Bynum v Burns Jr Brief for Appellees

    United States Court of Appeals
FOR THE EIGHTH CIRCUIT

No. 18704
CIVIL

H un ter  B y n u m , ----------------------------------------------------- Appellant
v.

T. I. B urns , Jr., J im m y  B est, Jr., and  
S an dy  T olson T aliaferro, M embers of 
th e  L incoln  C ou nty  E lection  C omm ission , __Appellees

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE EASTERN DISTRICT 

OF ARKANSAS

H on . J . S m it h  H enley

BRIEF FOR APPELLEES

J oe P urcell

Attorney General of Arkansas

R. D. S m it h  III 
Assistant Attorney General

Justice Building 
Little Rock, Arkansas

Attorneys for Appellees

PA R A G O N  P R IN T IN G  C O .. L IT T L E  RO CK



INDEX

Page

STATEMENT OF FACTS ____________________________________  3

QUESTIONS PRESENTED ___________________________________  4
POINTS AND AUTHORITIES TO BE RELIED ON ____________ 5

ARGUMENT

The District Court was correct when it stated that 
Plaintiff’s Complaint was not timely filed ____________ ___  7
The District Court was correct when it stated that
Statutory technicalities of qualifying for public
office must be followed _________________________________  9
The District Court was correct in reaching the
conclusion that the Election Officials acted according
to Arkansas State Law when disqualifying Appellant ____ 11
The District Court was correct when it did not find
the action of Appellees was based on racial prejudice ____ 13
This Appeal should be dismissed because the question
is now moot and because the relief prayed for
could not now be granted —-------------------------------------------  15

CONCLUSION _______________________________________________ 17
Carroll v. Schneider, 211 Ark. 538; 201 S.W. 2d 221 (1947) ___ 10,11,12

Cave v. Newell, 246 U.S. 650; 38 S.Ct. 333; 62 L.Ed.
921 (1917) _________________________________________________ 10

Colpo v. Highway Truck Drivers and Helpers Local 107, of 
International Brothers of Teamsters of America,
305 F. 2d 362; cert denied 371 U.S. 890, 83 S.Ct. 188;
9 L. Ed. 2d 123 (1962) _____________________________________  16

Fisher v. Taylor, 210 Ark. 380; 196 S.W. 2d 217 (1946) __________ 9
Howard v. Wilbur, et al, 166 F. 2d 884 (1948) __L_______________  16

Mills v. Green, 159 U.S. 651, 16 S.Ct. 132;
40 L.Ed. 293 (1895) _______________________________________  16

Snowden v. Illinois Canvassing Board, 321 U.S. 1 (1943)________ 9
Taylor and Marshall v. Beckham, 178 U.S. 548; 20 S.Ct. 890;

44 L.Ed. 1187 (1900) ______________________________________  9
Ark. Stat. Ann. Sec. 3-261 (1956 Repl.)
Ark. Stat. Ann. Sec. 3-837 (1956 Repl.)

Ark. Stat. Ann. Sec. 3-841 (1956 Repl.)



United States Court of Appeals
FOR THE EIGHTH CIRCUIT

No. 18704
CIVIL

H u n ter  B y n u m , Appellant

v.

T . I. B u rn s , J r., J im m y  B est , J r ., and 
S an dy  T olson T aliaferro, M embers of 
th e  L incoln  C o u nty  E lection  C omm ission , __Appellees

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE EASTERN DISTRICT 

OF ARKANSAS

H on . J. S m it h  H enley

BRIEF FOR APPELLEES

STATEMENT OF FACTS

Lincoln County, Arkansas, is a small county located 
in southeastern Arkansas and is heavily Negro in popu­
lation. Gould Township is in Lincoln County, Arkansas, 
and Negroes constitute approximately 62% of the voting 
population of the township. In 1964 two Negroes filed 
and stood election for public office in Gould Township 
(R.21, 34, 35, 36).



2

Prior to the 1966 General Election two Negroes, Mrs. 
Carrie Dillworth and appellant, Mr. Hunter Bynum, at­
tempted to offer themselves as candidates in the General 
Election. Mrs. Dillworth attempted to offer herself as 
a candidate for Mayor of Gould, Arkansas, and appellant 
attempted to offer himself as a candidate for Justice of 
the Peace of Gould Township (R .ll, 26). The qualify­
ing deadline for candidates for election to Gould Town­
ship and City of Gould offices was September 24, 1966. 
On September 23, 1966, Mrs. Dillworth, who qualifies in 
all respects to run for the office of Mayor of Gould, 
Arkansas, presented herself at the office of the County 
Clerk in Star City, Arkansas, seeking* to qualify for the 
office of Mayor of the City of Gould (R .ll, 12). The 
County Clerk was not in his office or in the city, and two 
secretaries that worked in his office stated to Mrs. 
Dillworth that they did not know anything about filing 
as a candidate and directed her to Mr. W. V. Burns, Sr., 
who is the Chairman of the Lincoln County Election Com­
mission (R.13). Mrs. Dillworth went to see Mr. Burns 
and found him on the job building a house. She stated 
that she wanted to file for the position of Mayor, and 
Mr. Burns told her that she must first pay the statutory 
filing fee before she could file her petition. She evi­
dently inquired as to where she should pay the filing fee, 
and Mr. Burns responded by saying, “ I told her if I 
wasn’t mistaken that she should pay that filing fee to 
her City Treasurer in Gould; and she says, ‘ Well, since 
this is the county seat 1 figured it would be all right 
to pay it in Star City ’ ; and I told her that I wasn’t sure 
about this, but to go and check with our City Treasurer 
and he could advise her whether to or not to take her 
money for a receipt”  (R.39). Mrs. Dillworth went to the 
City Treasurer of Star City, Arkansas, Mr. John Carter, 
and after some argument about his office being the proper



3

place to file, Mr. Carter accepted the money for the filing 
fee and wrote her a receipt which she brought back Avith 
her petition to Mr. Burns (R.48). In the evening of 
Saturday, September 24, 1966, appellant, accompanied by 
Mrs. Dill worth, went to the County Clerk’s office in Star 
City, Arkansas, seeking to qualify for the position of 
Justice of the Peace of Gould Township but found the 
office was closed (R.26). Appellant and Mrs. Dillworth 
then proceeded to the home of Mr. W. V. Burns, Sr., and 
appellant told Mr. Burns that he wished to run for the 
office of Justice of the Peace, Position 3 (R.27). Mr. 
Burns told appellant “ that he hadn’t paid his filing fee 
and that he should have paid it in Gould to the City 
Treasurer; and I sent her to Mr. Carter again; and they 
came back and she had paid it or he had paid his filing 
fee, and I accepted his petition”  (R.39). Actually, ap­
pellant should have filed and paid his fee to the County 
Treasurer instead of the City Treasurer since the po­
sition of Justice of the Peace is a county position. On 
September 29, 1966, five days after the final date for 
filing, the County Election Commission met to certify 
candidates. The Commission discovered that appellant 
had not paid his filing fee in the proper office and there­
fore had not qualified under the Arkansas Statutes to be 
certified as a candidate (R.49). On September 29, 1966, 
Mr. Jimmy Best, Jr., a member of the Lincoln County 
Election Commission, wrote appellant to the effect that 
he had been disqualified as not complying with the State 
statutes and his name would not appear on the ballot.

The General Election was held on November 8, 1966, 
and appellant had qualified as a write-in candidate and, 
therefore, was eligible for election pursuant to the will of 
the electorate (R.59),



4

The complaint herein was not filed until October 20, 
1966, and the matter came on for hearing on October 28, 
1966, only a short time before the election on November 
8, 1966. The District Court’s oral opinion denying any 
relief to appellant and dismissing appellant’s complaint is 
found on pages 68 and following of the printed record. 
Notice of appeal to this Court was filed on November 29, 
1966 (R.76).

QUESTIONS PRESENTED

The only question raised by this appeal is whether or 
not a candidate for public office must comply with the 
state election laws in order to be certified as a candidate 
and have his name placed on the ballot.



5

POINTS AND AUTHORITIES TO BE RELIED ON

i

The District Court was correct when it stated that Plain­
tiff’s complaint was not timely filed.

n

The District Court was correct when it stated that stat­
utory technicalities of qualifying for public office 
must be followed.

Carroll v. Schneider, 211 Ark. 538; 201 S.W. 2d 221 (1947)

Cave v. Newell, 246 U.S. 650; 38 S. Ct. 333; 62 L. Ed. 921 
(1917)

Fisher v. Taylor, 210 Ark. 380; 196 S.W. 2d 217 (1946)

Snowden v. Illinois Canvassing Board, 321 IT. S. 1 (1943)

Taylor and Marshall v. Beckham, 178 U.S. 548; 20 S. Ct. 
890; 44 L. Ed. 1187 (1900)

Ark. Stat. Ann. §3-261 (1956 Repl.)

Ark. Stat. Ann. §3-837 (1956 Repl.)

Ark. Stat. Ann. §3-841 (1956 Repl.)



6

in

The District Court was correct in reaching the conclusion 
that the election officials acted according to Arkansas 
State Law when disqualifying appellant.

Carroll v. Schneider, 211 Ark, 538, 201 S.W. 2d 221 (1947)

Ark. Stat. Ann. §3-261 (1956 Kepi.)

IV

The District Court was correct when it did not find th& 
action of appellees ivas based on racial prejudice.

Ark. Stat. Ann. §3-261 (1956 Kepi.)

v

This appeal should be dismissed because the question is 
now moot and because the relief prayed for could 
now be granted.

Colpo v. Highway Truck, Drivers and Helpers Local 107 of 
International Brothers of Teamsters of America, 305 
F. 2d 362; cert, denied 371 U.S. 890, 83 S. Ct. 188, 9 
L. Ed. 2d 123 (1962)

Howard v Wilbur et al, 166 F. 2d 884 (1948)

Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L. Ed. 293 
(1895)



7

ARGUMENT

l

The District Court was correct when it stated that Plain­
tiff’s complaint was not timely filed.

The District Court, after assuming jurisdiction of this 
cause, ruled that it would not act to give any relief, even 
if such relief were in order, because the plaintiff in this 
case had not “ shown diligence in vindicating his rights” 
(R.71) as his complaint was not timely filed.

Appellant was notified shortly after September 29, 
1966, that his name would not be on the ballot since he 
had not complied with the State statutes. The complaint 
of the appellant was not filed in the District Court until 
October 20, 1966, and the Court was not notified that ap­
pellant wished an immediate hearing until 4:30 in the 
afternoon of Wednesday, October 26, 1966 (R.72). A 
hearing was scheduled for October 28, 1966, at which time 
both parties presented their cases. The election was to 
be held on November 8, 1966, and the ballots had been 
printed before the hearing in the District Court. Judge 
Henley noted that appellant had evidently made no at­
tempt to seek any relief whatever in the State courts prior 
to filing this suit some 20 days after receiving notice of 
his disqualification and further indicated that since time 
was of the essence when relief of this sort was prayed for 
that the appellant had not been diligent in vindicating his 
rights. By October 28, 1966, ballots had been printed, 
some of them had been delivered to election officials for 
absentee voters, and there had been some ballots already 
voted and mailed in to the election officials. Judge Hen­
ley correctly stated that these people who had voted earlier 
had rights that must be protected by this Court and that



8

he could not retroactively put appellant’s name on those 
ballots that had been previously voted (T.72).

The District Court was cognizant of the fact that it 
would be physically possible for the ballots to be re­
printed prior to November 8, 1966 (T.72), but by doing 
so the Court would disenfranchise certain voters who had 
voted absentee and also it would involve some expense and 
a great deal of inconvenience to the election officials in 
Lincoln County, Arkansas.

The period of time which is reasonable in any case is 
determined by the surrounding circumstances. I f the 
election had been three months after the notice of dis­
qualification, waiting a period of 20 days by appellant to 
file his suit would certainly have been reasonable; but 
under the circumstances in this case the election was ap­
proximately 38 days after the notice of disqualification 
had been received by the appellant, and the lawsuit was 
not filed for 20 of the 38 days before the election. Even 
after the lawsuit was filed on October 20, 1966, it was 
another six days before appellant informed the Court of 
his wishes for an immediate hearing and approximately 
28 days after notice of disqualification had been given be­
fore a hearing could be held. Ordinarily the defendant 
has 20 days in which to answer and prepare his case [Fed­
eral Rules of Civil Procedure, Rule 12(a)], but in this case, 
because of the time element, the defendant was ordered to 
answer in less than eight days after he received service 
and to fully prepare and present his case to the Court. It 
is clear that the District Court was correct when it found 
that the appellant had not been diligent in vindicating his 
rights and was further correct when the Court would not 
issue an injunction because the appellant had not been 
diligent in vindicating his rights.



9

i i

The District Court was correct when it stated that stat­
utory technicalities of qualifying for public office 
must be followed.

Appellant argues that this case involves the rights 
of all Negro citizens in Gould Township. Appellees con­
tend that this case actually involves the rights of all citi­
zens of Arkansas, regardless of their race, because the 
question here is whether State election laws must be fol­
lowed when attempting to file as a candidate for public 
office.

The District Court stated correctly that State election 
laws are by their very nature technical, and these techni­
calities must be upheld in order to have a standard prac­
tice the affect all citizens equally. Appellee finds no 
merit in appellant’s contention that he was disqualified 
because he was a Negro, but asserts that appellant was 
disqualified as a candidate for Justice of the Peace be­
cause he did not comply with the Arkansas Statutes re­
garding the paying of a filing fee (T.18, 40, and 49). Ar­
kansas has long recognized and acknowledged the right 
of any citizen who qualifies to seek public office and who 
complies with the election laws to have his name placed 
on the ballot. Fisher v. Taylor, 210 Ark. 38, 196 S.W. 
2d 217 (1946). The District Court, when considering 
this case, discussed the Fisher case and also noted that 
for many years the federal cases have held that an elec­
tion case of this type does not involve the Privileges and 
Immunities Clause of the United States Constitution and 
therefore there is no due process argument. Snowden v. 
Illinois Canvassing Board, 321 U.S. 1 (1943) ; Taylor and 
Marshall v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed.



10

1187 (1900); Cave v Newell, 246 U.S. 650, 62 L.Ed. 921, 
38 S.Ct. 333 (1917).

An independent candidate for a township office such 
as Justice of the Peace must have a petition signed by 
not less than ten nor more than fifty of the electors of the 
township [Ark. Stat. Ann. §3-261 (e)] and pay to the 
treasurer or collector of the county the sum of $1.00 which 
is to be placed in the county general fund [Ark. Stat. Ann. 
§3-261 (g) ] (as to independent candidates, see also Ark. 
Stat. Ann. §§3-837 and 3-841). It is apparent that the 
procedure for filing for an office such as Justice of the 
Peace is simply and clearly stated in the Statutes and only 
requires a minimum amount of work on the part of the 
candidate. It is the contention of the appellees that the 
requirements do not burden any prospective candidate so 
as to make the Statutes unconstitutional as appellant con­
tends but is merely a formality which allows all prospec­
tive candidates to be treated equally and any candidate 
that complies and qualifies under the Statute will have 
his name placed on the ballot. It is equally certain that 
one who does not comply with the Statute has not quali­
fied as a candidate and should not be allowed to have his 
name placed on the ballot, and it is our contention that 
the county election commission has a duty to disqualify 
a candidate who does not comply with the Statute [Ark. 
Stat. Ann. §3-261(g)]. Carroll v. Schneider, 211 Ark. 
538, 201 S.W, 2d 221 (1947). Appellant would have Ap­
pellees violate state law in order that Appellant’s name 
would be on the ballot, and Appellees certainly urge that 
this Court should not hold that state election laws can and 
should be disregarded for the benefit of one who has 
failed to comply with these laws. Appellees further con­
tend that this Court should not make a finding that would 
force the state election officials to intentionally violate 
their duty under the state election laws.



11

III

The District Court was correct in reaching the conclusion 
that the election officials acted according to Arkansas 
State Law when disqualifying appellant.

It is clear that the Arkansas Statutes state what is 
necessary for a candidate to do to file for a public office 
[Ark. Stat. Ann. §3-261], and it is further clear that the 
county election commissioners cannot certify a candidate 
when he has not filed correctly [Ark. Stats. Ann. §3-261 
(g)].  Carroll v. Schneider, supra. However, if a can­
didate has complied with the filing statutes the election 
commission has a duty to certify him as a candidate and 
see that his name is placed on the ballot [Ark. Stat. Ann. 
§3-261(g)].

Appellant admits that it is proper for the election com­
mission to refuse to accept his papers and to list his name 
on the ballot if he has not paid his filing fee and pre­
sented the receipt to the election commissioners. How­
ever, appellant contends that since appellee Burns at­
tempted to instruct appellant as to the proper procedure 
for filing then the election commission should be estopped 
from disqualifying him when the advice turned out to be 
incorrect. The record does not clearly indicate that Mr. 
Burns instructed appellant to pay his tax with the City 
Treasurer of Star City, Arkansas, but the record reflects 
that Mr. Burns stated that he was not familiar with the 
procedure and directed Mrs. Dillworth to Mr. John Car­
ter for further information. It is also clear from the 
record that Mrs. Dillworth was much more instrumental 
in taking appellant to Mr. Carter than Mr. Burns was 
(R.39).



12

County Election Commissions can only look at the 
election papers filed with them and see if there is a prima 
facie showing that they are correct. Carroll v. Schneider, 
211 Ark. 538, 201 S.W. 2d 221. I f the County Election 
Commission finds that the papers are not correct on their 
face, then they cannot receive these papers for filing and 
also cannot place the name of the candidate on the ballot. 
It is clear from the Eecord that Appellant had not paid 
his filing fee pursuant to law and therefore the County 
Election Commission could under no circumstances place 
his name on the ballot without violating its duty and the 
law.

A candidate has a duty to see that his papers are in 
order before he files for an office with the County Elec­
tion Commission. Here Appellant attempted to comply 
with the law and get his papers in order, but in fact when 
he filed his papers he had paid his filing fee in the wrong 
place. When the fee was paid in the wrong place, Ap­
pellant in effect had not paid it at all under the law and 
therefore the County Election Commission was correct in 
finding that the papers were not correct on their face and 
therefore correct by not allowing Appellant’s name to ap­
pear on the ballot. The County Election Commission did 
not punish the Appellant, but only followed the Arkansas 
law. The County Election Commission did not waive the 
right to disqualify Appellant when one of the Commis­
sioners accepted the Appellant’s papers because the 
County Election Commission has no power or right to 
waive a State statute. The County Election Commis­
sion only did its duty when it disqualified Appellant be­
cause he had not complied with the State statute (Ark. 
Stat. Ann. §3-261) and the District Court was correct in 
upholding Appellant’s disqualification.



13

IV

The District Court was correct ivhen it did not find the
action of appellees ivas based on racial prejudice.

Appellant contends that the intent, purpose and re­
sults of the appellee Election Commissioners was to dis­
qualify appellant from running for office because of his 
race and color. Nowhere in the record can we find any 
racial overtones. Appellees contend that it is only inci­
dental that appellant was a Negro and that certainly his 
disqualifications as a candidate was not based on race. 
In support of this contention the Court need only to look 
at the 1964 General Election when two Negro candidates 
were qualified to seek public offices (R.21, 34, 35 and 36). 
Further, there is nothing in the record to indicate that 
appellant was treated differently than any other citizen 
would have been treated under the same or similar cir­
cumstances. It is appellee’s contention that appellant 
was disqualified because he had not complied with the Ar­
kansas election law which requires paying a filing fee 
(Ark. Stat. Ami. §3-261) and not because of his race.

The record does not reflect it, but it is further our 
contention that the reason no white candidates were dis­
qualified is because they complied with the above law. It 
is clear from, the record that Mr. Burns, the Chairman of 
the Election Commission, informed appellant the office a 
candidate had not filed for (R.31 and 73). Surely there 
could be no discrimination when an election official tells 
a candidate of an office he may file for in which he would 
be unopposed. It is further clear that there was no dis­
crimination because appellant did qualify as a write- 
in candidate by complying with the Arkansas election laws 
(R.59). There is no reason to believe that the election 
officials would discriminate against appellant in one in­



14

stance and not discriminate against him in other instances, 
and the fact that he qualified as a write-in candidate 
points out that the actions of the election officials were 
not discriminatory.

It is unfortunate that Mr. Burns, as Chairman of the 
Lincoln County Election Commission, was not better 
versed in the Arkansas election laws. Appellee is con­
vinced that Judge Henley was correct when he stated that 
the action taken by Mr. Burns really amounts to no more 
than “negligence and disregard for the interest of the 
plaintiff”  (R.72). The record further reflects that Mr. 
Burns did not unconditionally tell appellant to file with 
the City Treasurer of Star City, Arkansas (R.27). In 
fact, on cross examination Mr. Burns answered questions 
by appellant’s attorney and stated that he did not know 
for sure where the correct place to file was at the time of 
the election (R.41), and further Mr. Burns, on direct exami­
nation, by his answers to the questions, showed that he 
was not then nor is he now very familiar with the elec­
tion laws (R.39 and 47). The record also indicates that 
Mr. Carter, the City Treasurer of Star City, Arkansas, 
questioned the propriety of paying the filing fee at his 
office (R.48).

There have been no instances in Lincoln County, Ar­
kansas, of Negroes who have been excluded from the right 
to run for public office according to one of appellant’s own 
witnesses’ testimony (R.34). Further, two members of 
the Lincoln County Election Commission testified that no 
Negroes had been excluded from runnng for public office 
in Lincoln County, Arkansas (R.39, 47 and 49).

Appellant has also assumed other alleged racial dis­
crimination policies in Lincoln County, Arkansas, which 
are not supported by the record and could only be con­
sidered by appellees and this Court as unfounded assump­



15

tions and therefore given no weight. Appellee finds 
nothing in the record to support appellant’s position that 
he was disqualified because he was a Negro. The record 
fully reflects that appellant was disqualified because he 
had not complied with the State law.

v

This appeal should he dismissed because the question is 
note moot and because the relief prayed for could 
now he granted.

Appellant prayed in his complaint for the following 
relief:

(1) Enjoin defendants from refusing to certify plain­
tiff as a bona fide candidate for Position No. 3, 
Justice of the Peace of Gould, Arkansas Town­
ship, for the November 8, 1966, election;

(2) Enjoin defendants from refusing or failing to put 
plaintiffs name on the ballot as a candidate for 
the Office of Justice of the Peace, Position No. 3 
of the Gould Township for the November 8, 1966, 
election; and from proceeding to have ballots for 
the November 8, 1966, election printed which 
omit plaintiff’s name therefrom; (R.3).

and if this appeal were successful for the Appellant such 
relief could not be granted at this time. The election was 
held on November 8, 1966, and Appellant was qualified as 
a write-in candidate as was his opponent. After the bal­
lots were counted, Appellant’s opponent was found to 
have received the largest number of votes and was later 
declared elected. Since the election has been held, it is 
clear that the Court could not issue the injunction prayed 
for by the Appellant. Therefore, a decision in favor of



16

the Appellant would not change anything that has oc­
curred in the election of 1966 and would in no way affect 
the rights of the Appellant. It is the contention of the 
Appellee’s that this Court should not consider this appeal 
on its merits because the question is now moot. It has 
long been the practice of the federal appellate courts not 
to hear moot questions. Howard v. Wilbur et al., 166 F. 
2d 884 (1948); Mills v. Green, 159 U.S. 651, 16 S. Ct. 132 
40 L. Ed. 293; Colpo v. Highway Truck Drivers and Help­
ers Local 107 of International Brothers of Teamsters of 
America, 305 F. 2d 362, cert, denied 83 S. Ct. 188, 371 U.S. 
890, 9 L. Ed 2d 123 (1962)



17

CONCLUSION

It is Appellee’s contention that this appeal should be 
dismissed because the questions presented are now moot 
since the election has been held or in the alternative Ap­
pellee contends that the Judgment of the District Court 
should he affirmed.

Respectfully submitted,

J oe P ubcell

Attorney General of Arkansas

R. D. S m it h  III 
Assistant Attorney General

Justice Building 
Little Rock, Arkansas

Attorneys for Appellees