Allen v. State Board of Elections Jurisdictional Statement

    s>  ! /  I

I n  t h e

(Emort ni te  States
October Term, 1967 

No.......

R ichard A l l e n , et al.,

v.
Appellants,

S tate B oard oe E lections, et al.

ON APPEAL FROM T H E  U N ITED  STATES DISTRICT COURT 

FOR T H E  EASTERN DISTRICT OF VIRGINIA

JURISDICTIONAL STATEMENT

J ack Greenberg 
J ames M. N abrit, I I I  

10 Columbus Circle 
New York, New York 10019

Oliver W , H ill  
S. W . T ucker  
H enry  L. M arsh , I I I  
H arold M. M arsh

214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Appellants
F red W allace 
J ames N. F in n ey  

Of Counsel



I N D E X

PAGE

Opinion Below.................................................- .............  1

Jurisdiction ....................................................................  2

Constitutional and Statutory Provisions Involved ..... 3

Questions Presented ...................................................... 9

Statement of the Case .................................................... 10

The Questions Are Substantial:
Introduction ............................................................. 15

I. The Handwriting Requirement of Virginia Code 
Section 24-252 Was Suspended by the Voting 
Rights Act of 1965 ............- ................................  18

II. Virginia Code Section 24-252 Hoes Not Afford 
Appellants, VTho Are Unable to Spell Accurately 
and Write Legibly, Equal Protection for the 
Secrecy of Their Ballots.....................................  25

C onclusion  ...................................... -...............................................  30

A ppen d ix  :

Memorandum Opinion......................-......-........... — la
Judgment ................................. -.............................  2a



11

PAGE
Table of Cases:

Bates v. Little Bock, 361 U.S. 516................................27-28

Carrington v. Rash, 380 U.S. 89 ................ ................... 22

Ex parte Yarbrough, 110 U.S. 651 ................................ 15

Griffin v. School Board, 377 U.S. 218........... ................. 25

Harman v. Forssenius, 380 U.S. 528 .......................2,15, 29

Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S.
713 ............................................................................... 2

In re Massey, 45 F. 629 (E.D. Ark. 1890) ..................... 26

Johnson v. Clark, 25 F. Supp. 285 (N.D. Tex. 1938) .... 26

Lassiter v. Northampton Election Bd., 360 U.S. 45___  14
Louisiana v. United States, 380 U.S. 145...... ................  24

N.A.A.C.P. v. Alabama, 357 U.S. 449 .......................... 16, 27

Pearson v. Board of Supervisors of Brunswick County,
91 Va. 334, 21 S.E. 483 (1895) ..........   23

Query v. United States, 316 U.S. 486 .........................   2

Reynolds v. Sims, 377 U.S. 533 ...................................  15

Shelton v. Tucker, 364 U.S. 479 ............ ...................... 27, 28
South Carolina v. Katzenbach, 383 U.S. 301 ..... ...12,15, 20
Stratton v. St. Louis-Southwestern. Ry. Co., 282 U.S. 10 2

Talley v. California, 362 U.S. 60 ................_____............ 16,27
Taylor v. Bleakley, 55 Kan. 1, 39 P. 1045 (1895) ...........  27



Ill

PAGE

United States v. Classic, 313 U.S. 299 ............................  19
United States v. Executive Com. of Dem. P. of Greene 

County, Ala., 254 F. Supp. 543 (N.D. & S.D. Ala.
1966) ...........................................................................  24

United States v. Mosely, 238 U.S. 383 ........................ 15,19

Voorhes v. Dempsey, 231 F. Supp. 975 (D. Conn. 1964) 26

Tick Wo v. Hopkins, 118 U.S. 356 ................................ 15

Zwickler v. Koota, No. 29, Oct. Term, 1967 .................  16

Statutes:
Constitution of the United States, Art. I, section 4, 

clause 1 ....................................................................... 4, 21
2 U.S.C. §9...............................................................5, 26, 27
28 U.S.C. §1253 ...........................................................  2
28 U.S.C. §§1331, 1343, 2201 .......................................  2
28 U.S.C. §2101 (b) .......................... ..............................  2
28 U.S.C. §§2281, 2284 ..............................      2
42 U.S.C. §1971(a)(2)(B) ............................................  22
42 U.S.C. §1971(a) (3) (A) ........................    22
42 U.S.C. §1971 (e) .................        22
42 U.S.C. §1973, Voting Rights Act of 1965 .............. 2
42 U.S.C. §1973b .....................................   12
42 U.S.C. §1973!)(a) .......      ....5-6,17,18
42 U.S.C. §1973b(b) ............   7,12
42 U.S.C. §1973b(c) ........    7,14,18



IV

PAGE

42 U.S.C. §1973c .........................................................7_8; 20

42 IT.S.C. §1973i(a) ....................................................... 9? 19

42 IT.S.C. §1973/(c) (1) ..................................................9 ,18

Act of February 28, 1871, 16 Stat. 440 .... ...................  26
Constitution of Virginia, § 20 ........................   17 21

Constitution of Virginia, §27...................................4 ,17; 26
Constitution of Virginia, §28..............       4f 17

Code of Virginia 1950, §24-25 ................... ..... ..............  12

Code of Virginia 1950, §24-30 ........... ........... ...... 16
Code of Virginia 1950, §24-68 ......... ........... ................17; 21

Code of Virginia 1950, §24-71 ............... .......................  17

Code of Virginia 1950, §24-251 ........... .................... 3? 13; 23

Code of Virginia 1950, §24-252 ..... ......2, 3, 9,10,11,14,18,
19, 20, 21, 25, 28

Other Authorities:
30 Fed. Reg. 9897 ............ ..................... ......  i 2 17

Cong. Globe, 41st Cong. 3d Sess. (1871) ..... ............. 26, 27



1 st t h e

(&mxt of %  In itio  States
October Term, 1967 

No.............

R ichard A l l e n , et al.,

V.
Appellants,

S tate B oard of E lections, et al.

on appeal from t h e  u n ited  states district court

FOR T H E  EASTERN DISTRICT OF VIRGINIA

JURISDICTIONAL STATEMENT

Appellants appeal from the final judgment of the United 
States District Court for the Eastern District of Virginia 
entered on May 2, 1967, denying their prayers for injunc­
tive relief and a declaratory judgment and dismissing the 
case, and submit this statement to show that the Supreme 
Court of the United States has jurisdiction of the appeal 
and that substantial questions are presented.

Opinion Below

The opinion of the District Court for the Eastern Dis­
trict of Virginia is reported at 268 F. Supp. 218. Copies 
of the Opinion and Judgment of the District Court are 
attached hereto, Appendix pp. la  to 9a.



2

Jurisdiction

This is an action for injunctive and declaratory relief 
in which the jurisdiction of the District Court was invoked 
under 28 U.S.C. §§1331, 1343, 2201 to enforce rights pro­
tected by the equal protection clause of the Fourteenth 
Amendent and the Voting Rights Act of 1965 (42 U.S.C. 
§§1973, et seq.). The complaint sought to restrain the 
Virginia State Board of Elections and other election offi­
cials from enforcing a state statute, Va. Code §24-252, 
insofar as it authorized the officials not to count write-in 
votes unless they were inserted on the ballot in the voters’ 
own handwriting. A statutory three-judge court was con­
vened pursuant to 28 U.S.C. §§2281, 2284 (R. 20).

A final judgment of the court below denying injunctive 
relief and dismissing the case was entered May 2, 1967 
(R. 90). Timely notice of appeal to this Court was filed 
in the court below on June 29, 1967 (28 U.S.C. §2101 (b)) 
(R. 91). The District Court, by order dated August 24, 
1967, extended the time for docketing the appeal in this 
Court to September 28, 1967 (R. 96).

The jurisdiction of this Court to review this decision 
by direct appeal is conferred by 28 U.S.C. §1253. This 
Court’s jurisdiction is sustained by Harman v. Forssenius, 
380 U.S. 528, 532-533; see also, Idlewild Bon Voyage Liquor 
Corp. v. Epstein, 370 U.S. 713; Query v. United States, 316 
U.S. 486; Stratton v. St. Louis-Southwestern By. Co., 
282 U.S. 10.



3

Constitutional and Statutory 
Provisions Involved

1. This ease involves the validity of Code of Virginia, 
1950, §24-252 (Code of Va. 1964 Repl. Vol. 5, p. 271), 
which provides as follows:

§24-252. Insertion of names on ballots.—At all elec­
tions except primary elections it shall be lawful for 
any voter to place on the official ballot the name of 
any person in his own handwriting thereon and to 
vote for such other person for any office for which he 
may desire to vote and mark the same by a check (y )  
or cross ( X or +) mark or a line (—) immediately 
preceding the name inserted. Provided, however, that 
nothing contained in this section shall affect the oper­
ation of §24-251 of the Code of Virginia. No ballot, 
with a name or names placed thereon in violation of 
this section, shall be counted for such person. (Code 
1919, §162; 1936, p. 278; 1952, c. 581; 1962, c. 536.)

2. The following additional provisions are material to 
an understanding of the issues presented.

(a) Code of Virginia, §24-251:
§24-251. Judges or others to assist certain voters.— 

Any person registered prior to the first of January, 
nineteen hundred and four, and any person registered 
thereafter who is physically unable to prepare his 
ballot without aid, may, if he so requests, be aided 
in the preparation of his ballot by one of the judges 
of election designated by himself, and any person 
registered, who is blind, may, if he so requests, be 
aided in the preparation of his ballot by a person of 
his choice. The judge of election, or other person, so



4

designated shall assist the elector in the preparation 
of his ballot in accordance with his instructions, but 
the judge or other person shall not enter the booth 
with the voter unless requested by him, and shall not 
in any manner divulge or indicate, by signs or other­
wise, the name or names of the person or persons for 
whom any elector shall vote. For a corrupt violation 
of any of the provisions of this section, the person so 
violating shall be deemed guilty of a misdemeanor and 
be confined in jail not less than one nor more than 
twelve months. (Code 1919, §166; 1946, p. 316; 1950, 
p. 230.)

(b) Constitution of Virginia, §§27, 28:
“§27. Method of Voting.—All elections by the people 

shall be by ballot; * * *
“The ballot box shall be kept in public view during 

all elections, and shall not be opened, nor the ballots 
canvassed or counted, in secret.

So far as consistent with the provisions of this Con­
stitution, the absolute secrecy of the ballot shall be 
maintained.”

“§28. Ballots.—The General Assembly shall provide 
for ballots without any distinguishing mark or symbol, 
for the use in all State, county, city and other elections 
by the people, and the form thereof shall be the same 
in all places where any such election is held. All ballots 
shall contain the names of the candidates and of the 
offices to be filled, in clear print and in due and orderly 
succession; but any voter may erase any name and 
insert another.”

(c) Constitution of the United States, Art. I, Sec­
tion 4, Clause 1:

S ection  4. Clause 1. The Times, Places and Man­
ner of holding Elections for Senators and Repre-



5

sentatives, shall be prescribed in each State by the 
Legislature thereof; but the Congress may at any time 
by Law make or alter such Regulations, except as to 
the Places of chusing Senators.

(d) Title 2, U.S.C., §9:
§9. Voting for Representatives.—All votes for Rep­

resentatives in Congress must be by written or printed 
ballot, or voting machine the use of which has been 
duly authorized by the State law; and all votes re­
ceived or recorded contrary to this section shall be 
of no effect. (R. S. §27; Feb. 14, 1899, c. 154, 30 Stat. 
836.)

(e) Title 42, U.S.C., §1973b(a), (b), (c ):
%1973b. Suspension of the use of tests or devices in 

determining eligibility to vote—Action by state or 
political subdivision for declaratory judgment of no 
denial or abridgement; three-judge district court; ap­
peal to Supreme Court; retention of jurisdiction by 
three-judge court

(a) To assure that the right of citizens of the 
United States to vote is not denied or abridged on 
account of race or color, no citizen shall be denied 
the right to vote in any Federal, State, or local elec­
tion because of his failure to comply with any test 
or device in any State with respect to which the 
determinations have been made under subsection (b) 
of this section or in any political subdivision with 
respect to which such determinations have been made 
as a separate unit, unless the United States District 
Court for the District of Columbia in an action for a 
declaratory judgment brought by such State or sub­
division against the United States has determined 
that no such test or device has been used during the



6

five years preceding the filing of the action for the 
purpose or with the effect of denying or abridging 
the right to vote on account of race or color: Pro­
vided, That no such declaratory judgment shall issue 
with respect to any plaintiff for a period of five 
years after the entry of a final judgment of any 
court of the United States, other than the denial 
of a declaratory judgment under this section, whether 
entered prior to or after the enactment of this sub­
chapter, determining that denials or abridgments 
of the right to vote on account of race or color 
through the use of such tests or devices have oc­
curred anywhere in the territory of such plaintiff.

An action pursuant to this subsection shall be 
heard and determined by a court of three judges in 
accordance with the provisions of section 2284 of 
Title 28 and any appeal shall lie to the Supreme 
Court. The court shall retain jurisdiction of any ac­
tion pursuant to this subsection for five years after 
judgment and shall reopen the action upon motion of 
the Attorney General alleging that a test or device 
has been used for the purpose or with the effect of 
denying or abridging the right to vote on account 
of race or color.

If the Attorney General determines that he has 
no reason to believe that any such test or device has 
been used during the five years preceding the filing 
of the action for the purpose or with the effect of 
denying or abridging the right to vote on account of 
race or color, he shall consent to the entry of such, 
judgment.
Required factual determinations necessary to allow 
suspension of compliance with tests and devices; 
publication in Federal Register



7

(b) The provisions of subsection (a) of this sec­
tion shall apply in any State or in any political 
subdivision of a state which (1) the Attorney Gen­
eral determines maintained on November 1, 1964, 
any test or device, and with respect to which (2) the 
Director of the Census determines that less than 
50 per centum of the persons of voting age residing 
therein were registered on November 1, 1964, or 
that less than 50 per centum of such persons voted 
in the presidential election of November 1964.

A determination or certification of the Attorney 
General or of the Director of the Census under this 
section or under section 1973d or 1973k of this title 
shall not be reviewable in any court and shall be 
effective upon publication in the Federal Register.
Definition of test or device

(c) The phrase “test or device” shall mean any 
requirement that a person as a prerequisite for 
voting or registration for voting (1) demonstrate 
the ability to read, write, understand, or interpret 
any matter, (2) demonstrate any educational achieve­
ment or his knowledge of any particular subject, 
(3) possess good moral character, or (4) prove his 
qualifications by the voucher of registered voters 
or members of any other class.
(f) Title 42, U.S.C., §1973c:
§1973c. Alteration of voting qualifications and 

procedures; action by state or political subdivision 
for declaratory judgment of no denial or abridgement 
of voting rights; three-judge district court; appeal to 
Supreme Court

Whenever a State or political subdivision with 
respect to which the prohibitions set forth in sec-



8

tion 1973b(a) of this title are in effect shall enact 
or seek to administer any voting qualification or 
prerequisite to voting, or standard, practice, or 
procedure with respect to voting different from that 
in force or effect on November 1, 1964, such State 
or subdivision may institute an action in the United 
States District Court for the District of Columbia 
for a declaratory judgment that such qualification, 
prerequisite, standard, practice, or procedure does 
not have the purpose and will not have the effect 
of denying or abridging the right to vote on account 
of race or color, and unless and until the court en­
ters such judgment no person shall be denied the 
right to vote for failure to comply with such qualifi­
cation, prerequisite, standard, practice, or proce­
dure: Provided, That such qualification, prerequi­
site, standard, practice, or procedure may be en­
forced without such proceeding if the qualification, 
prerequisite, standard, practice, or procedure has 
been submitted by the chief legal officer or other 
appropriate official of such State or subdivision to 
the Attorney G-eneral and the Attorney General has 
not interposed an objection within sixty days after 
such submission, except that neither the Attorney 
General’s failure to object nor a declaratory judg­
ment entered under this section shall bar a subse­
quent action to enjoin enforcement of such qualifi­
cation, prerequisite, standard, practice, or proce­
dure. Any action under this section shall be heard 
and determined by a court of three judges in ac­
cordance with the provisions of section 2284 of 
Title 28 and any appeal shall lie to the Supreme 
Court. Pub.L. 89-110, §5, Aug. 6, 1965, 79 Stat. 439.



9

(g) Title 42, U.S.C., 1973Z(c)(l):
Definitions

(c) (1) The terms “vote” or “voting” shall include 
all action necessary to make a vote effective in any 
primary, special, or general election, including, but 
not limited to, registration, listing pursuant to this 
sub-chapter, or other action required by law prereq­
uisite to voting, casting a ballot, and having such 
ballot counted properly and included in the appro­
priate totals of votes cast with respect to candidates 
for public or party office and propositions for which 
votes are received in an election.

(h) Title 42, U.S.C., §1973i(a):
§1973i. Prohibited acts—Failure or refusal to per­

mit casting or tabulation of vote

(a) No person acting under color of law shall fail 
or refuse to permit any person to vote who is en­
titled to vote under any provision of this sub­
chapter or is otherwise qualified to vote, or willfully 
fail or refuse to tabulate, count, and report such 
person’s vote.

Questions Presented

I.
Whether the requirement of Virginia Code section 24-252, 

that write-in votes be in the voters’ own handwriting, is 
in conflict with the provisions of the Voting Rights Act 
of 1965 forbidding denial of the right to vote for failure 
to comply with “tests or devices” as defined in the Act?



10

II.
Whether Virginia Code section 24-252 unconstitutionally 

discriminates against illiterates by failing to provide equal 
protection for the secrecy of their ballots in violation of 
the Fourteenth Amendment to the Constitution of the 
United States?

Statement of the Case

This litigation involves the claim of certain illiterate 
registered voters, newly eligible to vote because of the pro­
visions of the Voting Eights Act of 1965, that Virginia 
election law unlawfully discriminated against them. They 
object to the lack of any procedures for protecting the 
privacy and secrecy of illiterates’ write-in votes from dis­
closure to state officials. The issues arose in the context 
of a general election for members of the House of Repre- 
sentatives which was held November 8, 1966, in Virginia’s 
Fourth Congressional District. Rep. Watkins M. Abbitt, 
the incumbent, and Edward J. Silverman were the candi­
dates listed on the ballot. The plaintiff-appellants were 
supporters of S. W. Tucker, a well-known civil rights at­
torney in Virginia who was a write-in candidate for Con­
gress. The plaintiffs, as the court below found, were 
“unable to spell accurately or to write legibly” (268 F. 
Supp. at 219). They sought to vote for S. W. Tucker by 
pasting a sticker, upon which his name was printed, on 
the official ballot under the names of the listed candidates, 
and then making the appropriate marking preceding his 
name (R. 9-17). The defendant election officials did not 
count the votes for Tucker on ballots marked with the 
Tucker stickers. They disallowed the ballots, relying on 
Virginia Code section 24-252, which permits the insertion 
of names on general election ballots in the voter’s “own



11

handwriting,” and provides that ballots with a name placed 
thereon “in violation” of the section shall not be counted 
for such person. According to the statement published 
by the defendant Board of Elections, the 1966 congres­
sional election was won by Rep. Abbitt with 45,226 votes; 
Mr. Silverman drew 14,827 votes, and 7,907 write-in votes 
were counted (R. 61, Pi’s Exhibit No. 2, p. 9).

This action was commenced November 28, 1966, shortly 
after the election. Plaintiffs prayed in their complaint, 
inter alia, for a judgment declaring Virginia Code section 
24-252 invalid and in conflict with the equal protection 
clause of the Fourteenth Amendment and also the Voting 
Rights Act of 1965, insofar as the Virginia law “purports 
to deny any voter, solely because of his inability to write, 
the privilege of casting a secret ballot for a person whose 
name is not printed on the official ballots and having such 
ballot counted in the appropriate returns; . . .” (R. 7); 
and prayed that the court enjoin defendants from failing 
and refusing to count votes inserted on official ballots “by 
means other than handwriting” in the November 1966 
election, and such votes “hereafter given” in future elec­
tions (R. 8). By their subsequent motion for summary 
judgment, appellants indicated that they mainly sought 
relief for future elections and not for the 1966 election 
(R. 69).

A statutory three-judge district court was convened to 
hear and determine the case (R. 20-21). The plaintiffs 
submitted requests for admissions under Rule 36 (R. 38- 
47), none of which were denied under oath by the defen­
dants (R. 49-56). The defendant State Board of Elections 
had the statutory duty to supervise and coordinate the 
work of county and city electoral boards to obtain uni­
formity in their practices and proceedings and to make 
rules and regulations for their functioning. (Code of



12

Virginia, 1950, §24-25.) The other defendants were judges 
of election and clerks of election in precincts in which the 
plaintiffs resided. The requests for admissions developed 
the facts with respect to the use of Tucker stickers by 
illiterate voters in several areas where paper ballots were 
used, and that such votes were not counted. The court 
below treated the facts as undisputed (268 F. Supp. at 
219).

By way of defense, the State Board of Elections offered 
in evidence several letters or bulletins which it had dis­
tributed to local voting officials during the summer of 1965 
after the passage of the Voting Bights Act. One letter to 
all voting registrars advised that Virginia’s prior registra­
tion procedures could no longer be used, and that if appli­
cants were unable to complete registration forms the 
registrar should orally examine the applicant and assist 
him in completing the registration forms (B. 65). The 
Voting Bights Act provisions which prompted the above 
mentioned letter were those which temporarily forbade the 
use of literacy tests or devices in states to which the Act 
was made applicable. (42 U.S.C. §1973b.) And, of course, 
the Voting Bights Act, designed to end racial discrimina­
tion in voting, was applicable in Virginia.1

1 The designation of Virginia under §1973b(b) was published in the 
Federal Register on August 7, 1965, 30 Fed. Reg. 9897. in  describing the 
history which led to passage of the Act this Court said in South Carolina 
v. Katzenbaeh, 383 U.S. 301, 310-311:

Meanwhile, beginning in 1890, the States of Alabama, Georgia, 
Louisiana, Mississippi, North Carolina, South Carolina and Virginia 
enacted tests still in use which were specifically designed to prevent 
Negroes from voting. Typically, they made the ability to read and 
write a registration qualification and also required completion of a 
registration form. These laws were based on the fact that as of 1890 
in each of the named States, more than two-thirds of the adult Negroes 
were illiterate while less than one-quarter of the adult whites were un­
able to read or write. (Footnotes omitted.)



13

The State Board of Elections also introduced a bulletin 
to election judges dated October 15, 1965 (R. 68). The 
bulletin was supplied to voting registrars and secretaries 
of electoral boards for them to distribute to judges of 
elections (R. 66-67). The bulletin stated:

B ulletin- F rom S tate B oard of E lections

To A ll J udges oe E l e c t io n :

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

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

There was no evidence in the record indicating to what 
extent, if any, the public was advised of the rule and policy 
set forth in the bulletin to election judges. Neither is 
there anything in the record indicating whether or not any 
instructions similar to those stated in the 1965 bulletin 
were reissued at the time of the 1966 congressional election 
or whether voters had any way of knowing that election



14

judges were instructed to assist illiterates in completing 
their ballots. The court below merely found that “The 
Attorney General of Virginia asserted, and the plaintiffs 
do not controvert, that these instructions apply while the 
Voting Rights Act of 1965 is effective in the state.” (268 
F. Supp. at 221.)

The district court denied the relief prayed and dis­
missed the case. The court rejected appellants’ claim of 
unconstitutional discrimination against illiterates, citing 
the decision in Lassiter v. Northampton Election Bd., 360 
U.S. 45, for the proposition that discrimination between 
illiterate and literate voters does not violate the Four­
teenth Amendment. (268 F. Supp. at 220.) The court also 
rejected appellants’ argument that Virginia Code section 
24-252 was rendered invalid by the Voting Rights Act of 
1965. The court held that the Virginia requirement that 
the write-in candidate’s name be inserted in the voter’s 
own handwriting was “not a test or device defined in 42 
U.S.C. §1973b(c).” (268 F. Supp. at 221.) The court said 
that the requirement did not prevent the appellants from 
registering and voting, and that the Board of Elections’ 
bulletin provided for them to be assisted by election judges 
in casting ballots.



15

The Questions Are Substantial 

Introduction

At stake in this ease are the claims of educationally de­
prived voters, who cannot spell accurately or write legibly, 
that they have the same right to vote for the candidates of 
their choice, to have their votes counted, and to protect the 
secrecy of their ballots from state election judges as do 
other voters.

The questions presented are of public importance from 
several points of view. First, of course, the right to vote 
and have one’s vote counted is at stake. The Court has 
long recognized the constitutional protection for such rights 
(Ex parte Yarbrough, 110 U.S. 651; United States v. 
Mosely, 238 U.S. 383), and has on innumerable occasions 
stated the importance of protecting the right to vote. See, 
e.g., Yick Wo v. Hopkins, 118 U.S. 356, 370, calling the 
right to vote important “because preservative of all rights.” 
And see Reynolds v. Sims, 377 U.S. 533, 555; Harman v. 
Forssenius, 380 U.S. 528.

Second, the case involves the rights of numerous persons 
newly enfranchised by the Voting Rights Act of 1965, who 
had long been disenfranchised by a host of discriminatory 
measures in Virginia and other states,2 and presents serious 
questions regarding the interpretation and application of 
that important federal law. It is appropriate that this 
Court give guidance by construing the law.

Third, the case involves the secrecy of the ballot. The 
Court has not, to our knowledge, had a previous occasion 
to deal with threats to the secrecy of the ballot, but it has,

2 See, e.g., Harman v. Forssenius, 380 U.S. 528; South Carolina v. 
Katzenbach, 383 U.S. 301, 310-311 (quoted supra, note 1).



16

of course, dealt with the kindred question of the right to 
anonymity in political expression, Talley v. California, 362 
U.S. 60; N.A.A.C.P. v. Alabama, 357 TJ.S. 449, and has 
agreed to hear a case this term involving attempted sup­
pression of anonymous election literature. Zwickler v. 
Koota, No. 29, Oct. Term 1967. The right of a secret ballot 
is of considerable practical moment for political dissidents, 
such as appellants, who were supporters of a write-in can­
didate opposing an incumbent who had served ten consecu­
tive terms.3 In such circumstances the right to keep one’s 
vote secret from a state election judge belonging to the 
dominant political group is of more than abstract im­
portance. Virginia election judges are appointed by local 
electoral boards under a statute which directs that repre­
sentation be given to the two leading political parties in the 
last election, Va. Code §24-30.

This controversy arises from the fact that Virginia, hav­
ing been required to permit illiterates to vote by the Voting 
Eights Act of 1965 because the state permitted only white 
illiterates to vote in the past, failed to provide a method 
to protect the secrecy of illiterates’ votes from state officials, 
and disallowed the votes of appellant who sought to vote 
secretly for a write-in candidate by inserting paper stickers 
bearing the candidate’s name, on their ballots. By way of 
introduction to the issue presented, we point out several 
undisputed matters. First, it is agreed that in accordance 
with the Voting Eights Act of 1965 appellants are entitled 
to vote in their respective counties, notwithstanding their 
illiteracy. Until 1965 Virginia excluded illiterates from 
voting; the state Constitution and statutes required that 
applicants for voting registration, except those physically

3 The Hon. Watkins Abbitt, Representative from Virginia’s Fourth 
Congressional District has served in office since the 80th Congress.



17

unable, must apply in their “own handwriting.”4 But those 
provisions were suspended by the federal Voting Bights 
Act of 1965 which became applicable in Virginia August 
7, 1965. 42 U.S.C. §1973b(a); 30 Fed. Beg. 9897. Second, 
the facts are not in dispute, and it was found by the court 
below that appellants were unable to write, that they did 
insert votes for a write-in candidate, S. W. Tucker, by using 
gummed stickers or labels bearing his name, and that their 
votes were not tabulated or counted for Tucker. Third, the 
background of Virginia law relevant to the case includes 
(1) a state constitutional provision that elections “shall be 
by ballot” and that “the absolute secrecy of the ballot shall 
be maintained” (Const, of Va., §27); and (2) a state con­
stitutional provision permitting write-in votes (Const, of 
Va., §28).

4 Constitution of Virginia, section 20, provides in part, as follows:

§ 20. Who may register.—Every citizen of the United States, hav­
ing the qualifications of age and residence required in section eight­
een, shall be entitled to register, provided:

Second. That, unless physically unable, he make application to 
register in his own handwriting, on a form which may be provided 
by the registration officer, without aid, suggestion, or other memo­
randum, in the presence of the registration officer, stating therein his 
name, age, date and place of birth, residence and occupation at the 
time and for the one year next preceding, and whether he has previ­
ously voted, and, if so, the State, county, and precinct in which he 
voted last; and, * * *”

The provision was implemented by statutes. Virginia Code of 1950, sec­
tions 24-68, 24-71.



18

I

The Handwriting Requirement Of Virginia Code Sec­
tion 24-252 Was Suspended By The Voting Rights Act 
Of 1965.

It is appellants’ submission that the Virginia Statute 
which authorized the election officials not to count their 
ballots (Code section 24-252) was suspended on August 7, 
1965 when Virginia was brought under the coverage of the 
Voting Rights Act of 1965. They seek an injunction and a 
declaratory judgment holding that statute invalid and re­
straining its enforcement on this statutory ground as well 
as on the constitutional grounds argued in Part II, infra. 
Appellants’ constitutional argument involves the secrecy of 
the ballot. The Voting Rights Act argument does not turn 
on the secrecy issue but does strike at the state law which 
was used to invalidate appellants’ ballots and thus supports 
their right to vote effectively and in secret.

Section 4(a) of the Voting Rights Act of 1965, 42 U.S.C. 
§1973b(a) (quoted supra pp. 5-6) provides that “no citizen 
shall be denied the right to vote . . . because of his failure 
to comply with any test or device.” Section 4(c) of the 
Act, 42 U.S.C. §1973b(c) (supra p. 7), defines the phrase 
“test or device” to mean “any requirement that a person 
as a prerequisite for voting or registration for voting (1) 
demonstrate the ability to read, write, understand, or in­
terpret any matter, (2) demonstrate any educational 
achievement or his knowledge of any particular subject.. . .” 
Section 14(c) (1) of the act, 42 U.S.C. §19731(c) (1) (quoted 
at p. 9 above), defines the terms “vote” and “voting” to 
“include all action necessary to make a vote effective . . . 
including, but not limited to registration, listing pursuant 
to this Act, or other action required by law prerequisite to



19

voting, casting a ballot, and having such ballot counted 
properly and included in the appropriate totals of votes 
cast . . (emphasis added). Finally, section 11(a) of the 
Act, 42 U.S.C. §1973i(a) (quoted above, p. 9), prohibits 
a refusal to count the vote of anyone who is entitled to vote 
under the Act.

The court below held that the requirement of Ya. Code 
section 24-252, that write-in votes be inserted in the voters 
“own handwriting,” was not a “test or device” within the 
meaning of section 4 of the Voting Eights Act. The court 
seemed to rest its conclusion on the assertion that “ [t’Jhe 
requirement of [Ya. Code §24-252] did not preclude the 
plaintiffs from registering or from voting” (268 F. Supp. 
at 221-222). This answer, we submit, is plainly insufficient. 
The appellants were precluded from voting, if “voting” is 
defined as in the Voting Eights Act and in normal usage to 
mean casting an effective ballot and having it counted. As 
indicated above, section 14(c)(1) of the Voting Eights Act 
of 1965 includes everything necessary to have a vote counted 
within the term “voting.” Moreover, this usage is consistent 
with that in decisions of this Court over a long period of 
years. See United States v. Mosely, 238 U.S. 383; United 
States v. Classic, 313 U.S. 299, 315.

The opinion below seeks, in part, to avoid the thrust of 
appellants’ argument that the handwriting requirement is 
a “test or device” under Section 4 of the Voting Eights Act 
by pointing to the fact that on October 15, 1965 the Board 
of Elections ordered election judges to aid illiterates. But 
this argument is not responsive to the question whether 
Section 24-252 was suspended as a matter of law on August 
7, 1965 several months before the election board’s reaction. 
If Section 24-252 was suspended, no basis for disallowing 
appellants’ votes remains and they are entitled to an order 
enjoining its enforcement. There is no ground for conclud-



20

mg that Section 24-252 was only partially suspended, so as 
to save the last sentence which allows votes not to be 
counted.

The Court below did not discuss another question which 
was necessarily raised by its view of the October 15th bulle­
tin as a sort of amendment of Virginia’s voting laws. If 
this bulletin in effect replaced a suspended statute then the 
procedure set forth in the bulletin was also suspended auto­
matically by another provision of the Voting Eights Act of 
1965, e.g. Section 5. That provision suspends all new voting 
regulations in states covered by the Act pending review by 
federal authorities to determine whether their use would 
be racially discriminatory. South Carolina v. Katzenbach, 
383 U.S. 301, 334-335. The new Virginia procedure comes 
within Section 5 which refers to a “standard, practice or 
procedure with respect to voting different from that in force 
or effect on November 1, 1964” (42 U.S.C. §1973c). There 
is no allegation by the State that the October 15th bulletin 
was approved by the United States District Court for the 
District of Columbia, or was submitted to the Attorney 
General without objection as provided in Section 5 of the 
Voting Rights Act. Thus, in accord with Section 5 “no per­
son shall be denied the right to vote for failure to comply 
with such qualification, prerequisite, standard, practice or 
procedure.”

Two additional comments should be made about the 
Board of Election’s new procedure set forth in the October 
15, 1965 bulletin. At first blush it seems to be an attempt 
to conform to and obey the Voting Eights Act, but this rec­
ord shows that in practice it conditions the rights of illiter­
ates to vote upon their willingness to divulge their votes to 
state election judges. The constitutionality of that condi­
tion is explored further in argument II below. Second, we 
submit that the reasonableness of the procedures must be



21

appraised from the standpoint of the illiterate voters. 
There is not any showing in this record that they had any 
way of even knowing about the new procedures set up in 
the election board’s internal bulletin.

Application of the Voting- Eights Act to suspend the 
handwriting requirement of Va. Code section 24-252, is 
fully in accord with the Congressional purpose, and should 
be adopted to support the policy of the Act. We urge four 
separate considerations which support the desirability of a 
ruling that Section 24-252 was suspended.

First, an interpretation of the Act to permit the hand­
writing requirement to continue in effect creates a plainly 
anomalous result, considering that it is conceded that the 
handwriting requirements for voter registration (contained 
in Virginia Constitution section 20, and in Virginia Code 
section 24-68) are suspended by the Voting Rights Act. 
The handwriting requirement of Code section 24-252, is 
not materially different from that in the other provisions 
and should also be suspended. Nothing in the Voting Rights 
Act supports the result of suspending two of the handwrit­
ing requirement laws and not suspending the third.

Second, this controversy involves the “manner of holding 
elections for Senators and Representatives,” a matter which 
under the Constitution of the United States (Article I, sec­
tion 4, clause 1) is committed to the ultimate control of the 
Congress. Congress is fully authorized under the Constitu­
tion to “make or alter” rules regarding the manner of con­
ducting a federal election. A federal law intended to be 
protective of the right to vote in federal elections should 
be liberally construed as against a state enactment which 
narrowly and technically restricts the right to cast effective 
votes. As the whole area of federal election mechanics is 
committed to Congressional control there is no problem of 
infringement of States’ rights underlying the controversy.



22

Third, the policy against rules which thwart the right to 
vote on the basis of the technicalities of state law has been 
stated very plainly by the Congress. The provisions of 42 
U.S.C. §1971 (a) (2) (B), forbid the denial of the right to 
vote “because of an error or omission on any record or 
paper relating to any application, registration, or other 
act requisite to voting, if such error or omission is not 
material in determining whether such individual is quali­
fied under state law to vote in such election.” 5 There is no 
justification, in terms of administrative convenience, for 
disallowing ballots on such an overly technical ground as 
that used by appellees. As the Court said a few terms ago 
in another context involving a threat to the right to vote 
in Carrington v. Bash, 380 U.S. 89, 96:

We deal here with matters close to the core of our 
constitutional system. “The right. . .  to choose,” United 
States v. Classic, 313 U.S. 299, 314, that this Court has 
been so zealous to protect, means, at the least, that 
States may not casually deprive a class of individuals 
of the vote because of some remote administrative 
benefit to the State. Oyarna v. California, 332 U.S. 633.

Fourth, the appellants’ use of stickers to indicate their 
votes was entirely reasonable under the circumstances and 
the States’ invalidation of their ballots was unreasonable. 
The Voting Rights Act should be construed to block un­
reasonable measures which disfranchise voters where it 
may be reasonably construed to accomplish this end. The 
appellants were presented with a dilemma in the 1966 
election; they face the same problem in future contests. 
They desired to vote write-in ballots for S. W. Tucker.

6 The right to “vote,” in this statute also, includes “all action necessary 
to make a vote effective,” including having the ballot “counted and in­
cluded in the appropriate totals of votes cast.” See 42 U.S.C. § 1971(a) 
(3) (A), incorporating' the definition in 42 U.S.C. § 1971(e).



23

They also desired to keep their ballots secret. Virginia 
law, on the face of the statute books, still absolutely for­
bade them to vote except in their own handwriting. The 
statutes themselves made no exception for illiterates to be 
aided even by election judges. An Election Board bulletin 
directed election judges to aid them on request. But the 
Election Board had no power to enact any criminal law 
which might be a deterrent to a voting judge breaching a 
voter’s confidence, and did not purport to do so. Thus, il­
literates were not offered even the limited protections which 
were offered to handicapped and blind voters by Virginia 
Code section 24-251.6 Voters who could not read had the 
problem, which physically handicapped voters did not have, 
of not having any available means of knowing whether or 
not the election judge was faithfully carrying out their 
directions. Blind voters were offered the option of being 
assisted by a trusted friend; appellants were not given this 
choice. Voters with physical handicaps other than blindness 
could at least observe and comprehend the actions of the 
election judges who cast their votes. Only illiterate voters 
were placed entirely at the mercy of election judges who 
were not even bound by any statute of the state to follow 
their instructions or keep their confidence. It is no sufficient 
answer here to say that it is presumed that the election

6 The existence of such criminal sanctions was thought by a Virginia 
court to be essential to the validity of a similar 19th century Virginia 
law which was challenged because of the threat to the secret ballot. 
Pearson v. Board of Supervisors of Brunswick County, 91 Va. 334, 21 
S.E. 483 (1895). In Pearson, the Court sustained an 1894 Virginia law 
which included a provision that at the request of an elector physically or 
educationally unable to vote a special constable could aid him in preparing 
his ballot. The law was attacked as an infringement of the secret ballot. 
The Court acknowledged “that very great power is placed in the hands 
of this special constable, that a great trust is reported in him, and that 
wherever confidence is given it is liable to be abused” (Pearson, supra, 
21 S.E. at 485). But, the Court sustained the law relying on the fact 
that the constables were “under the sanction of an oath” and wmre subject 
to “severe penalties” for violating their duties.



24

judges will function honestly and do their duties. The 
Voting Rights Act of 1965 was necessary precisely because 
all other efforts to halt racial discrimination by voting of­
ficials had failed. The Virginia statutes give election offi­
cials no directions and prescribe no duties for them with 
respect to aiding illiterates. Laws and procedures which 
gave state officials total discretion were a principal means 
of preventing Negroes from voting. Louisiana v. United 
States, 380 U.S. 145, 152-153. After the Voting Rights Act 
of 1965 was enacted, the United States found it necessary 
in some communities for federal observers to watch state 
officials while they assist illiterates in voting. See United 
States v. Executive Com. of Dem. P. of Greene Co., Ala., 
254 F. Supp. 543 (N2D. and S.D. Ala. 1966).

Appellants chose a reasonable method of solving their 
problem by using stickers to indicate their votes. As the 
court below acknowledged in its opinion, this is a method 
approved in a number of state courts (268 F. Supp. at 220). 
Of course, the state might prescribe some method other than 
the use of stickers, or permitting voters to be assisted by 
persons they choose, that would afford protection for the 
secrecy of the ballots of persons unable to write legibly. 
The complaint here is simply that Virgina has not furnished 
any such method. The Voting Rights Act should be con­
strued so as to aid appellants in voting effectively and 
secretly. A finding that the Virginia handwriting require­
ment is suspended provides that protection for appellants.

As appellants made clear in the court below, they seek 
relief to protect their votes in future elections (R. 7-8, 69, 
73). The future application of the Virginia rule will have 
a chilling effect on political participation by all illiterate 
persons who oppose the dominant political organization in 
an area. Illiterates who support unpopular candidates are 
the ones who will feel the pinch of Virginia’s law. It will



25

take no great courage for an illiterate to seek help from 
an election judge when he wishes to vote for the State’s 
dominant political forces. It may be another matter en­
tirely when the illiterate supporter of a dissident minority 
candidate arrives at the polls in some areas of the Fourth 
Congressional District such as Prince Edward County 
Virginia. Cf. Griffin v. School Board, 377 U.S. 218.

Thus, for all these reasons, in addition to the plain lan­
guage of the statute, the Voting Rights Act of 1965 should 
be construed to invalidate Virginia’s statute permitting 
write-in ballots, to be discounted unless they are in “hand­
writing.”

II
Virginia Code Section 24>252 Does Not Alford Appel­

lants, Who Are Unable To Spell Accurately And Write 
Legibly, Equal Protection For The Secrecy Of Their 
Ballots.

Appellants seek protection for the secrecy of their bal­
lots in federal elections. They object to a Virginia statute, 
which has been applied to deny them the opportunity to 
vote effectively for write-in candidates unless they are will­
ing to disclose their votes to state election judges. They 
urge that the State denies them equal protection by failing 
to afford them any of the number of available procedures 
by which they might receive the same protections for the 
secrecy of their ballots which Virginia gives to voters who 
are able to write legibly and spell accurately. Indeed, they 
are not even given the protection available for blind voters, 
e.g., the right to be aided by someone other than an election 
judge if they choose.

As we have pointed out earlier, Virginia’s Constitution 
protects the secrecy of the ballot (Constitution of Virginia,



26

section 27), and for literate voters there is, in the words 
of the Constitution, “absolute secrecy.” The right to a 
secret ballot also finds support in relevant federal law. 
Congress enacted the law now codified as 2 U.S.C. §9 nearly 
100 years ago. This section (quoted supra at p. 5) requir­
ing that all votes in congressional elections be “by written 
or printed ballot” has been construed to require a secret 
ballot. See Johnson v. Clark, 25 F. Supp. 285 (N.D. Tex. 
1938); cf. Voorhes v. Dempsey, 231 F. Supp. 975 (D. Conn. 
1964).

It seems rather clear that when the Congress enacted 2 
U.S.C. §9, in 1871, it intended to provide a secret ballot as 
opposed to the viva voce method of voting. During the 
debates on the Act (the provision was originally section 19 
of the Act of February 28, 1871, 16 Stat. 440, c. 99, §19) 
Congressman Bingham said: “What objection can there be 
to the ballot? . . .  It occurs to me that there is but a single 
State in the Union to-day that tolerates the old method of 
voting viva voce.” Cong. Globe, 41st Cong., 3d Sess. 1284 
(1871). Secrecy was clearly a part of the contemporary 
19th Century understanding of the word ballot as evidenced 
by judicial usage. For example, as the Court stated in In 
re Massey, 45 F. 629, 634-635 (E.D. Ark. 1890):

That the word “ballot” implies secrecy is unquestioned, 
and, if it was provided that the election shall be by 
ballot, and nothing further was said, then it would be 
without doubt the right of the elector to have the 
secrecy of the ballot preserved from impertinent or 
improper inspection . . .

The objective of the 41st Congress was to introduce the 
authority of the federal government into the fight to 
secure and preserve the integrity of federal elections. It 
could not but have concurred in the conclusion which had



27

been reached by the majority of State legislatures that 
secrecy, as the fundamentally distinguishable characteristic 
of voting by ballot, was an efficacious tool to enlist in the 
war against a variety of electoral evils being practiced 
throughout the country.7

Moreover, the right of a secret ballot is obviously bound 
up in a close relationship with the right of privacy of as­
sociation for the advancement of political beliefs which is 
plainly protected by the Constitution. N.A.A.C.P. v. Ala­
bama, 357 U.S. 449; Talley v. California, 362 U.S. 60; 
Shelton v. Tucker, 364 U.S. 479; Bates v. Littl-e Rock, 361

7 The attitude of the majority of states on the efficacy of secrecy has 
been succinctly summarized:

“Absolute secrecy in voting reaches effectively a great number of evils, 
including violence, intimidation, bribery and corrupt practice, dicta­
tion by employers or organizations, the fear of ridicule and dislike or 
of social or commerce injury—in fact all coercive and improper in­
fluence of every sort depending on a knowledge of the voter’s political 
action.” Taylor v. Bleakley, 55 Kan. 1, 39 P. 1045 (1895).

That the 41st Congress was confronted with many of these evils emerges 
from the debate on 2 U.S.C. § 9:

“A few words as to its [the act’s] necessity . . .  we all know that 
Ku Klux outrages have been committed, not only in North Carolina 
. . . but in other states of the South; and that in more than one city 
of this Union enormous frauds have been perpetrated upon the ballot 
box . . .” Cong. Globe, 41st Cong. 3d Sess. 1275 (1871) (Remarks 
of Rep. Churchill).

“Tour ‘repeaters,’ your ‘ballot-box staffers,’ your ‘Ku Klux Klans,’ 
intimidation of loyal citizens—these and numberless other agencies 
of wrong and fraud on the ballot, overturning the power and will 
of the people, will continue to run riot in the land unless prevented 
by some such legislation as this . . .  We have seen the elector’s of 
states defrauded out of the honest expression of their choice of candi­
dates at the ballot-box, and in others we have seen similar results 
from terrorism, intimidation, and violence.” Id. at 1276 (Remarks 
of Rep. Lawrence).

“The object of the bill is very manifest, and in my judgment just 
as it is manifest. I t  is to prevent, under the law and by virtue of the 
law, any violation of the rights of the citizen by fraud or corruption 
on the part of any one to whom is intrusted the conduct of the elec­
tion or the registration of voters.” Id. at 1284 (Remarks of Rep. 
Bingham).



28

IT.S. 516. Accordingly, any state invasion of the privacy of 
the ballot must be justified by some compelling showing. 
“Where there is a significant encroachment upon personal 
liberty the State may prevail only upon showing a subordi­
nating interest which is compelling.” Bates v. Little Rock, 
361 U.S. 516, 524. “ [Ejven though the governmental pur­
pose be legitimate and substantial, that purpose cannot be 
pursued by means that broadly stifle fundamental personal 
liberties when the end can be more narrowly achieved.” 
Shelton v. Tucker, supra, 364 U.S. at 488.

Quite plainly, the secret ballot is a valuable privilege 
which cannot be denied or infringed on a discriminatory 
basis. The Virginia discrimination against illiterates serves 
no overriding governmental purpose which can justify the 
differential treatment. It should be noted that the Virginia 
statutes contain no specific and direct prohibition against 
the use of voting stickers. The appellees found the prohibi­
tion implied from the requirement that write-in candidates’ 
names be inserted in the voter’s own handwriting, Va. Code 
§24-252. But the Virginia election officials are apparently 
quite prepared to accept the handwriting of an election 
judge in lieu of the voter’s handwriting, just as the Virginia 
laws accepts the handwriting of any friend brought into the 
voting booth by a blind voter. The state’s legislative and 
administrative scheme shows no consistent concern for 
whose handwriting appears on the ballot; only a concern 
that names be inserted in someone’s handwriting. But there 
has been no showing or argument forthcoming from the 
State which demonstrates why the State has such a great 
interest in the insertion being done in handwriting as op­
posed to printing or some other method, or why the sub­
scription for illiterates must be done in the handwriting of 
an election judge and not by some other person who is not 
a state official. The State has not carried the burden of



29

demonstrating that the handwriting requirement is so “nec­
essary to the proper administration of its election laws” 
that the interest may be elevated above the constitutionally 
protected right of a citizen to vote and have his vote 
counted. Harman v. Forssenius, 380 U.S. 528, 543. The 
handwriting requirement is merely a remaining vestige of 
Virginia’s long-lived system of enforcing a literacy pre­
requisite for voting, a system designed from its inception 
to prevent Negroes from voting. Harman v. Forssenius, 
supra, 380 U.S. at 543.

The opinion below states that illiterates have no Four­
teenth Amendment right to vote and apparently concluded 
from this proposition that discrimination against illiterates 
does not violate the Fourteenth Amendment (268 F. Supp. 
at 220). But illiterates now have a right to register and 
vote in Virginia under the Voting Rights Act, which was 
made applicable to the State under the congressional for­
mula designating those states where literacy tests had been 
used to discriminate against Negroes. An unjustifiable dis­
crimination among those equally entitled to vote under the 
operative law establishing voting qualifications is nonethe­
less a denial of equal protection of the laws whatever might 
be the rule if voting qualifications were different. When 
the law affords a right it must be afforded on equal terms. 
The State should not be permitted to invade the right of a 
secret ballot where there are plainly available methods 
which can assure voters’ privacy from state election officials.



30

CONCLUSION

It is respectfully submitted that this case presents sub­
stantial questions which justify full briefing and plenary 
consideration by the Court.

Respectfully submitted,

F eed W allace 
J ames N. F in n e y  

Of Counsel

J ack Greenberg 
J ames M. N abrit, III 

10 Columbus Circle 
New York, New York 10019

Oliver W. H ill  
S. W. T ucker  
H enry  L. M arsh , III 
H arold M. M arsh

214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Appellants



A P P E N D I X



APPENDIX

Opinion by Butzner, O.j.

UNITED STATES DICTRICT COURT
E .  D. V lB G IN IA  

R ichm ond  D ivision 

May 2, 1967 
Civ. A. No. 5041

R ichabd A l l e n , L ena  W . D u n n , W ashington  M oobe, 
M cK in l e y  D u n n , N oba T yleb, J ames G ilbebt T yleb, 
F a n n ie  M. B eow n , P atbick  H. B bown and J ames 
D o n ik en s ,

Plaintiffs,
v.

S tate B oabd oe E lections, M ask  Gbizzabd, F obest L a n k - 
eobd, B e n ja m in  Gb ie e in , R obebt E . Gabnett, J. S. 
L ipscomb , T homas B bown  a n d  P aul B ell ,

Defendants.

M emoeandum  op t h e  C oubt

B efo re  B byan a n d  W in t e b , Circuit Judges, an d  B u tzn ee , 
District Judge.

B u t zn e e , District Judge:
The plaintiffs, registered voters who are unable to 

spell accurately or to write legibly, attempted to cast 
their votes for a write-in candidate in the 1966 congres­
sional election. Each pasted a sticker, upon which the 
write-in candidate’s name was printed, on the official ballot



2a

Opinion by Butsner, D.J.

under the names of listed candidates and appropriately 
marked the ballot immediately preceding the sticker. 
These ballots were not tabulated for the write-in candi­
date. Upon these undisputed facts, the plaintiffs seek a 
declaratory judgment that the Fourteenth Amendment’s 
equal protection clause and the Voting Rights Act of 1965 
(42 U.S.C. §1973 et seq.) invalidates §24-252, Code of 
Virginia 1950, insofar as this section denies to any voter, 
solely because of his inability to write, the privilege of 
casting a secret ballot for a candidate whose name is not 
printed on the official ballot. The plaintiffs pray that 
the defendants be enjoined from refusing to count any 
vote because the candidate’s name was inserted on the 
official ballot by means other than the voter’s handwriting. 
We canclude that the relief sought by the plaintiffs should 
be denied.

Pertinent provisions of the Virginia Constitution are:
“§ 27: Method of Voting.—All elections by the 

people shall be by ballot; * * *
“The ballot box shall be kept in public view during 

all elections, and shall not be opened, nor the ballots 
canvassed or counted, in secret.

So far as consistent with the provisions of this 
Constitution, the absolute secrecy of the ballot shall 
be maintained.”

“§ 28. Ballots.—The General Assembly shall pro­
vide for ballots without any distinguishing mark or 
symbol, for the use in all State, county, city and other 
elections by the people, and the form thereof shall 
be the same in all places where any such election is 
held. All ballots shall contain the names of the candi-



3a

Opinion by Butzner, D.J.

dates and of the offices to be filled, in clear print and 
in due and orderly succession; but any voter may erase 
any name and insert another.”

Section 24-252, Code of Virginia 1950, provides:
“Insertion of names on ballots.—At all elections 

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

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

The plaintiffs’ contention that § 24-252 violates the 
Fourteenth Amendment because it discriminates against



4a

Opinion by Butsner, D.J.

illiterates is not supported by authority. To the contrary, 
exclusion of illiterate persons from voting, if no other 
discrimination is practiced, does not violate the Four­
teenth Amendment.

In Lassiter v. Northampton Election Bd., 360 TJ.S. 45, 
51, 79 S.Ct. 985, 990, 3 L.Ed.2d 1072 (1959), the Court 
said:

“We do not suggest that any standards which a 
State desires to adopt may be required of voters. But 
there is wide scope for exercise of its jurisdiction. 
Residence requirements, age, previous criminal record 
* * * are obvious examples indicating factors which a 
State may take into consideration in determining the 
qualifications of voters. The ability to read and write 
likewise has some relation to standards designed to 
promote intelligent use of the ballot. Literacy and 
illiteracy are neutral on race, creed, color, and sex, 
as reports around the world show. Literacy and in­
telligence are obviously not synonymous. Illiterate 
people may be intelligent voters. Yet in our society 
where newspapers, periodicals, books, and other 
printed matter canvass and debate campaign issues, 
a State might conclude that only those who are 
literate should exercise the franchise. * * # It was 
said last century in Massachusetts that a literacy 
test was designed to insure an ‘independent and in­
telligent’ exercise of the right of suffrage. * # * North 
Carolina agrees. We do not sit in judgment on the 
wisdom of that policy. We cannot say, however, that 
it is not an allowable one measured by constitutional 
standards.”



5a

Opinion by Butzner, D.J.

Lassiter warns that “ * * * a literacy test, fair on its 
face, may be employed to perpetuate that discrimination 
which the Fifteenth Amendment was designed to uproot.” 
360 XT.S. 53, 79 S.Ct. 991. No evidence has been presented 
that Virginia’s prohibition of stickers had been adminis­
tered in a discriminatory manner. It has not been used 
to disfranchise any class of citizens. We conclude that 
§ 24-252 does not violate the Fourteenth Amendment by 
discriminating between literate and illiterate voters.

The equal protection clause of the Fourteenth Amend­
ment and the Fifteenth Amendment are not the only 
standards by which state legislation governing the fran­
chise must be measured. State laws affecting the right 
of suffrage must not contravene “ # * # any restriction 
that Congress, acting pursuant to its constitutional powers, 
has imposed.” Harper v. Virginia Bd. of Elections, 383 
IT.S. 663, 665, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966); 
Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1731, 16 
L.Ed.2d 828 (1966). The plaintiffs urge that requiring 
the name of the write-in candidate to be inserted in the 
voter’s own handwriting violates the Voting Bights Act 
of 1965 (42 U.S.C. § 1973 et seq.). The constitutionality 
of pertinent sections of the Act is not in dispute. Cf. State 
of South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 
803, 15 L.Ed.2d 769 (1966).

Virginia is subject to the Act, 42 U.S.C. § 1973b(b). Until 
the state is removed from the Act’s provisions, all tests 
or devices for determining eligibility to vote are sus­
pended. 42 U.S.C. § 1973b(a).

The plaintiffs rely on these sections of the Act:
42 U.S.C. § 1973b(a):

“ # * * no citizen shall be denied the right to vote 
in any Federal, State, or local election because of his



6a

Opinion by Butsner, D.J.

failure to comply with any test or device in any 
State * * * .”
42 U.S.C. § 1973b (c):

“The phrase ‘test or device’ shall mean any require­
ment that a person as a prerequisite for voting or 
registration for voting (1) demonstrate the ability to 
read, write, understand, or interpret any matter, (2) 
demonstrate any educational achievement or his knowl­
edge of any particular subject, (3) possess good moral 
character, or (4) prove his qualifications by the 
voucher of registered voters or members of any other 
class.”
42 U.S.C.A. §1973i(a):

“No person acting under color of law shall fail or 
refuse to permit any person to vote who is entitled 
to vote under any provision of this subchapter or is 
otherwise qualified to vote, or willfully fail or refuse 
to tabulate, count, and report such person’s vote.”

Section 24-251, Code of Virginia 1950, authorizes a 
judge of election, upon request, to assist a physically 
handicapped voter prepare his ballot, and allows a blind 
voter to be aided by a person of his choice. The assistants 
are enjoined to secrecy. For any corrupt violation of their 
duties, they may be punished by confinement in jail for 
not less than one nor more than twelve months. No provi­
sion was made for helping an illiterate person because 
under Virginia law all voters had to demonstrate ability 
to read and write.

After the enactment of the Voting Eights Act of 1965, 
Virginia directed its registrars to help illiterate persons



7a

Opinion by Butsner, D.J.

register. The Board of Elections recognized that illiterates 
might need assistance with their ballots. For this reason, 
it instructed all judges of election:

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

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

The Attorney General of Virginia asserted, and the 
plaintiffs do not controvert, that these instructions apply 
while the Voting Rights Act of 1965 is effective in the 
state.

The requirement that a write-in candidate’s name be 
inserted in the voter’s handwriting is not a test or device 
defined in 42 U.S.C. §1973b(c). The requirement did not 
preclude the plaintiffs from registering or from voting. 
Under present Virginia statutes and regulations of the



8a

Opinion by Butzner, D.J.

Board of Elections, an illiterate can cast a valid write-in 
ballot by enlisting the assistance of a jndge of election. 
No evidence was offered that any Judge of election denied 
any illiterate voter the confidential assistance to which 
he is entitled.

Judgment will be entered for the defendants.



9a

Judgment

I n  th e

UNITED STATES DISTRICT COURT 
F ob t h e  E astern D istrict of V irginia  

R ich m o nd  D ivision  

Civil Action No. 5041

R ichard A l l e n , L ena  W. D u n n , W ashington  M oore, 
M cK in l e y  D u n n , N ora T yler, J ambs G ilbert T yler, 
F a n n ie  M. B row n , P atrick H. B rown and J ames 
D on ik bn s ,

Plaintiffs,
v.

S tate B oard of E lections, M ark Grizzard, F orest L ank­
ford, B e n ja m in  Gr if f in , R obert E . Garnett, J. S. 
L ipscomb, T homas B rown a n d  P aul B ell ,

Defendants.

For reasons stated in the opinion of the court this day 
filed;

It is A djudged and Ordered th a t  th e  p ra y e r  o f th e  p la in ­
ti f f s ’ co m p la in t is  den ied , th e  co m p la in t is  d ism issed , an d  
th e  ac tio n  is  s tr ic k e n  fro m  th e  docket w ith  costs  tax ed  
a g a in s t  th e  p la in tif fs .

May 2, 1967
/ s /  A lbert V. B ryan 

United States Circuit Judge
/ s /  H arrison W inter 

United States Circuit Judge
/ s /  J ohn  D. B u tzn er , J r. 

United States District Judge



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