433, 487) ; others employed sections 
exclusively from the federal Constitution (R. 588). 
In Red River Parish, the registrar ordinarily used 
only two sections, and occasionally another “ just to 
break the monotony”  (R. 405). The Webster Parish 
registrar opened a book containing the Louisiana 
Constitution “ at random”  and required the applicant 
to interpret the section which appeared on the page 
revealed (R. 394). Some registrars employed a set 
of test cards (each containing three sections of the 
Constitution) which were distributed to them by the 
Segregation Committee (R. 9-20, 201, 409, 472-473, 
493-494, 532-533, 541, 556, 578). The registrar of

72 See, also, R. 62.



30

Ouachita Parish used, a set of test cards containing 
sections chosen by the Citizens Council (R. 63). The 
Plaquemines Parish registrar used cards provided by 
Leander Perez, the Parish District Attorney.73

To one registrar the selection of a test question was 
“ just about a ene-mene-minee-mo situation * * * ”  
(R. 464). But others tailored the test to fit the. appli­
cant. The registrar of Red River parish would choose 
a card which he “ thought the particular applicant 
would be capable of answering”  (R. 411) and accord­
ingly gave an attorney a “ pretty hard card”  (R. 410; 
compare R. 467). The former registrar of Lincoln 
Parish similarly “ picked out what * * * [she] 
thought would be good for * * * [the] particular 
individual”  (R. 507).

While several registrars required an applicant to 
give a reasonable interpretation of one of three sec­
tions on a test card (R. 542, 533, 579), others 
required two out of three (R. 357, 497) and still 
others demanded a reasonable interpretation of each 
of three sections (R. 411, 531). One registrar would 
give an applicant at least two more provisions if he 
failed to interpret the first one, and, sometimes, if he 
failed on all three, would ask him “ just to pick out 
•any part of the Constitution and see if he could inter­
pret that”  (R. 463). Some registrars would define 
a word that the applicant did not understand (R. 
356; 372), or give the applicant a dictionary (R. 544). 
Others would refuse to give the meaning of trouble­
some words (R. 382, 427, 447, 535, 591).

73 PL Ex. 20L, p. 528.



31

For some registrars it was enough that the applicant 
read the constitutional section silently; his interpreta­
tion sufficed to show whether he could read it (R. 349, 
517), Other registrars insisted that the applicant 
read the constitutional section aloud (R. 472, 485, 506, 
542, 579). Many registrars allowed the applicant to 
refer to the constitutional section while giving his in­
terpretation (R. 357, 372, 544, 582). But one required 
the applicant to “hand the book back”  after reading 
the section, and refused to permit the applicant to 
examine the section further (R. 337-338). The regis­
trar of Rapides Parish read the applicant a portion 
of the Constitution (R. 587), and did not let him look 
at the section at all (R. 591).

Most registrars required applicants to give their 
interpretations orally (R. 361, 374, 381, 401, 424, 448, 
465, 473, 485, 531, 542, 570, 587). A  few asked for 
written interpretations (R. 497; PI. Ex. 20L, p. 537). 
Registrars were not required to maintain a record of 
the test questions put to the applicants or the interpre­
tation given, and most registrars kept no records or 
virtually none (R. 352, 360-361, 374, 381, 394, 406, 
425, 465, 473, 518, 532, 571, 582, 588).

6 . r a c i a l  d i s c r i m i n a t i o n  i n  t h e  a d m i n i s t r a t i o n  o f  t h e

IN T E R P R E T A T IO N  TEST

The present record focuses on seven of the twenty- 
one parishes where it appears that the interpretation 
test was used.74 In each of these parishes the evidence

74 In these parishes—Plaquemines, Red River, Jackson, Bien­
ville, Webster, East Feliciana and Ouachita.—the United States 
-had filed or was preparing separate suits under 42 U.S.C. 1971



32

is that the registrar discriminated on racial grounds 
in the administration of the test. The discrimination 
assumed various form s:

(a) Administration o f the test to Negroes but not to whites

In several parishes the test was given to .Negroes 
but not to whites. Thus, in United States v. Clement, 
231 F. Supp. 913 (W.D. La.)—a separate suit brought 
by the United States against the Webster Parish reg­
istrar—the court found that the registrar, between 
January 1957 and September 1962, gave the test “ only 
to Negroes” , and that she reintroduced the test “ in 
1963, at a time when large numbers of Negroes began 
to apply and were successfully completing the citi­
zenship test” ,75 and, again, the intrepretation test “'was 
administered only to Negroes.” The court noted that 
“ [t]hirty-one Negro witnesses testified that they took 
and failed the oral test at least once, while twenty- 
seven white witnesses testified that they registered 
without taking the oral test.”  231 F. Supp. at 915. 
Highly educated Negroes were required to take the 
test and gave interpretations which failed to satisfy 
the registrar. The court in Clement found that (231 
F. Supp. at 915) :

Among the Negroes who were denied registra­
tion for mailing the oral test were three public 
school principals, four public school teachers, a 
dentist, and an insurance agent. At the same

to restrain racial discrimination in the registration of voters 
and evidence consequently was readily available for use by the 
government in the present case.

75 The new test, initiated in August, 1962, is described infra, 
pp. 43-45. See, also, the relevant constitutional and statutory 
provisions, supra, pp. 4-5.



33

time, white persons with sixth-grade, fifth- 
grade, and even second-grade educations suc­
cessfully registered without being required to 
take the test.

The record reflects similar discrimination by the 
Jackson Parish registrar, who also was a defendant 
in a separate suit brought under 42 U.S.C. 1971. 
United States v. Wilder, 222 P. Supp. 749 (W.D. 
La.). In Wilder the court found that (222 P. Supp. 
749, 752) :

* * * [T]he defendant registrar has required 
Negro applicants but not white applicants to 
interpret sections of the federal Constitution.
* * * She has rejected otherwise qualified 
Negroes for failure to interpret to her satisfac­
tion a section of the Constitution. * * *

Among the Negroes rejected in Jackson Parish for 
failing the interpretation test were at least two school 
teachers and a college student.76 The Negro college 
student failed the test after reading a portion o f the 
Constitution on the registrar’s instruction, not know­
ing that after reading it she would have to interpret 
it without a second look (R. 327). White persons 
with less than seventh grade educations registered 
during the same period without taking the test at all, 
so far as they could remember (R. 329-335).

Again, in East Peliciana Parish, between 1958 and 
1961 eight Negro school teachers failed the intepreta- 
tion test while eight white illiterates were registered

76 K. 323-328, 336-338. The registrar kept no record o f the 
administration o f the interpretation test, except for occasional 
notes on the rejected application forms o f Negroes. (E,. 588; 
PI. Ex. 4 -JX .)



34

(see R. 128).77 Some white persons were not required 
to read or explain anything to the registrar (R. 767- 
768, 774). Other white persons received only a token 
test. White registrant Eva Dees described the ad­
ministration of the test as follows (R. 772) :

He hold out a bunch of cards, and I  drawed 
one, and then he taken it back. I  didn’t even 
look at the card. He taken it back and he read 
on there, and he asked me did I  think every­
body should go to the same church, * * * and 
I said I  thought everybody should go to the 
church of their choice.

Yet, a Negro minister was rejected after interpreting 
the clause on search and seizure as “ To search you 
would have to get an authorized authority to read a 
warrant”  (R. 760).

(b) Assistance given to whites hut not to Negroes

Discrimination in the administration of the test also 
took the form of assistance given to whites but not to 
Negroes. In United States v. Fox, 211 E. Supp. 25 
(E.D, La.) affirmed, 334 E. 2d 449 (C.A. 5 )—a sepa­
rate suit brought by the United States against the reg­
istrar of Plaquemines Parish—the trial court found 
that “ [t]he evidence abundantly shows that some of 
the white registrants now on the rolls received help in

77 See PL Ex. 4-EF. This exhibit consists o f microfilm cop­
ies o f the voter registration records for East Feliciana Parish. 
Xerox copies o f the application forms o f the eight Negro 
teachers were submitted to the trial court in a special display 
which was not offered in evidence. The statistical reports of 
the Louisiana Secretary o f State reflect that between October 
1958 and October 1961, the number of white illiterates regis­
tered in East Feliciana Parish increased by eight. PL Ex. 14.



35

the filling out of their * * * constitutional test 
cards.” 211 F. Supp. at 33. Commenting on a dis­
play furnished to the court by the United States 
showing similar interpretations for the period Octo­
ber 4-7, 1960, the court stated: it “ shows conclusively 
that all of the 55 (white) applicants in the display 
were either assisted in taking the test or provided 
with the written answers for them to copy * * *”  
{ibid.).

The testimony, depositions and exhibits in the Fox 
case, which were introduced into evidence in the 
present case,78 substantiate the court’s finding. The 
uncontradicted testimony of a white witness at the 
hearing on the motion for preliminary injunction in 
Fox was that, when she was unable to read and inter­
pret the constitutional provision on her test card, the 
deputy registrar wrote out the answers on a separate 
sheet o f paper so that she could copy them (PI. Ex. 
20K, pp. 338-339). The testimony of many white 
registrants at the hearing showed that they did not 
have the slightest comprehension of the constitutional 
provisions which the registrar found they had inter­
preted satisfactorily (PL Ex. 20J, pp. 299-300, 321). 
Whites gave strikingly identical interpretations of 
constitutional provisions on given days which differed 
markedly from the interpretations—virtually identi­
cal to each other—which white applicants gave on

78 PI. Ex. 4—P L ; PL Ex. 20B; PL Ex 20J-L.



36

other days.79 Negroes, on the other hand, uniformly 
were refused assistance on the interpretation test.80

(<?) Discriminatory Selection o f Constitutional Sections for  
Interpretation

In United States v. Fox, supra, the trial court, be­
sides finding that the Plaquemines Parish registrar 
had assisted whites on the interpretation test, also 
found that, although the constitutional test forms in use 
in the parish had been distributed evenly since 1961, 
before that year “ white applicants were apparently 
given the easier forms to answer * * 211 F. Supp.
at 33.81

79 One dramatic example is the interpretation o f the Tenth 
Amendment in Plaquemines Parish. Leander Perez, the Dis­
trict Attorney, had suggested the following interpretation:

State rights, or the right of the people to self government 
in the States, and the natural rights o f the people were speci­
fically reserved in the 10th Amendment to the United States 
Constitution.

On January 20, 1956, 30 o f 31 white applicants answered 
the question (and were accepted) with an identical two-word 
interpretation: “ States rights.”  Yet, on September 18, 1958, all 
12 white applicants gave the following wordy interpretation 
(with only the slightest variation): “ The right o f the people to 
self government in the state and the natural right o f the peoples 
are reserved in the 10th amendment.” Finally, on October 9, 
1959, 12 white applicants discovered a middle ground (again, 
with only trivial differences): “ States right or people’s right 
to self-government.” See PI. Ex 4—PL.

80 Depositions o f Carolyn Sapp, February 27, 1962, p. 101; 
Rosa Thurmond, February 27, 1962, p. 120; Catherine Prout, 
February 27, .1962, pp. 133, 144; Thelma Taylor, February 27, 
1962, pp. 172-173; John Taylor, February 27, 1962, p. 13; 
Martha Williams, March 1, 1962, p. 76; Sarah Brown, March 1, 
1962, p. 99 (PI. Ex. 20B).

81 In 1959, 96 percent o f the 1,586 white applicants received 
one o f the two easiest o f the 25 test cards then in use. PI.



37

Similarly, in Red River Parish, for the short pe­
riod of time during 1957 in which the registrar used 
printed forms to administer the interpretation test, 
87.4 percent of the white applicants received an iden­
tical and relatively simple test given to only 5 per­
cent of the Negro applicants.82 Conversely, 36.4 per­
cent of the Negro applicants received a comparatively 
more difficult form which only 2.5 percent of the 
white applicants received.83

(d) Discriminatory Grading o f Interpretations

Another form of discrimination against Negroes in 
the administration of the test was in the grading of 
the interpretations. In Bienville Parish, whites who 
never had gone to school, including one illiterate, 
“ passed” the test (R. 297, 301). On the other hand, 
at least five Negro school teachers,84 including two 
with masters’ degrees, from Columbia and Stanford 
Universities respectively (R. 285, 289), failed the test.

One Negro school teacher who failed testified as fol­
lows (R. 290-291) :

Ex. 4-PL. Each of these cards (nos. 2 & 8) contained a clause 
on freedom o f  speech and on freedom o f religion. No Negro 
received eitther of these two cards. Ibid.

82 This form contained two provisions about freedom of 
religion and one about freedom of speech. PI. Ex. 4-RR. 
Sample forms uesd in Red River Parish are contained in PI. 
Ex. 11-G.

83 Ibid. In addition to a provision about freedom o f speech, 
this form contained provisions concerning ex post facto laws 
and self-incrimination.

84 PI. Ex. 20A, pp. 277-284, 322-333.



38

Q. To the best of your recollection, this is 
the provision she gave to you ; is that correct ?

A. Yes, sir.
Q. Would you mind reading that provision'?
A. “ Section 16. Rolling stock operated in 

state—rolling stock operated in this state, the 
owners of which have no domicile therein, shall 
be assessed by the Louisiana Tax Commission 
and shall be taxed for state purposes only, at 
a rate not to exceed 40 mills on the dollar as­
sessed value.”

*  *  *  *  *

[The witness explains she cannot repeat ver­
batim the interpretation she gave the registrar]

The C o u r t : In the first place, do you know 
what the term “ rolling stock”  means?

The W it n e s s : I think it has to do with loco­
motives, freights, and passenger cars and the 
like.

By Mr. O w e n  :
Q. What does this provision say about roll­

ing stock?
A. My understanding is that it means if  the 

owner of which does not have residence within 
the State, his rolling stock shall be taxed not 
to exceed 40 mills on the dollar. :

Q. Do you have any recollection as to what 
Mrs. Culpepper said to you after you attempted 
to interpret this provision ?

A. She just said, “ I  am sorry. Your inter­
pretation is incorrect.”  And I  said, “ Thank 
you. ’ ’ And went out.

The discriminatory practices of the Bienville Parish 
registrar were the subject of a separate suit brought 
by the government under 42 U.S.C. 1971, United 
States v. Association of Citizens Councils of Louisiana,



39

196 F. Supp. 908 (W.D. La.). The court there found 
(196 F. Supp. at 911) :

At the trial the Government presented a veri­
table parade of Bienville Parish Negroes, hold­
ing bachelor’s and master’s degrees, who, since 
1956, on one teehnicalitv or another, have been 
denied the right to register or re-register. An 
equally impressive group of white persons testi­
fied that they were permitted to register, al­
though * * * their level of education was far 
below those of many of the Negro applicants. 
It is perfectly clear from all the evidence that 
the Registrar * * * has applied far more strin­
gent qualification standards upon Negro appli­
cants than she has upon whites, solely because 
of race. * * *

In Red River Parish, a Negro school teacher, who 
testified that she had been denied registration three 
times for failing to interpret sections of the Constitu­
tion to the satisfaction of the registrar (R. 721-725), 
on one occasion was rejected for failure to interpret 
satisfactorily the Fourth Amendment to the Constitu­
tion of the United States (R. 724). She told the reg­
istrar that the Fourth Amendment means “ that no­
body could just go into a person’s house and take their 
belongings without a warrant from the law, and it had 
to specify in this warrant what they were to search 
and seize”  (R. 724). The registrar told her that this 
was wrong {ibid.). In Ouachita Parish, a Negro 
beautician with a high school education (R. 702) 
testified that her registration had been challenged in 
1956, and that upon her re-registration she had been 
required to read and explain a constitutional provi­



40

sion (R. 703-704). The register “ reached under the 
desk” and obtained a test card, looked at it, put it 
back, and then gave the applicant another one (R. 
704). Asked to explain the contents of the card, the 
applicant told the registrar what she thought it meant, 
but the registrar “ said what I  was saying was right, 
but wasn’t the way she wanted me to say it” (R. 704). 
Yet, in the few parishes where interpretations were 
reduced to writing, registrars accepted from white 
persons interpretations such as “ Freedom of Reli­
gion”  for a section entitled “ Freedom of Religion”  (R. 
427).

(e) Administration o f the test to Negroes discnminatorily 
'purged from  the rolls while leaving on the rolls whites who 
never had taken the test

In the parishes where Negroes were diserimina- 
torily purged from the rolls {supra, pp. 23-24), the 
interpretation test was given to the purged Negroes 
who sought to re-register, while whites, who had not 
taken the test because it had not been in use before 
the purge, remained on the registration rolls without 
being subjected to the test.85 An example is Red 
River Parish, where the test was first employed in 
1956. In United States v. Crawford, 229 F. Supp. 
898, (W.D. La.), the court found that (229 F. Supp. 
at 900) :

In October 1956, the local Citizens Council 
challenged the registration status of 1,146 of the 83

83 In some parishes—e.p'., East Feliciana (E. 818)— one o f 
the grounds for the purge was that the challenged registrants 
had not been required to interpret a constitutional section, al­
though at the time they had registered the regristrar had re­
quired no one to take the test.



41

1,362 Negro voters and 27 of the 3,585 white 
voters. * * * The Registrar thereafter sent out 
citations to the challenged voters and removed 
their names from the voter rolls * * *. When 
* * * [the purged voters] attempted to re­
register, they were required to interpret three 
constitutional clauses which were printed on 
test cards. At least 35 Negroes were rejected 
when they attempted to re-register after the 
purge and before January 1, 1957.

A  majority of the 35 Negroes were rejected on the 
ground that they could not pass the interpretation 
test (PI. Ex. llGr). The court held that “ [t]he 
practice o f using the interpretation test * * * as a 
device to discriminate against Negroes is in violation 
o f 42 U.S.C. § 1971(a) and the Fourteenth and 
Fifteenth Amendments to the Constitution of the 
United States.”  229 F. Supp. at 902.

Similarly, in Ouachita Parish, on the heels of a 
Citizens Council purge of more than 3,000 Negroes 
in 1956 (R. 57-60), the registrar began using the 
interpretation test for the first time (R. 61-63, 644). 
Even though the registrar had not administered the 
test*to. anyone prior to the purge, one of the grounds 
for the removal of the Negro registrants was inability 
to give a reasonable interpretation of the Constitution 
(R. 59). Those of the challenged Negroes who were 
unknown to the registrar, and whom she “ suspected” 
of being unable to read and interpret a portion of 
the Constitution, were required to undergo the inter­
pretation test (R. 62). Negro registration abruptly

755-220— 04w-— 4



42

declined.86 The unchallenged whites, who had never 
been subjected to the test, remained on the rolls.87

In some parishes permanent registration was 
adopted following the purge, so that the whites who 
had been registered without taking the interpretation 
test were frozen on the rolls. In Bienville Parish the 
registrar began using the interpretation test in No­
vember 1955 (R. 441). This was followed in Septem­
ber, 1956, by a Citizens Council purge of 95% of the 
registered Negroes and 1% of the registered white 
persons.8S Immediately thereafter, the parish adopted 
permanent registration. United States v. Association 
of Citizens Councils of Louisiana, 196 F. Supp. 908, 
911. Thus, the interpretation test became a require­
ment for Negroes but not for the whites who were 
permanently enfranchised. Ibid.

86 In March 1956, there were 5,782 Negroes on Ouachita’s 
registration rolls (PI. Ex. 151). Only 952 Negroes were on the 
rolls as o f August 1962 (PL Ex. 14). White registration in­
creased during this period from 24,184 to 24,995 (PI. Ex. 14). 
See Appendix D, infra, p. 93.

87 In the 6 years following the purge, 37.6% of the Negro 
applicants were rejected for alleged failure to pass the test. 
Less than one-half o f one percent o f the white applicants were 
rejected for this reason. PL Ex. 27. The following table gives 
the comparative picture:

March 1, 1956-August 31, 1962

P a ssed  T e s t F a iled  T e s t P ercen t

819 493 37.57
.4611,555 53

88 PL Ex. 4-BV .



43

7 . T H E  D E C LIN E  I N  NEGRO R EG ISTRATIO N  F O L L O W IN G  E M P L O Y M E N T  

OF T H E  IN T E R P R E T A T IO N  TEST

As the table in Appendix D (infra, p. 93) re­
flects, between 1956 and 1960, in the parishes where 
the interpretation test was used, Negro registration 
dropped sharply while white registration remained 
constant. In those 21 parishes the total number of 
registered Negroes fell from 25,361 to 10,256. This 
decline was applauded in a report issued in 1961 by 
the Louisiana Subcommittee on Registration, an 
adjunct of the State Sovereignty Commission (R. 
805). Reviewing the comparative voter registration 
totals of Negroes and whites since 1888, the report 
called attention to the fact that from 1956 until 1960, 
“ the registration figures of colored people actually 
declined 2,377” even though 81,214 Negroes became of 
voting age, whereas “ 114,629 white people * * * be­
came of voting age and * * * white registration in­
creased 96,620” (R. 809). In reviewing the “prog­
ress” that had been made, the report stated that 
“ registration in the State of Louisiana seems to have 
stabilized itself. From 1956, in which you had 84.7 
percent white and 15.3 colored, we, today, have 86.2 
percent white and 13.8 percent colored” (R. 811).

8 . T H E  AD O PTIO N  OF T H E  N E W  “ C IT IZ E N S H IP ”  TEST

In August 1962, eight months after the filing o f this 
action, a new “ citizenship” test was introduced as a 
prerequisite to voting registration. By a measure



44

passed in June and effective August 1 89 (La. ILK. 18: 
191A, as amended by La. Act 62 of 1962, supra, p. 
5 )—later expressly ratified by constitutional amend­
ment (La. Const., Art. V III , § 18, as amended by La. 
Act 539 of 1962, adopted November 6, 1962, supra, 
p. 4 )90—the legislature instructed the State Board of 
Registration to “ prescribe and direct the registrars 
of voters to propound an objective test o f citizenship 
under a republican form of government.” The Board 
promptly, complied. It prepared, and directed all 
registrars to use, a set of ten cards, each containing 
six multiple-choice questions (R. 235-244). The ap­
plicant selects one of the ten question cards, and must 
answer correctly four of the six questions on the card 
in order to register (R. 228). The applicant marks 
his answers on answer cards, called the “ Form 11”  
(R. 245-246).

The new test was made compulsory and the accom­
panying instructions from the Board of Registration 
made no reference to the constitutional interpretation 
test (R. 225-231). Indeed, as we have noted, it has 
been suggested that the citizenship test was intended 
to wholly supplant the old test. Yet, the provisions of 
the Louisiana Constitution and statutes relating to the 
interpretation test were not repealed, and there is

89 Although approved by the Governor on June 21, the meas­
ure was not certified as “ emergency legislation” and accordingly 
became effective 20 days after the adjournment o f the 1962 legis­
lature, i.e., August 1, 1962. See A cts o f Louisiana, Regular 
Session 1962, pp. iii, 123 (Act 62).

90 Existing provisions o f Section 1 o f Article V III  o f the 
State Constitution (supra, p. 4) were apparently viewed as a 
sufficient predicate for the legislation.



45

evidence that, in at least one parish, the former consti­
tutional interpretation test was revived. See United 
States v. Clement, 231 F. Supp. 913, 915 (W.D. La.). /

C. THE DECISION BELOW

The court below (Judge West dissenting) found 
that the interpretation test “ was adopted in 1921 for 
the purpose of creating a device to discriminate 
against Negroes” ; that until the 1950’s “ the test was 
not needed and not used” ; that State officials in the 
1950’s reaffirmed the test’s discriminatory purpose 
when they urged that it be used to disfranchise Ne­
groes; that since the mid-1950’s the test consistently 
has been used to achieve its intended discriminatory 
purpose (R. 86) ; and that it had succeeded in disen­
franchising Negroes, directly when used against them,
indirectly by inhibiting others from applying for 
registration (R. 135). The court concluded that the 
interpretation test vests in the registrars an uncon­
trolled discretion to determine subjectively which per­
sons are qualified to vote, that it bears no relation­
ship to literacy or to any qualification for voting 
within the legitimate interest of the State (R. 87), J 
and that it is unconstitutional “ because o f its unlaw­
ful purpose, operation, and inescapably discriminatory I 
effect”  (R. 139-140).

With respect to the new multiple-choice “ citizen­
ship” test, the court concluded that it makes registra­
tion more difficult for future applicants than it had 
been for white persons in the twenty-one parishes 
where the interpretation test had been used (R. 88). 
The court found that the State had neither ordered a



46

re-registration in the twenty-one parishes, nor taken 
any other steps to correct, the discrimination resulting 
from the interpretation test (R, 88), and that the use 
of the new test inevitably discriminates against Ne­
groes since they constitute the unregistered class 
(R. 88).

In its decree the court declared the Louisiana con- I 
stitutional and statutory provisions authorizing the I 
interpretation test unconstitutional (R. 81) and en-f 
joined the defendants and their agents, including all 
Louisiana registrars, from using the test (R. 83). The 
court also issued an injunction restraining the regis­
trars of the twenty-one parishes where the test had 
been used in the past from requiring, in the absence 
of a general re-registration of all voters in the parish, 
any applicant for registration who was of voting age 
and possessed of the residence requirements as of 
August 3, 1962 (the date the new test was adopted) 
to take the multiple-choice “ citizenship”  test as a pre­
requisite to registration to vote (R. 82).91 The reg­
istrars of the twenty-one parishes were further or­
dered to submit monthly reports to the court showing, 
by race, the persons accepted and rejected, and, in 
the case of rejected applicants, the reasons for re­
jection (R. 83).

91 The court retained Jurisdiction “ for the purpose o f enter­
ing such additional orders as justice may require, including 
orders o f modification upon proof by the defendants that in 
one or more o f the * * * twenty-one parishes the discriminatory 
effects o f the interpretation test have ceased to exist or upon 
proof by the plaintiff that additional parishes not embraced in 
this decree have used the understanding or interpretation test 
to discriminate against Negroes” (E. 83).



47
S U M M A R Y  OF A R G U M E N T

I

Because the issues are fully briefed in the com­
panion case of United States v. State of Mississippi 
(No. 73), we do not here repeat the discussion directed 
to two threshold questions: (1) whether the United 
States is authorized to institue proceedings challenging 
the constitutionality of State voter qualification laws 
(as opposed to the independent local practices of indi­
vidual registrars), and (2) whether, in any event, the 
State itself may be joined as a party defendant in such 
an action (particularly when there are local regis­
trars amenable to suit). We here adopt the affirm­
ative conclusion on those points and the supporting- 
arguments already given in the Mississippi case.

A  third preliminary argument is that the State 
Board of Registration of Louisiana is not a proper 
defendant. Our reply is that the board is expressly 
charged by statute (and now by the State Constitu­
tion) with prescribing the practical means for imple­
menting the voter qualification laws, including the 
constitutional understanding-and-interpretation clause, 
and that it can, moreover, effectively control the local 
registrars through its plenary power to remove them 
“ at will. ”

It is also contended that the local registrars of vot­
ers (who were not joined) were indispensable parties 
defendant. The short answer is that, though they 
were necessarily affected by the decree and would have 
been proper parties, the individual registrars were 
not indispensable because they had no personal in-



48

terest in the outcome nor any personal defense to the 
claim. The suit did not seek to control the registrars’ 
discretion: the only objective of the proceeding was to 
enjoin the execution of invalid State laws, and that 
State interest was appropriately represented by the 
named defendants, the State Board and the State 
itself.

I I

The Louisiana constitutional and statutory provi­
sions conditioning voting registration on the appli­
cant’s ability to “ understand and interpret”  any sec­
tion of the state or federal Constitutions contravene 
the Fifteenth Amendment (and 42 U.S.'C. 1971(a)) 
because, potentially and actually, they invite racial 
discrimination in the qualification of voters.

A. On its face, the Louisiana constitutional inter­
pretation test is suspect. It is no mere literacy test: 
it erects an unnecessarily difficult standard which, if  
taken seriously, would bar the franchise to most 
adults. Presumably, it was designed for selective en­
forcement. The test is admirably suited to that end. 
The subjective standard is necessarily vague and, 
given the great disparities among the several examina­
tion texts, it is inherently unequal. Moreover, no 
effort is made to confine (by statute or by uniform 
regulation) the absolute discretion of individual reg­
istrars with respect to the procedures to be followed 
in administering the test or the criteria for judging 
the adequacy of the constitutional interpretation given 
by an applicant. The opportunities for discrimination 
which the interpretation test presents do not represent 
remote possibilities. In light of the prevailing public



49

and private pressures, it was almost inevitable that the 
flexibility' of the provision would be widely used as a 
device to bar the Negro from the exercise of the 
franchise.

B. The history of the practical administration of 
the interpretation test fully confirms this view. In 
fact, the apparently mandatory qualification was ig­
nored until it became useful as a means of holding 
Negro registration within “ tolerable limits.”  When 
and where actually used, however, the interpretation 
test has been effective, as the registration statistics 

a for the 21 parishes involved dramatically demonstrate.
The evidence is that racial discrimination resulted 

j from the inherent versatility of the test, which con- 
j doned gross disparities, along color lines, in the mode 
I of administration, the selection of examination texts, 
; and the grading of responses. We conclude that the 

implementation of provisions which breed these prac­
tices was properly enjoined.

I l l

Finally, we address ourselves to the conditional in­
junction against the use of a new multiple-choice “ cit­
izenship”  test in those 21 parishes where it was shown 
that the constitutional interpretation test had been 
used, until such time as there has been a complete re­
registration of voters in those parishes. That relief 
was wholly appropriate in the present circumstances 
because it was the only practical means of partially 
erasing the discriminatory effect of the interpretation 
test. I f  the new high standard were now applied to 
future registrants it would impose an mifair burden



50

upon Negroes improperly denied registration through 
the interpretation test, and would “ freeze”  on the rolls 
those whites who were registered under more favor­
able and discriminatory conditions.

A R G U M E N T

I
THE UNITED STATES IS AUTHORIZED TO MAINTAIN THE 

PRESENT ACTION AND TO JOIN AS DEPENDANTS THE 
STATE AND THE STATE BOARD OF REGISTRATION, W ITH­
OUT ALSO JOINING THE INDIVIDUAL REGISTRARS

So far as it is argued here that this suit by the 
United States is unauthorized (because it challenges 
the validity of voter qualification laws, and not merely 
the personal misdeeds of individual registrars) and 
that the State itself may not be sued (at least when 
registrars are available as defendants), the conten­
tions are identical to the points advanced by the State 
in the companion case of United States v. State of Mis­
sissippi (No. 73). Indeed, for these propositions, the 
present appellants wholly rely on the majority opinion 
below in that ease, and we agree that the same con­
siderations govern both cases. Accordingly, on these 
issues, we respectfully refer the Court to our brief in 
the Mississippi case (see pp. 43-65).

There remain, however, two procedural questions 
which require separate treatment here. These are: 
(1) whether the State Board of Registration (or its 
members, the Governor, Lieutenant Governor and 
Speaker) was properly joined as a party defendant 
in this action; and (2) whether the local registrars 
of voters (all of them or those of the 21 parishes



51

most directly affected by the decree) were indispensa­
ble parties without whom the suit could not proceed.

A. JOINDER OF THE STATE BOARD OF REGISTRATION WAS
PROPER

The State Board of Registration has an important 
role in the administration of the Louisiana constitu­
tional and statutory provisions under attack. Not­
withstanding appellants’ claim that neither the Board 
of Registration nor any of its members is charged 
with enforcing or are threatening to enforce any of 
the provisions challenged here (App. Br. 9, 11), Sec­
tion 191 of Title 18 of the Louisiana Revised Statutes 
explicitly vests the Board with the duty to “ prescribe 
by rules and regulations * * * the method of the ad­
ministration of this Chapter” (i.e., Chapter 1 of Title 
18, entitled “ Registration of Voters” , which contains 
each of the statutory provisions implementing the con­
stitutional interpretation test, supra, p. 3). To 
be sure, until 1962, the Board did little to assert its 
prerogative (see Statement, supra, p. 28), but the 
power remained. Moreover, in 1962, the Board’s 
rule-making authority was expressly confirmed by 
constitutional amendment (La. Const. Art. V III, § 18, 
as amended by La. Act 539 of 1962), and, in the same 
year, it was expressly directed both by the State Con­
stitution (ibid, supra, p. 4) and by statute (La. R.S. 
18:181A, as amended by La. Act 62 of 1962, supra, 
p. 5) to fashion, and instruct the registrars to ad­
minister, the “ citizenship” test now enjoined in 21 
parishes. And it complied (see Statement, supra, 
p. 44).



52

In the circumstances, it was clearly proper to join 
the members of the State Board, if only to relieve 
them, and the local registrars whom they have power 
to remove “ at will”  (La. Const., Art. V III, §18), 
from the dilemma of conflicting directives. Cf. Bush 
v. Orleans Parish School Board, 187 F. Supp. 42 
(E.D. La.), affirmed, 365 U.S. 569; id., 188 F. Supp. 
916, 928-929, affirmed, 365 U.S. 569; id., 190 F. Supp. 
861, 865-866, affirmed, 366 U.S. 212; id., 191 F. Supp. 
871, 873-875, affirmed, 367 U.S. 908. See, also, 
United States v. Barnett, 376 U.S. 681, 684.92

There is, in any event, no requirement that relief be 
sought, or granted, only against the subordinate offi­
cial most immediately engaged in administration of 
the challenged law. On the contrary, it is well settled 
that a three-judge court may properly enjoin all those 
charged with executing an unconstitutional statute. 
Bevins v. Prindable, 39 F. Supp. 708 (E.D. 111.), 
affirmed per curiam, 314 U.S. 573; Orleans Parish 
School Board v. Bush, 268 F. 2d 78, 80 (C.A. 5).

92 A  student o f Louisiana Constitutions for the Louisiana 
Law Institute notes that:

The [1921 Louisiana] Convention placed the power to re­
move any registrar in the State in the hands o f an ex 
oificio board o f registration composed o f the governor, lieu­
tenant governor, and speaker, a majority o f whom were 
more than likely to be white men. Should any registrar show 
a tendency to administer the new registration tests too lib­
erally, or otherwise to conduct his office in a manner dis­
pleasing to the administration, the state board could 
remove him at will. * * *

Powell, A  H istory o f Louisiana Constitutions, Volume 1, Part 1, 
P roject o f a Constitution fo r  the State o f Louisiana (1954), 
p. 485.



53

See, also, James v. Almond, 170 F. Supp. 331, 341 
(E.D. Ya.), appeal dismissed, 359 (T.S. 1006; Evans 
v. Members of the State Board of Education, 149 F. 
Supp. 376, 378 (D. Del.), affirmed sub nom. Evans v. 
Buchanan, 256 F. 2d 688 (C.A. 3), certiorari denied, 
358 U.S. 836. The Louisiana Board of Registration, 
like the Board of Election Commissioners of Missis­
sippi,93 clearly falls in that category.

B. THE INDIVIDUAL REGISTRARS WERE NOT INDISPENSABLE
PARTIES.

The contention that the registrars are indispensable 
parties to this suit is likewise without merit. A  party 
is indispensable only if the decree would injuriously 
affect his rights or leave the final determination of the 
controversy inconsistent with equity and good con­
science. Shields v. Barrow, 17 How. 130. The reg­
istrars of voters in Louisiana are not personally in­
terested in a decree which enjoins them from enforc­
ing certain provisions of State law. They have no 
“ right”  to enforce particular laws which are declared 
invalid. Nor is it inconsistent with equity and good 
conscience to invalidate a State law in a proceeding- 
defended by the State itself. Indeed, if  every agent 
who is bound by a decree need be joined as a defend­
ant, there would be no need for Rule 65(d), F. R. Civ. 
Proc., which states that “ | e] very order granting an 
injunction * * * is binding * * * upon parties to 
the action, their officers, agents, servants, employees 
and attorneys”  (emphasis added).

93 See the Brief for the United States in United States v. 
State o f Mississippi, No. 73, this Term, pp. 66-68.



54

The question of indispensability arises in suits 
against governmental officials only when the action is 
against a subordinate and the issue is whether his 
superior must be joined. Compare Ceballos v. 
Shaughnessy, 352 U.S. 599; Shaughnessy v. Pedreiro, 
349 U.S. 48. A  superior may have the right to de­
fend the actions of a subordinate under a program 
which it is the superior’s ultimate responsibility to 
administer. The subordinate’s only interest, on the 
other hand, is to do what his superior commands. 
Since the State and the State Board of Registration 
are parties to this suit, and have the opportunity to 
defend their interests, the subordinate’s rights are in 
no way aifected. While the registrars would have 
been proper parties, they are not indispensable.

I I

THE LOUISIANA CONSTITUTIONAL AND STATUTORY PROVI­
SIONS CONDITIONING REGISTRATION AS A VOTER ON THE
a p p l i c a n t ' s  a b il it y  to  " u n d e r s t a n d  a n d  in t e r p r e t "
ANY SECTION OF THE STATE OR FEDERAL CONSTITUTIONS 
CONTRAVENES THE FIFTEENTH AMENDMENT AND 42 
U.S.C. 1971

The central issue in this case is the constitutionality 
of the Louisiana "understanding and interpretation’ ’ 
test for voter registration, now embodied in Section 
1(d) of Article V III  of the State Constitution and 
implementing legislation (supra, pp. 2-3). The court 
below struck it down on the ground that, in purpose 
and effect, the test is an instrument of racial dis­
crimination. That ruling was the predicate for the 
further, injunction prohibiting (subject to prescribed 
conditions) the use of a new voting test—the so-



55

called “ citizenship”  test—in those 21 parishes of the 
State where the evidence showed that the old inter­
pretation test had been employed (see Point III , 
infra, pp. 76-80).

The provision in question requires of every appli­
cant for registration as a voter (and no one may vote 
without first being registered)94 95 that he “be able to 
understand and give a reasonable interpretation of 
any section of either [the State] Constitution [or the 
federal Constitution].”  So reads the Louisiana Con­
stitution today (Art. V III, § l ( d ) ,  supra, p. 2), and 
so it has read, in substance, since 1921 (former Art. 
V III , § § l ( c )  and 1(d), Appendix B, infra, pp. 
87-90).96 Nothing in the implementing legislation 
elucidates the constitutional text (see La. R.S. 18: 
35-36, supra, p. 3).96 The law nowhere specifies how

94 La. Const., Art. V III, § l ( b ) ;  La. R.S. 18: 581-582.
95 W e hare already noted that, until 1960 (when literacy was 

made a qualification for all future registrants), the State Con­
stitution and statutes separately announced the qualifications 
applicable to literate and illiterate voters, although the require­
ments (except proof o f literary) were much the same for both 
classes, including, in each case, a constitutional interpretation 
test (supra, pp. 18-20). The only relevant textual difference 
was the word “ understand,” originally confined to the pro­
vision for illiterates. A t all times since 1921 every voter has 
been (at least nominally) required to “be. able to * * * give 
a reasonable interpretation” of any portion of the federal or 
State Constitutions. See the comparative text, of the pertinent 
Louisiana constitutional provisions reproduced in Appendix B, 
infra, pp. 87-90.

96 The cited statutes merely track the pertinent language of 
former subsections (c) and (d) o f Section 1 of Article V III  
o f the State Constitution. Though not revised in 1960 when 
the Constitution was amended, the statutory provisions must 
presumably now be read consistently with the new organic law.



56

the voting test shall be administered, thus leaving it 
to local registrars (at least in the absence of clear 
instructions from the State Board) 97 to determine for 
themselves, in each case, whether to examine an appli­
cant formally and, if  so, what procedure to follow 
and how to judge the response. The evidence is that 
the applicable constitutional and statutory provisions 
announcing the interpretation test have always been 
treated as merely permissive, allowing each registrar 
to use it or not, as he chose, and that the test was, in 
fact, generally waived for three decades throughout 
the State and never administered in some communities. 
It was shown that, when used, the test procedures 
varied widely, from year to year, from place to place 
and from applicant to applicant. The overwhelming 
proof shows, however, that, notwithstanding the dis­
parities, a common thread of racial discrimination 
runs through the practices. Conformably to the 
original plan, the inherent flexibility of the con­
stitutional interpretation test, combined with the 
uneanalized discretion vested in local registrars, has 
invited a “ discriminating” application, characterized 
by selective enforcement and, where necessary, the 
use of a double standard—all geared to the effective 
disfranchisement of a substantial portion of the 
adult Negro population.

Such is the scheme revealed by the present record. 
The ingredients are a vague subjective test for which 
the law neither defines the substantive standard nor 
fixes the applicable procedures—-in short, a broad

97 As we have noted in the Statement (supra, p. 28), no such 
instructions bearing on the interpretation test were issued.



57

license for discrimination-—and a selective and un­
even, but consistently discriminatory, course o f ad­
ministration. The result is an inseparable whole— 
part textual law, part layers of gloss accreted by long 
practice—bonded together by the common understand­
ing of lawmakers and administrators for four decades. 
In the circumstances, it was appropriate to enjoin not 
only the deviations of individual registrars, but also 
to invalidate the underlying laws which, in the pre­
vailing climate of public and private pressures, almost 
unavoidably breed those practices-—and thus to extir­
pate root and branch the long-flourishing system of 
discrimination.

The governing principles have been fully discussed 
in the brief for the United States in the companion 
case of United States v. Mississippi, No. 73 (pp. 81- 
89), and need not be repeated here. It is enough to 
recall the familiar doctrine that no law may stand 
which invests an administrator with uncanalized dis­
cretion to grant or deny fundamental rights,98 and 
also the obvious corollary that such laws are all the 
more vulnerable when they are shown in actual opera­
tion to have worked gross discrimination.99 It re­

98 To the cases cited in our Mississippi brief in support of 
this proposition, the following decisions of this Court may ap­
propriately be added: Joseph Burstyn, Inc. v. Wilson, 343 TT.S. 
495; Gelling v. Texas, 343 IT.S. 960; Superior Films, Inc. v. 
Department o f Education, 346 IT.S. 587; Kunz v. New York , 
340 U.S. 290; Aptheker v. Secretary o f State, 378 U.S. 500, 514.

99 For the proposition that “ in passing upon constitutional 
questions the court has regard to substance and not to mere 
matters o f form, * * * in accordance with familiar principles, 
the statute must be tested by its operation and effect,”  we 
should add the decisions in Near v. Minnesota, 283 U.S. 697,

755—226— 64 5



58

mains only to show in what respects the Louisiana 
voting provisions, like those of Mississippi, are po­
tential instruments of discrimination and how they 
have, in fact, been used to that end.

A . D IS C R IM IN A T O R Y  P O T E N T IA L  OP T H E  L O U IS IA N A  C O N ST IT U T IO N A L  

IN T E R P R E T A T IO N  TEST

It is impossible to approach the present constitu­
tional interpretation test without noticing that it

708, and Griffin v. Illinois, 351 U.S. 12, 17, n. 11. Also rele­
vant is the ruling in Watkins v. United States, 354 U.S. 178, 
202-203, where vagueness was imported into the language of 
an authorizing resolution o f the House Un-American Activities 
Committee by a fifteen-year chain o f events in the committee’s 
history. This Court combined “ the language o f the resolution 
with the construction it [had] been given.” Id. at 203.

The following statements by the Court or individual Justices 
should be noted in connection with Yiek Wo v. Hopkins, 118 
U.S. 356:

Mr. Justice Holmes, dissenting, in Bailey v. Alabama, 219 
U.S. 219, 246:

“ Neither public document nor evidence discloses a law 
which by its administration is ma.de something different 
from what it appears on its face * * * Yick Wo v. H op­
kins, 118 U.S. 356 does not apply” (emphasis added).

Mr. Justice Douglas, dissenting, in Snowden v. Hughes, 321 
U.S. 1, 18-19:

“ I f  the law is ‘applied and administered by public
authority with an evil eye and an unequal hand, so as prac­
tically to make unjust and illegal discriminations between 
persons in similar circumstances’ {T ick W o v. Hopkins, 118 
U.S. 356, 373-374), it is the same as if  the invidious dis­
crimination xcere incorporated in the law Uself' (emphasis 
added).

Mr. Justice Black, for the Court, in Kotch  v. Pilot Commission­
ers, 330 U.S. 552, 557:

“ * * * it made no difference that under the law as writ­
ten Yick W o would have enjoyed the same protection as 
all others. Its unequal application to Yick W o was 
enough to condemn it. But Yick W o’s case, as other cases



59

copies similar provisions adopted for avowedly dis­
criminatory purposes in Mississippi,100 once rejected 
by Louisiana as an effective, but less than forthright, 
means of barring Negroes from the franchise (see 
Statement, supra, p. 13), and that it was later mir­
rored in the racially motivated Boswell Amendment 
of Alabama.101 Nor can we properly ignore the indi­
cations that Louisiana resorted to the “understanding 
clause” as a substitute for the patently discriminatory 
“grandfather clause” when this Court outlawed the 
latter (see Statement, supra, pp. 16-18). Those are 
strong reasons for doubting the legitimacy of the ob­
jectives which the test is meant to further. But we do

have demonstrated, was tested by the language of the law 
there considered and the administration there shown” (em­
phasis added).

Mr. Justice Rutledge, dissenting, in the same case, 330 U.S. 
at 566-567:

“ The case therefore falls squarely within the ruling in 
Tick Wo v. Hopkins, 118 U.S. 356 [footnote omitted], 
* * * in the fact that unconstitutional administration o f a 
statute otherwise valid on its face incurs the same con­
demnation as i f  the statute had incorporated the discrim­
ination in terms” (emphasis added).

See, also, Austin v. Tennessee, 179 U.S. 343, 349-350; Atchi­
son, Topeka and Santa Fe Railroad Co. v. Matthews, 174 
U.S. 96, 105.

100 See the Brief for the United States in United States v. 
Mississippi, No. 73, this Term, pp. 10-15. Also noteworthy is 
the South Carolina precedent. In 1895 that State adopted, a 
provision granting a permanent voting license to illiterates who, 
in the ensuing three years, could “ understand and explain” any 
section o f the State Constitution, but requiring all subsequent 
registrants to meet a literacy or property qualification. S.C. 
Const. 1895, Art. II , § 4 (c) (d ). Presumably the purpose was 
to permit white illiterates to qualify for life.

101 See Davis v. SchneU, 81 F. Supp. 872, 878-881 (S.D. Ala.), 
affirmed, 336 U.S. 933.

755- 226— 64- -6



not rest our case on impermissible purpose. The chal­
lenged provisions, on their face and as applied, are 
vulnerable on other counts.

1. Even if nothing were known of its parentage, 
one might ask whether the Louisiana constitutional 
interpretation test can be said to have any reasonable 
relation to voting qualification. To be sure, the States 
enjoy a wide latitude in determining the conditions 
upon which the franchise shall be exercised. See 
Lassiter v. Northampton County Board of Elections, 
360 U.S. 45, 50-53. Yet, there are limits. Plainly, no 
State can confine the right to vote for State-wide 
officers to residents of the countryside. Cf. Gray v. 
Sanders, 372 U.S. 368. Likewise, it would seem clear 
that there can be no capricious distinction made on 
the basis of physical traits or other characteristics 
wholly unconnected with the ability to participate 
meaningfully in the political process—regardless of 
whether the excluded class is large or small. Nor do 
we suppose that, today, the franchise can be restricted 
to persons over 60, to lawyers, to farmers, to third- 
generation residents of the State, or to any other 
peculiar minority. Here, as elsewhere, the Constitu­
tion requires a rational nexus between the rule adopted 
and a legitimate objective, and, when this most funda­
mental right is involved—whatever “ the conception 
* * * of a bygone day”—it is surely axiomatic in our 
present democracy that no classification is reasonable 
which makes arbitrary distinctions with respect to the 
franchise. Cf. Gray v. Sanders, supra, 372 U.S. at

60



61

376-377,'n. 8, 380; We sherry v. Sanders, 376 T.S. 1, 
7, 18.102

At first blush, the Louisiana “ understanding”  clause 
may appear to announce a mere literacy test, confined 
(to avoid undue vagueness) to two appropriately po­
litical basic texts, the federal and State Constitutions. 
That, however, would be a false appraisal. Louisiana 
does indeed have literacy tests: one is the application 
form for registration which the prospective voter 
must complete unaided; the other is embodied in a 
requirement that the applicant read, and write from 
dictation, a portion of the Preamble to the Constitu­
tion of the United States. See La. Const., Art. V III, 
§ 1 (c), as amended (Appendix B., infra, pp. 87-90). 
The provision in suit is of a very different character. 
It is in no sense a test of literacy. On the contrary, 
as we have already noted (Statement, supra, pp. 
18-20), the clause of the State Constitution which to­
day announces the interpretation test was, for four 
decades, expressly applicable to those who were “ not

102 In providing that Representatives shall be “ chosen . . . 
by the People,” and defining that mass as including all those 
who “ have the Qualifications requisite for Electors o f the most 
numerous Branch o f the State Legislature,” (Art. I, § 2 ) ,  the 
Constitution necessarily assumes that some State elections are 
determined by “ popular vote.” Madison’s boast that federal 
Representatives would be chosen by “ the great body o f the 
people o f the United States” ( The Federalist, No. 57, quoted in 
Wesberry, supra, 376 U.S. at 18), suggests that most “ people” 
(presumably then understood as free white adult males) would 
participate in the election o f at least one house of the State 
legislature. But, however that may be, as Gray v. Sanders 
makes clear, the enactment o f the Fourteenth, Fifteenth, Seven­
teenth and Nineteenth Amendments has expanded the consti­
tutional view of popular government.



62

able to read or write,”  and, since 1960, operates only 
with respect to applicants who have already demon­
strated their literacy.103 104 It remains to consider 
whether the requirement in question may be viewed 
as a test of basic civics (assuming every voter may be 
required to know something of the powers and re­
sponsibilities of those he elects) or a simple test of 
verbal comprehension (assuming the voter should be 
able to understand the views of the several candidates 
and of those who comment on them).

Doubtless, in the best of all possible worlds, every 
voter would be able to understand every part of the 
organic law which established and defined his govern­
ment. But in that Utopia, we may assume, the laws 
would be akin to those of Brobdingnag:

No law of that country must exceed in words 
the number of letters in their alphabet, which 
consists only of twenty-two. But indeed few 
of them extend even to that length. They are 
expressed in the most plain and simple terms, 
wherein those people are not mercurial enough 
to discover above one interpretation; and to 
write a comment upon any law is a capital

* 104crime.

103 So much is suggested by the inclusion o f the constitutional 
interpretation test in subsection (d) of the first section of 
Article V II I  o f the State Constitution (captioned “ Character 
and understanding” ), after the literacy tests already noted 
which are embodied in subsection (c) (captioned “ Character 
and literacy” ). See Appendix B, infra, pp. 87-90. That read­
ing is confirmed in the instructions of the State Board of 
Registration (e.g., R. 803) and the actual practice o f registrars.

104 Swift, Gulliver's Travels (Universal Library ed.), p. 132.



63

That is not the world faced by the Louisiana regis­
trant. Even the Constitution o f the United States— 
by far the easier of the two examination texts—is not 
without its difficulties for the uninitiated. Putting 
to one side such elusive concepts as “ due process” in 
the Fifth and Fourteenth Amendments, “unreason­
able searches”  in the Fourth and “ taking”  in the 
Just Compensation Clause of the Fifth, which have 
been subject to varying interpretations here, and 
archaisms like “ letters of marque and reprisal”  (Art. 
I, § 8, cl. 11; § 10, cl. 1), “ capitation”  (Art. I, § 9, el. 
4), “ bill of attainder”  (Art. I, § 9, cl. 3; § 10, cl. 1) and 
“presentment” (Amend. V ), which are obscure to. the 
layman, there are provisions of the federal constitu­
tion which do not yield their meaning on first reading. 
We need only cite the clauses defining the scope and 
distribution of the judicial power (Art. I l l ,  § 2, els.
1 and 2), the provisions relating to the electoral col­
lege (Art. II, §1, cl. 3; Amend. X I I ) ,  and the two 
“ privileges and immunities” clauses (Art. IV, § 2, cl. 
1; Amend. X IV , §1 ). Yet, those difficulties are as 
nothing compared with the obstacles which the Lou- ’ 
isiana Constitution presents. Some notion of the j 
detailed complexity of that document is revealed by 
its length, more than 300 pages in the official print, 
without commentary or annotations. It is no exag­
geration to say that most of the provisions of Articles j 
X  ( “ Revenue and Taxation” ), X IV  (“Parochial and 
Municipal Affairs” ), X V I (“ Levees” ), and X V III  
( “ Pensions” ) —which together occupy some hundred 
printed pages—are utterly bewildering to all but the 
tax specialist, the financial expert or the lawyer.



64

There are also disarmingly short, but cryptic, provi­
sions. Thus, Section. 18 of Article X I X  reads in 
whole: “ The exercise of the police power of the State 
shall never be abridged.” And, without further ex­
planation, Section 8 of Article Y  provides: “ The Lieu­
tenant Governor shall be ex-officio President of the 
Senate, but shall have a casting vote only therein.” 

The plain fact is that an ability to comprehend all 
the provisions of the federal and State Constitutions 
can be expected of no man not specially trained in 
the art. It is doubtful whether most elected State 
officers are equal to the task—nor need they be, most 
of them having only a limited sphere of action, and, 
for that, the benefit of legal counsel. Indeed, several 
registrars of voters candidly confessed that they did 
not understand some sections of the State Constitu­
tion (R. 405, 468, 517, 596). Certainly, no such abil­
ity is necessary to know what the candidates for po­
litical office are saying: none would be so rash as to 
appeal to the electorate in the detailed terminology 
o f the Louisiana Constitution. The suggestion that 
the requirement in suit is a test of “ native intelli­
gence,” which “book learning” cannot affect (R. 650- 
651, 795), is patently false. The short of it is that, if 
taken seriously, the constitutional interpretation test 
would restrict the franchise in Louisiana to the legal 
fraternity, and probably not all of that small class. 
Plainly, no such intent can be ascribed to the drafters 
of the Louisiana Constitution. As one commentator 
has put it, “ i f  any test of understanding were applied 
at all to any substantial number of citizens of status, 
the registrars would be hanged to the nearest lamp



65

post and no grand jury could be found that would 
return a true bill.” Key, Southern Politics (1949), 
p. 577.

Because it imposes an impossible standard, so obvi­
ously inappropriate as a reasonable qualification for 
voting, the test is inherently suspect. A  closer look 
at the mechanics of its administration will show how 
it invites discrimination.

2. The constitutional interpretation test is inher­
ently vague. As Governor Foster of Louisiana recog­
nized in 1898 when his State rejected the example of 
Mississippi and South Carolina, such provisions are 
not “ certain and fixed” ; they leave “ the admission of 
the applicant to the exercise of the electoral franchise 
largely to the arbitrary discretion of the officers ad­
ministering the law.” 105 The reasons are many.

First, the standard itself is ill-defined. What is an 
ability to “ understand”  and “ interpret”  a constitu­
tional section? Those terms are themselves suscep­
tible of widely differing interpretations. Nor is the 
measure of comprehension expected made clearer by 
specifying that a “ reasonable”  interpretation is re­
quired. The vagaries of that word are obvious.106 
Cf. Cline v. Frink Fairy Co., 274 U.S. 445; United 
States v. Cohen Grocery Co., 255 U.S. 81.

Second, the several examination texts vary greatly 
in length and difficulty. The requirement is that the

106 Louisiana Senate Journal, 1898, p. 33. See Statement, 
supra, p. 15.

106 As we have already noted, the vague language o f the 
Louisiana Constitution is not elucidated by the implementing 
legislation, which merely tracts the constitutional text. See 
supra, pp. 55-56.



66

registrant be able to interpret “ any section”  of the 
federal or State Constitutions. Practical considera­
tions of course dictate that, as to each applicant, one 
or a very limited number of provisions be used in 
testing. There are 443 separate sections in the Lou­
isiana Constitution and 56 in the Constitution of the 
United States. We have already noticed that each 
contains very complex or obscure provisions; but 
there are also short and simple sections in both instru­
ments. Even if the test section is chosen “ at random”  
(as is sometimes claimed, see, e.g., E. 517), a very 
uneven treatment of voters inevitably results. If, on 
the other hand, the registrar selects the constitutional 
section, the opportunities for discrimination are 
enormous. The potentialities are well stated by a 
delegate to the Louisiana Constitutional Convention 
of 1898:

This “understanding clause”  fixes no standard 
of qualification for the franchise. It is left to 
the discretion of the registration officer to 
select any one of the numerous articles o f the 
Constitution as the test of the voter’s under­
standing; and there are, therefore, as many 
different tests as there are articles in the Con­
stitution. This arbitrary power, lodged with 
the registration officer, practically places his 
decision beyond the pale of judicial review; 
and he can enfranchise or disfranchise voters 
at his own sweet will and pleasure without let 

or hindrance. * * * 107

107Kernan, The Constitutional Convention o f 1898 and its 
W ork, Proceedings o f the Louisiana Bar Association for 1899, 
pp. 54,59-60.



67

Third, inherently vague and varied as it is, nothing 
is done to standardize the procedure for administer­
ing the test. On the contrary, registrars are given no 
instruction by the Louisiana Constitution or statutes 
(or even by the central State Board of Registra­
tion) ; 108 each of them is left to devise his own prac­
tice, and to vary it or depart from it as the occasion 
may counsel him. Indeed, as we have already noted, 
while the law would seem to be mandatory, the pro­
visions embodying the constitutional interpretation 
test have, in practice, always been treated as merely 
permissive, to be invoked by registrars, or not, as they 
choose.109 So, also, the administrative practice has 
always ignored the apparent distinction in the law 
between giving the applicant a written text to read 
(under former subsection (c) of Section 1 of Article 
V III  of the Constitution, once applicable to literate 
applicants and now repealed) and reading him a sec­
tion (under subsection (d ), once applicable to illiter­

108 See statement, supra, p. 28.
109 In some instances, registrars have justified their failure 

to actually test an applicant on the ground that the relevant 
provisions of law only require that a voter “ be able” to under­
stand and interpret a constitutional section; hence, if the official 
personally knew the registrant and his obvious ability to meet 
the requirement, a formal examination was unnecessary (e.g., 
K. 350, 511). The vice o f that practice under a rule o f white 
registrars is obvious. Compare the “ voucher” system (requir­
ing an applicant to be identified by two registered voters) once 
used in Madison Parish. See United States v. Ward, 222 F. 
Supp. 617 (W.D. La.). Compare the grand jury selection 
procedure once followed in New Orleans, noted in Eubanks v. 
Louisiana, 356 TJ.S. 584, 586, and the “ alumni recommendation” 
rule practiced at the University o f Mississippi, annulled in 
Meredith v. Fair, 298 F. 2d 696*, 701-702; id., 305 F. 2d 343, 
352-353.



6 8

ates, and now generally applicable) ; registrars have 
in fact done as they wished on that score—and with­
out reproof. But, in any event, the registrar is other­
wise wholly unconfined as to procedure.

Thus, so far as the law is concerned, each registrar 
may determine what test section to use, by himself 
opening, or allowing the applicant to open, a volume 
containing either or both constitutions “ at random” ; 
or he may use “ test cards,” selecting the card for each 
registrant, or leaving it to chance; or he may, with­
out further ado, unilaterally determine the test sec­
tion for each applicant; or, finally, he may allow the 
prospective voter to pick his own text. The registrar 
is free to use the same section on every applicant, or 
on every member of a given class; or he may vary the 
texts with each registrant. Nor is the registrar lim­
ited to a single test section: he may examine any ap­
plicant on any number of constitutional provisions. 
So, also, the law leaves it to each registrar whether to 
require a written or an oral interpretation. And, in 
all this, the registrar is free to ignore the sharp de­
grees of difficulty between one text and another, as 
well as the greater or lesser burden imposed by one 
procedure as compared to another.

Fourth, and perhaps most important, the govern­
ing provisions vest full discretion in the registrar to 
“ grade”  the interpretation test. Under a system in 
which the only standards are vague and subjective, 
which eschews mandatory or uniform procedure,



69

which permits—indeed suggests110—a wholly oral ad­
ministration of the test, and requires no written rec­
ord to be made or kept, the power conferred is un­
confined. As one Louisianian observed at the turn 
of the century, in the circumstances the prerogative 
o f judging “ practically places [the registrar’s] deci­
sion beyond the pale of judicial review, [allowing 
him to] enfranchise or disfranchise voters at his own 
sweet will and pleasure without let or hindrance.”  111

3. We have outlined the opportunities for discrim­
ination which the Louisiana constitutional interpre­
tation test offers on the face o f the provisions which 
establish it as a qualification for voters. Perhaps, “ [i] t 
is enough that a vague and broad statute lends itself 
to selective enforcement against unpopular causes.” 
NAACP  v. Button, 371 U.S. 415, 435. But it is not 
inappropriate to make an appraisal in the particular 
context within which the system operates. The .reali­
ties confirm that the image of registrars using the 
test as a “ device [for] racial discrimination”  (Las­
siter v. Northampton County Board of Elections, supra, 
360 U.S. at 53) or “ a cloak to discriminate against one 
class or group”  (Gray v. Sanders, supra, 372 U.S. at 
379) is “ neither speculative nor remote.”  Bates v.

110 As already noted, the present constitutional provision 
literally requires the applicant to “ give”  (not “ write” ) an in­
terpretation o f a section “ when read to Mm by the registrar.” 
La. Const., Art, V I I I , § l ( d ) .  Originally, this language 
plainly contemplated a wholly oral test, since it was expressly 
applicable to those who could not read or write. Presumably, 
the words carry the same implication today, although they 
are now part, o f a provision applicable to literates.

111 See note 107, supra.



70

Little Rock, 361 U.S. 516, 524. Before noticing the 
actual practice, we pause to consider the racial cli­
mate of Louisiana, unavoidably a factor in the ad­
ministration of the interpretation test. The “ pres­
sures”  which a “ political dominant white commu­
nity”  can exert on local officials cannot be ignored. 
NAACP  v. Alabama, 357 U.S. 449, 463; Bates v. 
Little Rock, supra, 361 U.S. at 524; Louisiana v. 
NAACP, 366 U.S. 293, 296; NAACP  v. Button, su­
pra, 371 U.S. at 435-436; Gibson v. Florida, 372 U.S. 
539, 548, at n. 3; Anderson v. Martin, 375 U.S. 399, 
403; cf. Shelton v. Tucker, 364 U.S. 479, 487.

We need not elaborate the general pattern of racial 
discrimination prevailing in Louisiana since the con­
stitutional interpretation test came into being. Those 
practices are sufficiently revealed in eases which have 
reached this Court in the last forty years. They 
involve discrimination against the Negro in jury selec­
tion (Pierre v. Louisiana, 306 U.S. 354; Eubanks v. 
Louisiana, 356 U.S. 584; Poret v. Sigler, 361 U.S. 
375), housing {Harmon v. Tyler, 273 U.S. 668), edu­
cation {Board of Supervisors v. Wilson, 340 U.S. 909; 
Bush v. Orleans Parish School Board, 365 U.S. 569, 
366 U.S. 212, 367 U.S. 907, 908, 368 U.S. 11; St. Helena 
Parish School Board v. Hall, 368 U.S. 515), trans­
portation facilities {Morrison v. Davis, 252 P. 2d 102 
(C.A. 5), certiorari denied, 356 U.S. 968; Taylor v. 
Louisiana, 370 U.S. 154), entertainment {State Ath­
letic Commission v. Dorsey, 359 U.S. 533), recreation 
{New Orleans City Park Improvement Association v. 
Detiege, 358 U.S. 54; City of Neiv Orleans v. Barthe, 
376 U.S. 189), public restaurants {Garner v. Louisiana,



71

368 U.S. 157; Lombard v. Louisiana, 373 U.S. 267), 
and other activities ( e.g., Louisiana v. NAA CP, 366 
U.S. 293).112 Not surprisingly, the same attitudes are 
reflected in the several phases of the electoral process. 
United States v. Thom,as, 362 U.S. 58; Anderson v. 
Martin, 375 U.S. 399. See, also, Hannah v. Larche, 363 
U.S. 420. ------

In this atmosphere, it would be wholly unreal to 
expect native white registrars 113 to remain altogether 
color-blind. Whether consciously or unconsciously, 
they obviously have been affected by the “ tradition”  
which influences “ the general thinking of the com­
munity.”  Cf. Eubanks v. Louisiana, supra, 356 U.S. 
at 588. Encouraged by a broad license and a standard 
so vague that discrimination could pass undetected, 
it is difficult to suppose that registrars would not suc­
cumb to the invitation. Indeed, the administrators of 
the interpretation test might well feel themselves “ en­
trusted”  with the mission of preserving “white su­
premacy” ; in 1,898 opponents thought the adoption of 
an interpretation clause was tantamount to “ sending

112 For a more complete description o f Louisiana’s racially 
discriminatory attitudes, see the concurring opinion of Mr. Jus­
tice Douglas in Garner v. Louisiana, supra, 368 U.S. at 179- 
181. and pp. (55-71 of the Brief for the United States in Lom­
bard v. Louisiana, supra, No. 58, October Term, 1962.

113 A ll the Louisiana registrars were white when this suit was 
tried below (R. 622) and it is a fair inference that the same 
situation has prevailed at least since 1898.



72

word to the registrars”  to bar Negroes from the 
franchise (R. 114).114

W e note additionally that registrars were made 
removable “ at will”  by the central State Board. See 
La. Const., Art. V III , § 18. Thus, beholden to the 
local parish officials for their appointment (and re­
appointment) and serving at the pleasure of the high­
est State officers, they can be made keenly aware of 
public opinion at all levels.115 116 Nor have such pres­
sures been lacking. The Louisiana registrars have not 
been left entirely to their own instincts. As the State­
ment details (supra, pp. 21-28), in recent years, en­
couragement, suggestions, and even threats, from offi­
cial State committees and other groups, have coun­
seled registrars to make effective use of the 
discriminatory instrument placed in their hands.
B . D IS C R IM IN A T O R Y  PR AC TIC E  U N D E R  T H E  L O U IS IA N A  C O N ST IT U ­

T IO N A L  IN T E R P R E T A T IO N  TEST

We have examined the constitutional interpreta­
tion test and its potential for discrimination. It  re­

114 See, e.g., the testimony of Mrs. Jones, the registrar o f 
voters for Lincoln Parish between 1940 and 1961 (R. 510) :

Well, when the people of Lincoln Parish gave me this 
position they—I accepted it and was put under bond. 
They really thought I  could handle it, or they wouldn’t 
have let me have been the registrar. So I have tried to do 
exactly what the people were expecting me to do, and that 
is follow  that law. So that’s the way I ’ve done. I  haven’t 
ever been reprimanded or nothing. How did you get the 
idea I  had?

The ambiguous statement that she felt obliged “ to follow the 
law”  is illumined by Mrs. Jones’ later testimony that she 
ignored the interpretation for years because “ it just wasn’t 
necessary”  until “ [t]hey had the colored lined up there”  (B,. 
511).

116 See note 92, supra.



mains only to recapitulate the results, already fully 
reported in the Statement, supra, pp. 27-43.

The history of the practical administration of the 
interpretation test fully confirms the supposition that 
it was never meant to be actually used, except when 
and where necessary to keep Negro registration with­
in “ tolerable limits,”  but that, if  applied, it would 
work effectively to that end—and without leaving too 
obvious traces. Thus it is that the test lay dormant 
until the mid-1950’s,116 when the Negro, now legally 
eligible to participate in primaries, awakened from his 
enforced “ apathy”  and began to demand a voice in 
political affairs. Then, resurrected, the interpreta­
tion clause proved its versatility. As the Statement 
details, it was set up as a barrier to new registra­
tions and was invoked as a ground for removing from 
the rolls some of those already registered who had 
not taken it. The test was administered orally and 
in writing and every conceivable procedure was used 
in selecting texts for the examination. Help was 
sometimes given and sometimes withheld. And grad­
ing standards varied widely. 116

73

116 In Trudeau v. Barnes, 65 F. 2d 563 (C.A. 5), certiorari 
denied, 290 U.S. 659— decided in 1933— a Negro brought an 
action for damages against the registrar o f voters for one of 
the four largest parishes (Orleans), alleging that he had been 
refused registration “ in obedience to”  Article 8, § 1 of the 1921 
Constitution, which then required that an applicant be able to 
read and give a reasonable interpretation o f any clause in the 
Constitution o f Louisiana or o f the United States. Every indi­
cation is, however, that the interpretation test was not generally 
used in New Orleans or elsewhere at that time. Clearly, the 
test has not been administered in Orleans Parish during the 
last decade.



While all the disparities cannot be laid at the door 
of racial discrimination, and doubtless slighter, or 
subtler, differences necessarily passed undetected, there 
is ample evidence—in most instances supported by the 
specific findings of district courts—that the elastic 
standards of the constitutional interpretation test 
were widely used to defeat Negro registration. 
Specifically, as the Statement details {supra, pp. 
31-A2), there has been discrimination in the selection 
of sections {e.g., United States v. Fox, 211 F. Supp. 
25, 33 (E.D. La.), affirmed, 334 F. 2d 449 (C.A. 5 )) ; 
the rejection of highly educated Negroes, often for 
frivolous reasons, and the. acceptance of illiterate 
whites {e.g., United States v. Clement, 231 F. Supp. 
913, 915 (W .B. L a .) ) ; the assistance on the test given 
to whites but withheld from Negroes ( United States 
v. Fox, supra) ; the employment of the test, in most of 
the parishes where it was used, to keep off the voter 
registration rolls Negroes who had been discrimina- 
torily purged pursuant to the exhortations of Rainach 
and Shaw, and, in parishes such as Bienville, the 
adoption, immediately after the purge, of permanent 
registration to seal the unpurged whites on the rolls 
{United States v. Association of Citizens Councils 
of Louisiana, 196 F. Supp. 908, 910 (W.D. La.)) ; in­
deed, even the administration of the test to Negroes 
but not to whites, United States v. Clement, supra; 
United States v. Wilder, 222 F. Supp. 749, 752 ( W . i ). 
La.).117 Nor can there be any doubt of the inhibiting

117 See, also, Report o f the United States Commission on Civil 
Rights (1961), Yol. 1, Chapter 3 ( “ The Louisiana Story” ), 
pp. 58-66, 135-137; The 50 States Report (submitted to the 
Commission on Civil Eights by the State Advisory Commit­

74,



75

effect of these discriminatory practices on those who 
would otherwise have tried to register. See the opin­
ion below, R. 135, 139.

The results are eloquent testimony. One way and 
another, State-wide Negro registration has been “ sta­
bilized”  (to borrow the term of an official report)118 
at less than one-third of the presumptively eligible 
Negro adults— as compared to a 77% rate of registra­
tion for whites. See Appendix C. ( infra, p. 91). 
Of course, the discriminatory operation of the inter­
pretation test is not alone responsible. Rut, from 
1956 (when the Negro electorate for the first and only 
time reached over 15% of the total registration and 
was viewed as alarming)119 until mid-1962 (when the 
test was tentatively abandoned, after this suit was 
filed), it is clear that the selective enforcement of the 
understanding clause was a major factor in reducing 
and containing Negro registration. One need only 
notice the dramatic drop—to less than half the orig­
inal figure and less than one-tenth of those potentially 
eligible—in the number of Negroes on the voting rolls 
in the 21 parishes where the interpretation test was 
used during that period. See Appendix D. (infra, p. 
93).

In sum, the interpretation test in practice worked 
precisely as it was always understood it would. To 
be sure, some registrars took slight liberties with the

tees) (1961), pp. 216, 220; Hearings Before the United States 
Commission on Civil Rights, New Orleans, La., 1960-1961.

118 See the December 14, 1960, Report of the Sub-Committee 
on Registration of the State Sovereignty Commission, R. 805- 
815, at 809, 811.

119 See R. 196, 198-199, 790.
755-226— 04------7



76

provisions of the State Constitution. But most of 
what was done was in conformity with the letter and 
the spirit of the law, under sanction from the highest 
State officials. It was, therefore, both necessary and 
proper that the State, and through it all State agents, 
be permanently enjoined from further implementing 
provisions which breed the gross discrimination re­
flected in this record.

I l l
THE COURT BELOW PROPERLY ENJOINED APPLICATION OP 

THE NEW “ CITIZENSHIP TEST”  IN THE PARISHES 
WHERE THE INTERPRETATION TEST WAS SHOWN TO 
HAVE BEEN USED UNTIL THERE IS A GENERAL RE-REG­
ISTRATION OP ALL VOTERS IN THE PARISH

We have already noticed that in August, 1962— 
while the present suit was pending—the State Board 
of Registration promulgated, and required registrars 
throughout the State to administer, a new “ multiple- 
choice”  “ citizenship”  test as a prerequisite to registra­
tion (Statement, supra, pp. 43-45). Whatever the 
independent merits of the requirement (which the 
court below did not reach), it plainly erects a sub­
stantial obstacle to qualification for future applicants. 
Thus, where Negroes have been discriminatorily 
barred from registration, the new test—which applies 
only prospectively—would “ freeze in” the effects of 
past discrimination. On this ground, the court below 
conditionally enjoined the use of the new test in those 
21 parishes where the present record shows that the 
constitutional interpretation test was recently admin­
istered, until such time as there has been a general 
re-registration of all voters in the parish (or other



77

action effectively erasing the discriminatory effect of 
the interpretation test) (R. 82-83).

The order was plainly adapted to “ the necessities of 
the particular case.”  Hecht Co. v. Bowles, 321 U.S, 
321, 329; Porter v. Warner Co., 328 U.S. 395, 398. 
As we elaborated in our brief in the companion Mis­
sissippi case (pp. 92-94), the practical solution of re­
quiring a waiver of the law for all when some have 
been improperly exempted is supported by ample 
precedent, including, in closely analogous circum­
stances, this Court’s decisions in Guinn v. United 
States, 238 U.S. 347 and Lane v. Wilson, 307 U.S. 268, 
275-276.120 It was appropriately invoked here be­
cause no workable alternative would effectively uproot 
the discrimination o f the past.

Appellants seem to suggest (App. Br. 29, 31) that 
the effects of past “ inequities” can be cured by a 
purge of whites registered in violation of State law. 
But, assuming the appropriateness of an order direct­
ing such action in. some circumstances (see United 
States v. Atkins, 323 F. 2d 733 (C.A. 5)) ,  that rem­
edy is wholly inadequate here. In the first place, the 
removal of improperly registered whites would erase 
only one part of the discrimination; it would no noth­

120 The “ freezing” principle is expressly sanctioned by 42 
U.S.C. 1971(e) (Appendix A, infra, pp. 82-86). That provi­
sion requires voting referees, under stated circumstances, to 
issue voter certificates to applicants “ qualified under state law,” 
and then defines that standard to mean “qualified according to 
the laws, customs, or usages of the State,”  barring, however, 
“qualifications more stringent than those used * * * in quali­
fying persons other than those o f the race or color against 
which the pattern or practice o f discrimination was found 
to exist.”  See United States v. Duke, 332 F. 2d 759, 769 (C.A. 5).



78

ing for the Negro who was improperly rejected under 
the former standards and who must now re-apply un­
der more onerous conditions. At the least, the order 
must provide for the mandatory registration o f those 
who should have been accepted. But, in any event, 
an injunction adding and deleting names from the 
registration rolls does not meet the ease. It wholly 
ignores the rights of a substantial body of potentially 
eligible Negroes who were inhibited from applying121 
in the face of the prevailing discriminatory practices 
and the experience of others. Moreover, as a practi­
cal matter—the heavy burden involved and the inevi­
table delays to one side—no accurate list of illegally 
registered and illegally rejected applicants can be 
drawn. The necessary records are lacking.122 But,

121 This deterrent effect has been consistently noticed by the 
lower federal courts. See United States v. Manning, 215 F, 
Supp. 272, 288 (W.D. La.) ; United States v. Clement, 231 F. 
Supp. 913, 915 (W .D. L a .) ; United States v. F ox , 211 F. Supp. 
25, 32 (E.D. La.), affirmed, 334 F. 2d 449 (C.A. 5 ); United 
States v. Duke, 332 F. 2d 759, 763 (C .A ..5) (Mississippi inter­
pretation test).

Likewise, those once rejected are discouraged from making a 
second attempt. The following statements are illustrative. A  
Negro schoolteacher in Ouachita Parish (R. 751) :

I  haven’t been back for the simple reason that I  thought 
I interpreted it correctly the first time; * * * she said it 
wasn’t to her satisfaction * * * I could interpret some­
thing all day, and they would still say that it’s not to their 
satisfaction.

A  Negro dentist in Webster Parish (R. 689):
I  haven’t been in because I  had trouble before, and it’s 

embarrassing to go in, feeling that you’re qualified and all, 
and are turned down, it’s really embarrassing.

122 Unless the constitutional interpretation test has been both 
given and answered in writing (a rare instance.—see Statement, 
supra, p. 31), there is no way o f ascertaining from the registrar’s



79

in any event, there is an insuperable obstacle inherent 
in the interpretation test itself. As we have seen, the 
very vagueness of the constitutional provisions ob­
scures the applicable standards and, so far as State 
law is concerned, it is impossible to say that anyone 
was “ illegally”  accepted or rejected. On the con­
trary, in the light o f the administrative gloss, the dis­
crimination practiced was fully sanctioned by Loui­
siana law. In the circumstances, the only realistic de­
cree is one enjoining the interpretation test, as well as 
the imposition of any new requirement, unless every­
one is required to meet it.

It may be argued that the injunction against imple­
menting the new “ citizenship”  test is too narrow (be­
cause it is restricted to 21 parishes, whereas discrimi­
nation has not been confined to those areas), or too 
broad (because it affects parishes where the present 
record reveals the constitutional interpretation test 
was used, but does not affirmatively show that it was 
discriminatorily applied). The answer to the first 
objection is, of course, that the only subject of this 
suit is the constitutional interpretation test and the

records alone whether an applicant was improperly qualified or 
improperly rejected. In no event, is it possible to discern whether 
“ illegal” help was given. Moreover, in some o f the 21 parishes 
affected, the registrar’s practice was to administer the interpreta­
tion test first and make no record if  the applicant failed and was 
rejected on that ground. Accordingly, no list o f rejected appli­
cants for those parishes is readily available and claims of rejection 
might well be contested. See, e.g., R. 356, 362-363, 366-367 
(Rapides); 442, 448 (Brinville). Finally, whatever the recoids 
indicate, the “ purge” o f a registered voter presumably requires 
that he be joined in the action and offered an opportunity to 
defend.



80

voting discrimination which it engendered; in other 
proceedings, it may well he appropriate to extend the 
injunction to avoid “ freezing in”  the effects of other 
discriminatory practices. The second objection must 
yield to the finding—fully supported by the sta­
tistics 123—that the interpretation test, wherever used, 
inevitably inhibited Negro registration.

CONCLUSION

For the foregoing reasons, the judgment below 
should be affirmed.

Respectfully submitted.
A r c h ib a l d  C o x ,

Solicitor General.
B tjrke M a r s h a l l ,

Assistant Attorney General.
Louis F. Claiborne, 

Assistant to the Solicitor General.
H aro ld  H .  G r e e n e ,
D a v id  R u b in ,
L o u is  M . K a u d e r ,

Attorneys.
D e c e m b e r  1964.

128 See Appendix D, p. 93



A P P E N D IX  A

C o n s t it u t io n a l  a n d  St a t u t o r y  P r o v is io n s  I n v o l v e d  

Constitution of the United States:

ARTICLE VI

[Clause 2.] This Constitution, and the Laws 
of the United States which shall be made in 
Pursuance thereof; and all Treaties made, or 
which shall be made, under the Authority of the 
United States, shall be the supreme Law of the 
Land; and the Judges in every State shall be bound 
thereby, any Thing in the Constitution or Laws of 
any State to the Contrary notwithstanding.

5H s|e

AMENDMENT XV

Se c t io n  1. The right of citizens of the United 
States to vote shall not be denied or abridged 
by the United States or by any State on ac­
count of race, color, or previous condition of 
servitude.

Section 1971 of Title 42 of the United States Code:
(a) All citizens of the United States who are 

otherwise qualified by law to vote at any elec­
tion by the people in any State, Territory, 
district, county, city, parish, township, school 
district, municipality, or other territorial sub­
division, shall be entitled and allowed to vote 
at all such elections, without distinction of 
race, color, or previous condition of servitude; 
any constitution, law, custom, usage, or regula­
tion of any State or Territory, or by or under 
its authority, to the contrary notwithstanding. 

* * * * *
( 8 1 )



82

(c) [Supp. V] Whenever any person has en­
gaged or there are reasonable grounds to believe 
that any person is about to engage in any act or 
practice which would deprive any other person of 
any right or privilege secured by subsection (a) or 
(b) of this section, the Attorney General may 
institute for the United States, or in the name of 
the United States, a civil action or other proper 
proceeding for preventive relief, including an ap­
plication for a permanent or temporary injunction, 
restraining order, or other order. In any proceed­
ing hereunder the United States shall be liable for 
costs the same as a private person.

Whenever, in a proceeding instituted under this 
subsection any official of a State or subdivision 
thereof is alleged to have committed any act or 
practice constituting a deprivation of any right 
or privilege secured by subsection (a) of this 
section, the act or practice shall also be deemed 
that of the State and the State may be joined as a 
party defendant and, if, prior to the institution of 
such proceeding, such official has resigned or 
has been relieved of his office and no successor has 
assumed such office, the proceeding may be insti­
tuted against the State.

(d) The district courts of the United States 
shall have jurisdiction of proceedings instituted 
pursuant to this section and shall exercise the 
same without regard to whether the party ag­
grieved shall have exhausted any administrative 
or other remedies that may be provided by law.

(e) [Supp. V] In any proceeding instituted 
pursuant to subsection (c) of this section in the 
event the court finds that any person has been 
deprived on account of race or color of any right 
or privilege secured by subsection (a) of this 
section, the court shall upon request of the Attor­
ney General and after each party has been given 
notice and the opportunity to be heard make a 
finding whether such deprivation was or is pur­
suant to a pattern or practice. If the court 
finds such pattern or practice, any person of such 
race or color resident within the affected area



83

shall, for one year and thereafter until the court 
subsequently finds that such pattern or practice 
has ceased, be entitled, upon his application 
therefor, to an order declaring him qualified to 
vote, upon proof that at any election or elections
(1) he is qualified under State law to vote, and
(2) he has since such finding by the court been 
(a) deprived of or denied under color of law the 
opportunity to register to vote or otherwise to 
qualify to vote, or (b) found not qualified to vote 
by any person acting under color of law. Such 
order shall be effective as to any election held 
within the longest period for which such applicant 
could have been registered or otherwise qualified 
under State law at which the applicant’s quali­
fications would under State law entitle him to 
vote.

Notwithstanding any inconsistent provision of 
State law or the action of any State officer or 
court, an applicant so declared qualified to vote 
shall be permitted to vote in any such election. 
The Attorney General shall cause to be trans­
mitted certified copies of such order to the ap­
propriate election officers. The refusal by any 
such officer with notice of such order to permit 
any person so declared qualified to vote to vote 
at an appropriate election shall constitute contempt 
of court.

An application for an order pursuant to this 
subsection shall be heard within ten days, and the 
execution of any order disposing of such application 
shall not be stayed if the effect of such stay would 
be to delay the effectiveness of the order beyond 
the date of any election at which the applicant 
would otherwise be enabled to vote.

The court may appoint one or more persons who 
are qualified voters in the judicial district, to be 
known as voting referees, who shall subscribe to 
the oath of office required by section 16 of Title 5, 
to serve for such period as the court shall determine, 
to receive such applications and to take evidence 
and report to the court findings as to whether or 
not at any election or elections (1) any such appli-



84

cant is qualified under State law to vote, and (2) he 
has since the finding by the court heretofore speci­
fied been (a) deprived of or denied under color of 
law the opportunity to register to vote or otherwise 
to qualify to vote, or (b) found not qualified to 
vote by any person acting under color of law. In 
a proceeding before a voting referee, the applicant 
shall be heard ex parte at such times and places as 
the court shall direct. His statement under oath 
shall be prima facie evidence as to his age, residence, 
and his prior efforts to register or otherwise qualify 
to vote. Where proof of literacy or an under­
standing of other subjects is required by valid 
provisions of State law, the answer of the applicant, 
if written, shall be included in such report to the 
court; if oral, it shall be taken down stenograph- 
ically and a transcription included in such report 
to the court.

Upon receipt of such report, the court shall 
cause the Attorney General to transmit a copy 
thereof to the State attorney general and to 
each party to such proceeding together with an 
order to show cause within ten days, or such 
shorter time as the court may fix, why an order 
of the court should not be entered in accordance 
with such report. Upon the expiration of such 
period, such order shall be entered unless prior to 
that time there has been filed with the court and 
served upon all parties a statement of exceptions 
to such report. Exceptions as. to matters of fact 
shall be considered only if supported by a duly 
verified copy of a public record or by affidavit 
of persons having personal knowledge of such 
facts or by statements or matters contained in 
such report; those relating to matters of law 
shall be supported by an appropriate memo­
randum of law. The issues of fact and law raised 
by such exceptions shall be determined by the 
court or, if the due and speedy administration 
of justice requires, they may be referred to the 
voting referee to determine in accordance with 
procedures prescribed by the court. A hearing 
as to an issue of fact shall be held only in the



85

event that the proof in support of the excep­
tion disclose the existence of a genuine issue 
of material fact. The applicant’s literacy and 
understanding of other subjects shall be deter­
mined solely on the basis of answers included 
in the report of the voting referee.

The court, or at its direction the voting referee, 
shall issue to each applicant so declared qualified 
a certificate identifying the holder thereof as a 
person so qualified.

Any voting referee appointed by the court 
pursuant to this subsection shall to the extent 
not inconsistent herewith have all the powers 
conferred upon a master by rule 53(c) of the 
Federal Rules of Civil Procedure. The com­
pensation to be allowed to any persons appointed 
by the court pursuant to this subsection shall be 
fixed by the court and shall be payable by the 
United States.

Applications pursuant to this subsection shall 
be determined expeditiously. In the case of 
any application filed twenty or more days prior 
to an election which is undetermined by the 
time of such election, the court shall issue an 
order authorizing the applicant to vote provi­
sionally: Provided, however, That such appli­
cant shall be qualified to vote under State law. 
In the case of an application filed within twenty 
days prior to an election, the court, in its dis­
cretion, may make such an order. In either 
case the order shall make appropriate provi­
sion for the impounding of the applicant’s 
ballot pending determination of the application. 
The court may take any other action, and may 
authorize such referee or such other person as 
it may designate to take any other action, 
appropriate or necessary to carry out the pro­
visions of this subsection and to enforce its de­
crees. This subsection shall in no way be 
construed as a limitation upon the existing powers 
of the court.

When used in this subsection, the word “ vote” 
includes all action necessary to make a vote



8 6

effective including, but not limited to, registra­
tion or other action required by State law pre­
requisite to voting, casting a ballot, and having 
such ballot counted and included in the appro­
priate totals of votes cast with respect to can­
didates for public office and propositions for 
which votes are received in an election; the 
words "affected area” shall mean any sub­
division of the State in which the laws of the 
State relating to voting are or have been to any 
extent administered by a person found in the 
proceeding to have violated subsection (a) of 
this section; and the words "qualified under 
State law” shall mean qualified according to 
the laws, customs, or usages of the State, and 
shall not, in any event, imply qualifications 
more stringent than those used by the persons 
found in the proceeding to have violated sub­
section (a) of this section in qualifying persons 
other than those of the race or color against 
which the pattern or practice of discrimination 
was found to exist.

* * * * *



Relevant text of Section 1 of Article VIII of the Consti­
tution of Louisiana, as originally adopted in 1921 and as 
amended in November, 1960.

[Portions in Roman script represent the original text; 
additions made in 1960 are shown in italics; deletions are 
indicated by barred words. The provision directly chal­
lenged in this proceeding (part of the original text but 
now of broader applicability) is that part of subsection (d) 
(infra, p. 90) printed in boldface].

APPEN DIX B

A r t ic l e  VIII

SUFFRAGE AND ELECTIONS

§ 1. RIGHT TO VOTE; QUALIFICATIONS OF ELECTORS; 
REGISTRATION.

se c t io n  1. Right to vote. After January 1, 1922, the 
right to vote in Louisiana shall not exist except under the 
provisions of this Constitution.

c it iz e n s h ip  an d  a g e . Every citizen of this State and of 
the United States, native bom or naturalized, not less than 
twenty-one years of age, and possessing the following 
qualifications, shall be an elector, and shall be entitled to 
vote at any election in the State by the people:

* * * * *

(c )  CHARACTER an d  l it e r a c y . He shall b e  o f  g o o d  ch a r­
a cter  an d  shall u n derstan d  th e  d u ties  a n d  ob lig a t io n s  o f  
c itizen sh ip  u n der a  rep u b lica n  fo rm  o f  g ov ern m en t. One 
who has committed any of the following acts shall not be con­
sidered of good character:

(1) Has been convicted of a felony and has not received a 
pardon and full restoration of franchise.

(87)



88

(2) Has been convicted and sentenced to a term, of ninety 
(90) days or more in jail for each conviction of more than one 
misdemeanor, other than traffic and for game law violations, 
within the five years immediately prior to the date of making 
application for registration as an elector.

(S) Has been convicted and sentenced to a term of six (6) 
months or more in jail for any misdemeanor, other than 
traffic and/or game law violations, within one year immedi­
ately prior to the date of making application for registration 
as an elector.

(Jf) Who has lived with another in “ common law” marriage 
within five years from the date of making application to 
become an elector, the common law union to be considered in 
accordance with the definition- thereof prescribed by the 
criminal laws of this state.

(5) Has given birth to an illegitimate child within the 
five years immediately prior to the date of making applica­
tion for registration as an elector, provided that the provisions 
in this paragraph shall not apply to mothers of illegitimate 
children conceived as a consequence of rape or forced carnal 
knowledge.

(6) FI as been proven to be or who has acknowledged 
himself to be the father of an illegitimate child within the 
five years immediately prior to the date of making application 
for registration as an elector.

(7) The above enumerated acts denoting bad character 
shall not be deemed exclusive hereunder but said bad character 
may be established by any competent evidence.

He shall be able to read and write in the English 
language, or his mother tongue, and shall demonstrate his 
ability to do so when he applies for registration by the 
reading and the writing from dictation given by the registrar, 
or an interpreter duly sworn, any portion of the preamble to 
the Constitution of the United States of America, and by 
making, under oath administered by the registration 
officer or his deputy, written application for registration,



89

in the English language, or his mother tongue, which 
application shall contain the essential facts necessary to 
show that he is entitled to register and vote, and shall be 
entirely written, dated and signed by him, except that 
he may date, fill out, and sign the blank application for 
registration hereinafter provided for, and, in either case, 
in the presence of the registration officer or his deputy, 
without assistance or [suggestion] supervision from any 
person or any memorandum whatever, other than the 
form of application hereinafter set forth; provided, 
however, that, if the applicant be unable to write his 
application in the English language, he shall have the 
right, if he so demands, to write the same in his mother 
tongue from the dictation of an interpreter; and, if the 
applicant is unable to write his application by reason of 
physical disability, the same shall be written at his dicta­
tion by the registration officer or his deputy, upon his 
oath of such disability.

Until and unless otherwise provided by law, the applica­
tion for registration above provided for, shall be a copy 
of the following form, with the proper names, dates and 
numbers substituted for the blanks appearing therein, 
to-wit:

I am a citizen of the State of Louisiana. My name is
M r.___________ , M rs.____________, Miss____________,
I was born in the State (or country) o f ____________,
Parish (or county) o f ____________, on t h e ______ day
o f ____________ , in the year ______  I am n o w _____
years, _____ months and _______ days of age. I have
resided in this State since ____________ , in this parish
since____________, and in precinct N o .______, in Ward
N o ._____ , of this parish continuously since____________ ,
and I am not disfranchised by any provision of the 
Constitution of this State.

The application for registration form above provided for 
shall be filled out by the applicant and sworn and, sub-



90

scribed to before the registrar of voters or deputy registrar 
of voters.

Said applicant shall also fee afele te read any clause in 
this Constitution;- ©r tfee Censtitu-tion ©f tfee United 
States, and give a feasenable interpretation thereof?

(d )  CHARACTER AND UNDERSTANDING, Lf fee is  n©t afeie 
t© read ©r writey tfeen fee sfeall fee entitled t© register if 
[H]e shall be a person of good character and reputation, 
attached to the principles of the Constitution of the 
United States and of the State of Louisiana, and shall 
be able to understand and give a reasonable interpreta­
tion of any section of either Constitution when read to 
Mm by the registrar, and he must be well disposed to 
the good order and happiness of the State of Louisiana 
and of the United States and must understand the duties 
and obligations of citizenship under a republican form of 
government. He shall demonstrate that he is well disposed 
to the good order and happiness of the State of Louisiana 
by executing an affidavit affirming that he will faithfully 
and fully abide by all of the laws of the State of Louisiana. 

* * * * *
(/) Notwithstanding any provision in this section to the 

contrary, the inability of any person to read or write for 
any reason, who is registered to vote as of November 8, I960, 
shall not be grounds for removal of such person from the 
registration rolls, by the registrar, by challenge of other 
persons, or by any action of court. Added Acts 1960, 
No. 613, adopted Nov. 8, 1960.

0 .5 .  GOVERNMENT PRINTING O F F !C E :!965



91 A PPE N D IX  C
State-wide statistics

NOTES ----- —— ----------- —  --------- ----- ----------- ---------------------------
a All figures in these columns are taken from U.S. Bureau of the Census, C ensus o f  P o p u la tio n : Year 

I960, Vol. I, Part 20, Table 15, p. 27.
h The basic figures are derived from the respective decennial census reports. See U.S. Census 

Office, C om pend ium  o f  the E leventh C en su s: 1890, Part I, Table 25, p. 764 (H. Misc. Doc. No. 340,

Total population ® Voting age population * (Over 21, males only 
through 1920)

Begistered voters « Registration rate d

Total White Negro Negro % 
of total

Total White Negro Negro % 
of total

Total White Negro Negro % 
of total

White 1 Negro

Part 6, 52d Cong., 1st Sess.); id., Tw elfth  C en su s: 1900, Vol. II, Table X L , p. lxxvi, Table 24, p. 171,
U .S. Bureau of the Census, Thirteenth C en su s: 1910, Vol. II, Louisiana Table 6, p. 773, Louisiana Table 1890— 1,118,688 558,395 559,193 50% 250,563 130,748 119,469 47.6 % 254,807 126,884 227,923 SO. 2% 91% 100%

id., S ixteenth C ensus o f  the U nited States: 1940, Population Vol. II, Part I, Table 26, p. 73; id ., C ensus l » : o .........
0f  P o p u la t in g  hmo Vnl T Part 20r Table 16. dd. 30. 31 (for both 1950 and 1960). For 1890, 1950, and _ .

1,381,625 729,612 650,804 47.1% 325,943 177,878 147,348 45.2% 130,757 125,437 5,320 4.1% 71% 4%

1960, because the cited tables group together all “ colored" or “ non-white" adults (or male adults 1910___ — 1,656,388 941,086 713,874 43.1% 414,919 240,001 174,211 42.0% 117,993 116,349 730 0.5% 48% 0.4%

from the “ Negro" column. Exact figures being unavailable, this was done b y  subtracting from the 1920___ _
total number of adult “ non-whites" one-half the total number of non-Negro “ non-whites" in the 1922___ _

1,798,509 1,096,611 700,257 38. 9% 469,669 290,374 178,623 38.0% 260,765 
191,789 
323,555 
274,917 
379,270

257,232 
191,191 
317,136 
274,532 
376,963

3,533 
598 
955 
988 

2,054

1.4%
0.3%
0.3%
0.4%
0.5%

86% 2%

State population in the given year (one-half of the male total for 1890 when women could not vote) 2924___ ____

resulting from this procedure are insignificant, since the percentage of “ non-whites”  other than 1928_..........

adjustment are found in U.S. Bureau of the Census, Census o f  P op u la tion : I960, Vol I, Part 20, Table JB30 _
16, p. 27. 3932.............

2,101,593 1,322,712 776,326 37.1% 1,134,852 716,356 415,047 36.6% 363,570 
481,997 
395,682 
643,590 
527,059

361,271
480,406
395,385
641,609
525,936

2,279
1,591
1,306
1,981
1,123

0.6%
0.3%
0.3%
0.3%
0.2%

48% 0.6%

C All figures are taken from official Louisiana reports. Most of them are reproduced in PI. Exh. 1 1934 ...........
or Pi Exh. 104. Exceptions are: the figures for 1940 and 1960 which are shown in PI. Exh. 134, B . 1936
805-816 (also Exhs. 121,122), the 1962 figures which are shown on PI. Exh. 14, and the 3934 and 1950 1938— ___

L ou isiana , dated January 1, 1935, and January 3,1951, respectively. With the exceptions hereafter 1940— ........
noted, the figures listed for 1910 and subsequent years represent the October list of registered voters. 1942_______

2,363,880 1,511,739 849,303 35. 9% 1,374,947 899,960 473,562 34. 4% 702,545 
606,298 
722,715 
770,121 
924,705

701,659 
605,341 
721,043 
762,560 
896,417

886 
957 

1,672 
7,561 

28,177

0.1%
0.2%
0.2%
1.0%
3.0%

77% 0.2%

The entries for 1956 are as of March 17 of that year, the all-time high for Negro registration (October, 1944 ........__
1956 figures: total, 1,056,546; white, 903,959; Negro, 152,578; Negro %, 14.4%; PI. Exhs. 304, 152). The 1946............
1962 figures are as of December 31. The figures listed in the “ 1890”  column are actually those for 1888, 1848_______

for 1888 (listed here as “ 1890” ) is obviously inaccurate, at least with respect to Negro voters. Doubt- 1950— ___
less, the list had not been recently purged of the names of a substantial number of former registrants 1962_______

2,683,516 1,796,683 882,428 32.9% 1,687,145 1,105,861 479,082 30. 2% 818,031
1,056,720

871,635
1,057,908

946,267

756,356 
945,038 
753,333 
896,498 
816,643

61,675 
107,844 
118,183 
161,410 
129,624

7.5%
10.2%
13.6%
15,3%
13.7%

68% 12%

who had died or moved from the State. Presumably, however, the same error is reflected on the list 1954____ __
of white voters and the percentage figure may therefore be assumed approximately accurate. Minor 1956_______
discrepancies will be noted in some of the totals for other years, which are copied from the official 1958 ...........

d These percentages are arrived at by  comparing the total voting age population for each race i960...........
(shown in columns 7 and 8) and the registration figures for each race in the census years (from columns 1932_______

3,257,022 2,211,715 1,039,207 31.9% 1,803,805 1,289,216 511,539 28.4% 1,152,151 
1,093,855

993,118 
942,977

159,033 
150,878

13.8%
13.8%

77% 31%

11 and 12). The “ registration rate”  noted for 1890 must be viewed as approximate only because the
registration figures for that year are obviously inflated. See note (c) supra. 

755-226—*64 (Face p, 90) No. X



93

NOTES

tst
i ,  19Jt9 t o  D e c e m b e r  S U  1950  (O c to b e r  1950 figures), 

o P b  E x b . 1 (O c to b e r  1954 figu res), 
d p i .  E x b . 1 (M a rc h  1956 figu res).

th e  reg istra tion  ra te  is  here  in d ica te d  as “ 100%. 
i P I . E x b . 14 (D e ce m b e r  1962 figures).

755-226—64 (Face p. 90) No. 2

Statistics, for the 21 parishes using the interpretation test

APPENDIX D

1950 1954 1956 1958 1960 1962

Voting Age Population a Registered Voters <> Registration
Rate

Registered Voters ° Registered Voters d Registered V oters» Voting Age Population > Registered Voters * Registration
Rate!*

Registered Voters i

White Negro
Negro
% o f
Total

White Negro
Negro
% o f
total

White Negro White Negro
Negro
% o f
total

White Negro
Negro
% o£
total

White Negro
Negro
% o f
total

White Negro
Negro
% o f
total

White Negro
Negro
% o f
total

White Negro White Negro
Negro
% o f
total

Bienville........ 6,123 4,478 42.2% 5,015 85 1.7% 81.9% 1.9% 4,331. 482 30.0% 5,328 587 9.9% 4,759 28 0. 58% 5,617 4,077 42.1% 5,175 25 0.48% 92.1% 0.61% 4,664 478 9.3%

Claiborne----- 7,748 6,277 44.8% 4,885 17 .34% 63.0% .27% 5,610 15 .20% 5,808 17 .29% 5,698 15 .26% 6,415 5,032 43. 9% 5,501 29 .52% 85.8% .57% 5,218 34 .64%

De Soto___ __ 6,644 6,859 60.8% 4,684 0 0% 70.5% 0% 3,827 373 8.8% 5,640 762 11.9% 5,526 486 8.1% 6,543 6,753 51.5% 5,822 594 9.3% 89.0% 8,8% 5,655 599 9.6%

East Carroll.. 3,223 5,330 62.3% 2,186 0 0% 67.2% 0% 2,074 0 0% 3,000 0 0% 2,028 0 0% 2,990 4,183 58.3% 2,845 0 0% 95.2% 0% 1,261, 5 .39%

East
Feliciana__ 6,214 6,235 60.1% 2,214 1 • 01% 35.6% .01% 2,544 648 20. 3% 2,812 1,361 32.6% 2,485 454 15.4% 7,043 6,081 46.3% 2,448 82 3.2% 34.8% 1-3% 2,517 80 3.1%

Franklin____ 9,870 5,070 33.9% 6,988 0 0% 70. 8% 0% 6,331 445 8.5% 8,297 650 7. 28% 5,692 364 6. 01% 8,954 4,433 33.1% 8,260 390 4.5% 92.2% 8.8% 5,050 155 3.0%
Jackson_____ 6,415 2,299 26.4% 5,900 840 12. 5% 92. 0% 36.5% 4,305 760 15.0% 5,457 1,113 16.9% 4,956 360 6.8% 6,607 2,635 27.7% 5,804 483 7.7% 87. 8% 19.1% 5,579 479 7.9%

L a  Salle......... 6,615 813 10. 9% 5,780 0 0% 87.4% 0% 5,543 544 8.9% . 6,861 742 9.8% 4,901 157 2.9% 6,799 849 H.1% 6,823 220 3.1% 100% 25.9% 5,308 190 3,5%
Lincoln_____ 9,297 5,242 36.1% 5,952 349 5.5% 64.0% '6.7% 5,301 947 15.2% 7,029 1,166 14.2% , 4,665 470 9.2% 9,611 5,723 37.3% 6,928 860 11.0% 72.1% 15.0% 4,825 720 13.0%
Morehouse__ 9,466 7,907 45. 6% 6,173 538 8.0% 65.2% 6.8% 6,433 743 10.3% 9, 400 935 9.03% 4,647 202 4.2% 10,311 7,208 41.1% 7,489 301 3.9% 72.3% 4.2% 5,590 251 4.3%
Ouachita____ 31,381 14,532 31.7% 19,791 2,365 10. 7% 63.1% 16.3% 23,299 3,183 12.0% 24,184 5,782 19. 3% 21,979 776 3.4% 40,185 16,377 28.9% 24,789 729 2.7% 61.7% 4.5% 25,138 1,001 3.8%
Plaquemines. 5,229 2,642 33.6% 4,441 0 0% 84.9% 0% 4,399 54 1.21% 4,741 49 1.02% 5,371 45 • 8% 8,633 2,897 25.1% 7,160 47 .65% 82.9% 1.6% 6,735 85 1.2%
Rapides-------- 37,185 17,618 32.1% 26,956 3,517 11.5% 72. 6% 2.0% 23,191 2,626 10.2% 26,293 3,260 10. 7% 25,294 2,630 9.4% 44,823 18,141 28. 8% 30,362 3,073 9.2% 67.7% 16.9% 30,002 3,010 9.1%
Bed River 3,669 2,917 46.0% 3,164 0 0% 88.7% 0% 2,916 1,044 26.4% 3,575 1,512 29.7% 1,958 15 .76% 3,294 2,181 39.8% 3,429 27 • 78% 100% 1.2% 3,061 31 1.0%
Richland - ~~ 8,452 5,427 39.1% 5,636 253 4.3% 66. 7% 4.7% 5,641 477 7.8% 7,195 740 9.3% 4,273 179 3.9% 7,601 4,608 37.7% 6,075 263 4.1% 79. 9% 5.7% 4,062 218 6. 1%
St. Helena. _. 2,440 2,085 46.1% 2,383 0 0% 97. 7% 0% 1,884 1,049 35.8% 2,555 1,694 39.8% 1,702 1,059 38.4% 2,363 2,082 46.8% 2,478 1,243 33 .4 % 100% 59.7% 1,715 209 M.9%

Union_______ 7,642 3,162 29. 6% 6,236 464 6.9% 82. 7% 14.7% 5,155 1,031 16.7% 6,895 1,600 18.8% 3,935 368 8.6% 7,021 3,006 29.9% 5,911 597 9.2% 84.2% 19.7% 6,000 600 9.1%
Webster_____ 13,606 6,618 32. 7% 9,470 654 6.5% 69. 6% 9.9% 9,065 1,247 12.1% 12,618 1,769 12. 3% 8,197 80 .97% 15,713 7,045 30.9% 12,250 130 1-1% 77.9% 1.8% 8,581 120 1.4%
West Carroll. 7,223 1,531 17.5% 5,162 0 0% 71. 5% 0% 3,925 248 5.9% 5,660 292 4.9% 3,265 70 2.1% 6,171 1,389 i&4% 5,182 70 1.3% 84.0% 5.0% 2,494 28 1.1%
West

Feliciana... 2,134 4,076 67.0% 954 0 0% 44.7% 0% 1,050 0 0% 1,272 0 0% 901 0 0% 2,814 4,553 61.8% 3,303 0 0% 46.3% 0% 1,098 0 0%
W inn_____ ... 7,012 2,489 26. 2% 6,108 251 3.9% 87.1% 10.1% 5,381 731 12.0% 6,449 1,430 18.1% 4,872 746 13.3% 6,790 2,590 27. 6% 6,393 1,093 14.6% 94.2% 42.2% 5,917 934 13.6%

A ll 21 
parishes.. 197,388 113,607 36.6% 140,078 9,334 6.2% 71.0% 8.2% 132,205 16,647 12.6% 161,069 25,361 13.6% 127,104 8,504 6.3% 216,298 311,743 34.1% 162,427 10,256 5.9% 75.1% 9.2%. 140,468 9,227 6,2%