Novick v. Levitt & Sons, Inc. Papers on Appeal from an Order

    IN THE

Bnpxmt ( te tr i  ni %  Mnttefr Butts
October T erm, 1964

No. 412

V irginia S tate B oard of E lections, ex al., Appellants,

v.
E. L eslie H amm, et al., Appellees.

Ga Appeal From the United States District Court for the 
Eastern District of Virginia

MOTION TO AFFIRM

A llison W. Brown, Jr.
Suite 705
1000 Connecticut Avenue, N. W. 
Washington 6, D. C.

Otto L, T ucker 
901 Princess Street 
Alexandria, Virginia

Attorneys for Appellees.

Press of Byron S. A dams, W ashington, D. C.



INDEX
Page

Opinion below ..................................................................  2
Jurisdiction .............................................................. . • - ■ 2
Question presented..........................................................  2
Statutes involved..............................................................  2
Statement .......................................................................... 2
Argument .......................................................................... 5

CITATIONS
Cases :
Anderson v. Courson, 203 F. Supp. 806 (M.D.Ga.) . . . .
Anderson v. Martin, 375 IT.S. 399 ................................5, 6,
Bolling v. Sbarpe, 347 U.S. 497 ....................................
Brown v. Board of Education, 347 U.S. 483 .................
Goss v. Board of Education, 373 U.S. 683 .....................
N A A CP v. Alabama, 357 U.S. 449 ..................................
Peterson v. City of Greenville, 373 U.S. 244 .................  7
Tancil v. Woolfs, No. 386, this T erm ............................  2, 3
United States v. Bibb County Democratic Executive

Committee, 222 F. Supp. 493 (M.D. Ga.) .............  6
United States v. Raines, 189 F. Supp. 121 (M.D. Ga.) . . 6

C on stitu tion  :

United States:
Fourteenth Amendment 
Fifteenth Amendment .

2.4
2.5

Statutes:

United States Code:
Title 13, Sec. 9(a)(2) ................................................ 7
Title 28, See. 2284 ................................................... 2

Virginia Code (1950):
Sec. 20-101 ................................................................  3
Sec. 58-790 ................................................................ 4

M iscellaneous :

110 Congressional Record 12384(3), 15364(3), 15458 .. 7

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IN THE

(tort ni %  Initvft IHata
October T erm, 1964

No. 412

V irginia State B oard of E rections, et al., Appellants,

v.

E. L eslie H amm, et al., Appellees.

On Appeal From the United States District Court for the 
Eastern District of Virginia

MOTION TO AFFIRM

Appellees, pursuant to Rule 16 of the Revised Rules 
of the Supreme Court of the United States, move that the 
part of the final order of the District Court appealed from 
herein be affirmed on the ground that the questions are 
so unsubstantial as not to warrant further argument.



2

OPINION BELOW

The opinion of the District Court for the Eastern Dis­
trict of Virginia is reported in 230 F. Supp. 156 and appears 
as Appendix A to appellant’s Statement of Jurisdiction. 
The final order of the Court appears as Appendix B to the 
Statement of Jurisdiction.

JURISDICTION

The jurisdictional requisites are adequately set forth in 
the Statement of Jurisdiction.

QUESTION PRESENTED
Whether Virginia laws which require the maintenance 

on a racially segregated basis of public records pertaining 
to registration and voting, and property ownership and 
taxation, violate the Fourteenth and Fifteenth amendments 
to the Constitution of the United States.

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED

The pertinent provisions of the Virginia Constitution 
and statutes are adequately summarized in the Statement 
of Jurisdiction, pp, 3-4, and are set forth verbatim, in Ap­
pendix C thereto.

STATEMENT

This is a companion case to Tancil, et al. v. Woolls, et al., 
No. 386, this Term. Both appeals arise out of a single 
proceeding brought in the District Court for the purpose 
of challenging the constitutionality of various racially dis­
criminatory provisions of the Virginia Constitution and 
statutes. In the instant case, appellants seek reversal 
of the ruling of the three-judge District Court (constituted 
pursuant to Title 28, U.S.C. Sec. 2284) declaring unconsti­
tutional and enjoining enforcement of provisions of Vir­
ginia law which require the maintenance on a racially segre­
gated basis of public records concerning registration and



3

voting, and property ownership and taxation. Tancil, et al. 
v. Woolls, et al. consists of an appeal from the District 
Court order upholding as constitutional a provision of 
Yirginia law requiring every decree of divorce entered by 
court in the State to “ contain a recital showing the race 
of the husband and wife.”  Section 20-201, Code of Vir­
ginia (1950).

The appellees in the case at bar are colored and white 
persons who are citizens of the United States, and one or 
more of whom reside either in Arlington or Fairfax County 
or the City of Alexandria, Virginia. They are owners of 
real and personal property and qualified voters and tax­
payers. They brought this action against the governmental 
boards and officers on the state level, and their counter­
parts in the local jurisdictions where the appellees reside, 
who have responsibility under Virginia law for the enforce­
ment, execution and administration of the racially discrimi­
natory laws in question.

The provisions of Virginia’s registration and voting laws 
challenged by appellees are those requiring that records of 
qualified voters and persons who have paid their poll taxes 
be kept separately by race, i.e., according to whether the 
person named is “ white”  or “ colored,”  or, in specified 
instances, a ‘ ‘ tribal Indian. ’ ’ By virtue of these laws, white 
persons, colored persons, and Indians who present them­
selves at the polls to vote in Virginia must be identified by 
the election clerks and judges from, separate listings ac­
cording to the race or color of the voter. The Virginia 
State Board of Elections, an appellant herein, supervises 
and coordinates the work of county and city election offi­
cials throughout the State, and by means of published rules 
and policies obtains uniformity in electoral practices and 
compliance with the State’s registration and voting laws. 
Included among the appellants are the electoral boards and 
general registrars of Fairfax and Arlington counties and 
the City of Alexandria, as well as the Director of Finance



4

for Fairfax County and the treasurers of Arlington and 
Alexandria. These appellants are engaged at the local 
level in the enforcement and administration of the provi­
sions of the registration and election laws in question.

Appellees, in the District Court, also attacked racial 
provisions of Virginia’s property and tax laws. Section 
58-790 of the Code of Virginia (1950), requires official 
assessors throughout the State, at the time of making as­
sessments of real estate, in addition to acertaining the fair 
market value of all assessable property, to note whether 
the owner is white, colored or Indian. The racial informa­
tion thus obtained is recorded in the official land books of 
the county or city in which the property is located. The 
land books, in addition to containing separate listings of 
property according to the race of the owner, are used for 
recording on a racially segregated basis the assessed valu­
ation of real estate as well as tax levies and payments. 
The official form for land books (except those used in 
certain cities) is prescribed according to statute by the 
appellant, C. H. Morrissett, Virginia State Tax Commis- 
sioiner. Apepllant Morrissett, as part of his duties, also 
prescribes the form of personal property books used by 
counties and cities throughout Virginia, and in which are 
recorded personal property assessments with taxes and 
levies. These records are also required by the statutory 
provisions here challenged to be kept on a racially segre­
gated basis. The appellants in this proceeding also in­
clude the officials of Arlington and Fairfax counties and the 
City of Alexandria who perform the duties of Commis­
sioner of Revenue for each of these jurisdictions; these 
officials, as part of their official duties, keep and maintain 
on a racial basis various of the property and tax records 
affected by the statutory provisions in question.

The District Court held that the six challenged provi­
sions of the Virginia code and one provision of the State’s 
constitution conflict with the Fourteenth Amendment to the



5

Constitution.1 * The Court therefore enjoined the appellant 
State and local officers from administering and enforcing 
these provisions on and after December 31, 1964.

ARGUMENT

The decision of the court below is plainly correct. As the 
court noted in its opinion, since this Court’s decision in 
Brown v. Board of Education, 347 U.S. 483, “  [sjubsequent 
decisional law has made it axiomatic that no State can di­
rectly dictate or casually promote a distinction in the 
treatment of persons solely on the basis of their color”  
(Appellants’ App. 2). This Court has also emphasized 
that “ racial classifications are obviously irrelevant and in­
vidious”  (Goss v. Board of Education, 373 U.S. 683, 687), 
and “ must be scrutinized with particular care, since they 
are contrary to our traditions and hence constitutionally 
suspect.”  Bolling v. Sharpe, 347 U.S. 497, 499. Accord, 
Anderson v. Martin, 375 U.S. 399, 403-404.

Appellants have failed to justify the provisions of Vir­
ginia law in question, which by their terms require the main­
tenance, separately by race, of various public records per­
taining to registration and voting, as well as property own­
ership and taxation. There can be no doubt that these laws 
reflect the policy of government-enforced segregation of the 
races which has long prevailed in Virginia and other south­
ern states. Since the Brown decision, however, it is mani­
fest that such racial laws may not stand under the Consti­
tution. Judicial authority has invalidated laws requiring 
racial segregation in public activities of all kinds, includ­
ing public education, transportation, public parks and play­
grounds, court rooms, as well as business establishments, 
serving the public. Since the instant laws are part of the

1 The appellees, in the District Court, also alleged that the 
Fifteenth amendment was violated by the provisions of the Vir­
ginia registration and voting laws requiring the maintenance of
racially segregated voter eligibility lists.



6

same outmoded fabric of state-imposed segregation of the 
races they suffer the same constitutional infirmity.

The unlawful character and purpose of the Virginia laws 
in question is underscored by the unnatural emphasis which 
they place on race.2 Virginia, by maintaining separate lists, 
according to race, of those qualified to vote, in effect, re­
quires every voter who presents himself at the polls to 
submit to a determination of his race by election officials 
before it can be determined if his name is listed among 
those entitled to cast a ballot.8 Similarly, under the laws 
in question access to public records pertaining to property 
ownership and taxation depends initially on ascertainment 
of the race of the individual whose records are sought—for 
only after his race is determined is it possible to find the 
individual’s name and to locate the desired information.

Appellants contend that these statutes aid in gathering 
statistical data which is useful for economic and sociologi­
cal purposes and in the study of vital statistics. Conced- 
edly, the collection of statistics concerning- its citizens is a 
legitimate function of the State. However, appellants have 
at no time in this proceeding shown that the instant laws 
were enacted with a statistical purpose in view. Further, 
even if the contested provisions facilitate the State’s col­
lection of statistical information, this is not enough to 
establish their constitutionality. Obviously, improved sta­
tistical information concerning race is a foreseeable by ­
product of every system of segregation, but this does not 
satisfy the constitutional test. For when the State under-

2 As the Court stated in Anderson v. Martin, supra, 375 TJ.S. at 
404, “ Race is the factor upon which the statute operates and its 
involvement promotes the ultimate discrimination which is sufficient 
to make it invalid. ’ ’ 3

3 The maintenance of voter lists on a racial basis was condemned 
in United States v. Baines, 189 F. Supp. 121, 133 (M.D. Ga.) ; 
Anderson v. Courson, 203 F. Supp. 806, 810 (M.D. Ga.) ; United 
States v. Bibh County Democratic Executive Committee, 222 F 
Supp. 493, 498-499 (M.D. Ga.).



7

takes the collection of statistical data about its citizens, the 
means employed must be reasonably adapted to the end 
sought, i.e., the means may not transgress constitutional 
rights.4

As the court below properly recognized, a State policy 
or statute offends the Constitution when it draws a distinc­
tion between persons solely on the basis of race or color. 
And the “ governmental action need not effectuate segre­
gation of facilities directly”  (Appellants’ App. 2-3). The 
instant statutes, because of their unjustified emphasis on 
racial differences, by their nature recommend themselves to 
those in our society who would perpetuate racially dis­
criminatory practices. “ The crucial factor is the inter­
play of governmental and private action, for it is only after 
the initial exertion of state power * * * that private action 
takes hold.”  NAACP v. Alabama, 357 TJ.S. 449, 463. This 
Court has made clear that the exercise of State power 
which encourages private discrimination falls just as 
plainly under the constitutional proscription as do more 
direct means of effecting discrimination through State 
action. Peterson v. City of Greenville, 373 U.S. 244, 247- 
248; Anderson v. Martin, supra, 375 TJ.S. at 402-404.

4 Recognition of traditional constitutional values and protection 
of an individual’s right to privacy is implicit in the procedures 
followed by the United States Bureau of the Census. The Bureau 
is prohibited by statute from making public data where “ any par­
ticular individual * * * can be identified.”  13 U.S.C. Sec. 9 (a) (2), 
as amended October 15, 1962, Pub. L. 87-813, 76 Stat. 922.

Racial discrimination in voter participation was recently treated 
by Congress in the Civil Rights Act of 1964. Pub. L. 88-352 (1964). 
Under Title VIII of the Act, the Bureau of the Census is directed 
to compile registration and voting statistics on the basis of race, 
color and national origin in certain geographic areas, in order to 
determine the extent to which the right of franchise is exercised. 
A specific clause was written into this title to prevent the public 
disclosure of data where any individual can be identified by race, 
and, further, to permit a person to refuse to supply the Bureau 
information concerning his race if he so desires. 110 Cong. Rec. 
12384(3), 15364(3), 15458.



8

CONCLUSION

For the foregoing reasons, the appellees submit that the 
District Court was correct in concluding that the laws in 
question are unconstitutional, that the appellants present 
no substantial question for the decision of this Court, and 
that the order of the District Court should be affirmed.

Respectfully submitted,

A liuson W . B r o w n , J r .
Suite 705
1000 Connecticut Avenue, N. W. 
Washington 6, D. C.

Otto L. T ucker 
901 Princess Street 
Alexandria, Virginia

Attorneys for Appellees.
September 1964.