Hawkins v. North Carolina Dental Society Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    I n  t h e

Ihtpratu? ( ta r t  at %  llmtrfr
October T eem, 1966 

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

Reginald A. H awkins, 

—v.—
Petitioner,

S tate of North Carolina,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

J ack Greenberg

Melvyn Zarr

10 Columbus Circle 
NewT York, New York 10019

A nthony G. Amsterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

J . LeVonne Chambers

405% East Trade Street 
Charlotte, North Carolina

T homas YVyche

2500 Beatties Ford Road 
Charlotte, North Carolina

Charles V. Bell
112 South Irwin Avenue 
Charlotte, North Carolina

Attorneys for Petitioner



I N D E X

Citations to Opinions Below ......................................... 1

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

Questions Presented ... ...................   2

Statutes Involved ........................................................... 2

Statement ........................................................................ 6

PAGE

Reasons for Granting the Writ
I. Certiorari Should Be Granted to Reverse the 

Court of Appeals’ Holding That Federal Re­
moval Jurisdiction May Be Defeated by the 
State’s Choice of Charges ...............................  9

II. Certiorari Should Be Granted to Clarify the 
Scope of This Court’s Decision in City of 
Greenwood v. Peacock, Which Was Extended 
by the Court Below So As To Bring It Into 
Conflict With Georgia v. Rachel ..................... 10

III. Certiorari Should Be Granted to Reconsider 
City of Greenwood v. Peacock Insofar as That 
Case Indicates Disallowance of Federal Civil 
Rights Removal Jurisdiction of State Criminal 
Prosecutions Brought Solely to Harass and 
Intimidate Negroes and to Punish Them for, 
and Deter Them From, Exercising Their Right 
to Vote ..............................................................  13

Conclusion 19



11

PAGE

Appendix I
Opinion of United States Court of Appeals for the 
Fourth Circuit........................................................... la
Judgment of United States Court of Appeals for 
the Fourth Circuit ................................................  9a

Appendix II
Opinion of United States District Court for the 
Western District of North Carolina ............... .....  10a
Judgment of United States District Court for the 
Western District of North Carolina ..................... 14a

Table of Cases

City of Greenwood v. Peacock, 384 U. S. 808 (1966) —.8,10,
11,12,13,14,15,18

Georgia v. Rachel, 384 U. S. 780 (1966) ..........9,10,11,12,
13,15,16

Harper v. Virginia Board of Elections, 383 U. S. 663
(1966) .........................................................................  15

Hawkins v. North Carolina Dental Society, 355 F. 2d
718 (4th Cir. 1966) ...................................................  6

Hawkins v. North Carolina State Board of Education,
W. D. N. C., No. 2067 ..........................................  6

Kentucky v. Powers, 201 U. S. 1 (1906) ........... .........  9

Reynolds v. Sims, 377 U. S. 533 (1964) ....... .............  14

United States v. Clark, 249 F. Supp. 720 (S. D. Ala. 
1965) ..........................................................................- 16



Ill

PAGE

United States v. Raines, 362 U. S. 17 (1960) ............ - 15
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961), 

cert. den. 369 U. S. 850 (1962) ............................16,17

Walker v. Georgia, 381 U. S. 355 (1965) ..................... 10
Wilson v. Republic Iron & Steel Co., 257 U. S. 92 

(1921) ...............-.........................................................  9

Yick Wo v. Hopkins, 118 U. S. 356 (1886) .................  14

F ederal S tatutes

R. S. §2004 (1875) ......................................................... 3
Act of September 9, 1957, Pub. L. 85-315, §131, 71 Stat.

637 .................................................................... -11,14,16
Act of May 6, 1960, Pub. L. 86-449, 74 Stat. 9 0 .......... - 14
Act of July 2, 1964, Pub. L. 88-352, §201 (a), 78 Stat.

243 .......................................-.................................... 10,14
Act of July 2, 1964, Pub. L. 88-352, §203, 78 Stat.

244 .... ................................................................. 10,14,17
Act of August 6, 1965, Pub. L. 89-110, §11 (b), 79 Stat.

443 ............................................. -.........................11,14,17
28 U. S. C. §1254(1) (1964) .......................-................. 2
28 U. S. C. §1443(1) (1964) ................................2,3,11,13
42 U. S. C. §1971(a)(l) (1964) ........... ...................... 2,3,11
42 U. S. C. §1971(b) (1964) .....................2,3,11,12,16,17
42 U. S. C. §1973i(b) (Supp. I, 1965) ..............2, 3, 4,11,12
42 U. S. C. §2000a(a) (1964) ....... ........................... 4,10,11
42 U. S. C. §2000a-2 (1964)   ..........................5,10,11,12

S tate S tatutes

N. C. Gen. Stat. §163-196(3) ....................................... 6
N. C. Gen. Stat. §163-197(1) ....................................... 6



I n  th e

CUnurt of Iff? Intfrii §miisB
October T erm, 1966 

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

Reginald A. H awkins,
Petitioner,

State of North Carolina,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for the 
Fourth Circuit entered in this case on August 16, 1966.

Citations to Opinions Below

The per curiam opinion and judgment of the Court of 
Appeals and Judge Sobeloff’s special concurrence are as 
yet unreported and are set forth in Appendix I, hereto, 
pp. la-9a, infra.

The remand order and supporting opinion of the United 
States District Court for the Western District of North 
Carolina, entered May 15, 1965 and affirmed by the Court 
of Appeals, are as yet unreported and are set forth in 
Appendix II, hereto, pp. 10a-14a, infra.



2

Jurisdiction

The judgment of the Court of Appeals was entered 
August 16, 1966 (Appendix I, p. 9a). Jurisdiction of this 
Court is invoked pursuant to 28 U. S. C. §1254(1) (1964).

Questions Presented

1. Did the Court of Appeals err in accepting, without 
an evidentiary hearing below, the charges against petitioner 
rather than the allegations of his petition for removal as 
the basis for testing petitioner’s claim to civil rights re­
moval jurisdiction over his state criminal prosecution?

2. Did the Court of Appeals err in disallowing federal 
civil rights removal jurisdiction of petitioner’s state 
criminal prosecution where that prosecution was brought 
(a) on account of acts directly involved in the process of 
Negro voting registration, and (b) solely to harass peti­
tioner and to punish him and other Negroes for, and deter 
them from, registering to vote?

Statutes Involved

A. This case involves the construction of 28 U. S. C. 
§1443(1) (1964) as it pertains to the protection afforded 
rights conferred by 42 U. S. C. §§1971(a)(1), (b) (1964), 
1973i(b) (Supp. I, 1965), the latter section being Sec. 11(b) 
of the Voting Rights Act of 1965, 79 Stat. 443.

In relevant part, these statutes provide:



1. 28 U. S. C. §1443(1) (1964):
§1443. Civil rights cases

Any of the following civil actions or criminal prosecu­
tions, commenced in a State Court may be removed 
by the defendant to the district court of the United 
States for the district and division embracing the place 
wherein it is pending :

(1) Against any person who is denied or cannot 
enforce in the courts of such State a right under any 
law providing for the equal civil rights of citizens 
of the United States, or of all persons within the juris­
diction thereof; . . .

2. 42 U. S. C. §1971(a) (1) (1964) (R. S. §2004 (1875): 

§1971 . . .
(a) (1) All citizens of the United States who are 

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

3. 42 U. S. C. §1971 (b) (1964) (Sec. 131 of the Civil 
Rights Act of 1957, 71 Stat. 637):

§1971 . . . (b) Intimidation, threats, or coercion
No person, whether acting under color of law or 

otherwise, shall intimidate, threaten, coerce, or at­



4

tempt to intimidate, threaten, or coerce any other per­
son for the purpose of interfering with the right of 
such other person to vote or to vote as he may choose, 
or of causing such other person to vote for, or not to 
vote for, any candidate for the office of President, Vice 
President, presidential elector, Member of the Senate, 
or Member of the House of Representatives, Delegates 
or Commissioners from the Territories or possessions, 
at any general, special, or primary election held solely 
or in part for the purpose of selecting or electing any 
such candidate.

4. 42 U. S. C. §1973 i (b) (Supp. I, 1965) (Sec. 11(b) of 
the Voting Rights Act of 1965, 79 Stat. 443):

§1973 i . . . (b) Intimidation, threats, or coercion

No person, whether acting under color of law or 
otherwise, shall intimidate, threaten, or coerce, or at­
tempt to intimidate, threaten, or coerce any person 
for voting or attempting to vote, or intimidate, 
threaten, or coerce, or attempt to intimidate, threaten, 
or coerce any person for urging or aiding any person 
to vote or attempt to vote, or intimidate, threaten, or 
coerce any person for exercising any powers or duties 
under section 1973a(a), 1973d, 1973f, 1973g, 1973h, or 
1973j(e) of this title.

B. In this petition, important reference will also be 
made to the following statutes:

1. 42 U. S. C. §2000a (a) (1964) (Sec. 201(a) of the 
Civil Rights Act of 1964, 78 Stat. 243):

§2000a. Prohibition against discrimination or segrega­
tion in places of public accommodation—Equal
access



5

(a) All persons shall be entitled to the full and 
equal enjoyment of the goods, services, facilities, 
privileges, advantages, and accommodations of any 
place of public accommodation, as defined in this sec­
tion, without discrimination or segregation on the 
ground of race, color, religion, or national origin.

2. 42 U. S. C. §2000a-2 (1964) (Sec. 203 of the Civil 
Eights Act of 1964, 78 Stat. 244):

§2000a-2. Prohibition against deprivation of, inter­
ference with, and punishment for exercising 
rights and privileges secured by section 
2000a or 2000a~l of this title

No person shall (a) withhold, deny, or attempt to 
withhold or deny, or deprive or attempt to deprive, any 
person of any right or privilege secured by section 
2000a or 2000a-l of this title, or (b) intimidate, threaten, 
or coerce, or attempt to intimidate, threaten, or coerce 
any person with the purpose of interfering with any 
right or privilege secured by section 2000a or 2000a-l 
of this title, or (c) punish or attempt to punish any 
person for exercising or attempting to exercise any 
right or privilege secured by section 2000a or 2000a-l 
of this title.



6

Statement

November 12, 1964, petitioner Reginald A. Hawkins, a 
Negro dentist active in civil rights work,1 filed in the 
United States District Court for the Western District of 
North Carolina a petition for removal of a criminal prose­
cution from the Superior Court of Mecklenburg County, 
North Carolina (R.I., 20a.-25a).2 The criminal proceedings 
against petitioner involved charges of interfering with a 
special registration commissioner in the performance of 
her duties, an alleged violation of N. C. Gen. Stat. §163- 
196(3), and of fraudulently procuring the registration of 
certain persons not qualified to vote under North Carolina 
law, an alleged violation of N. C. Gen. Stat. §163-197(1) 
(R.I., 23a).

Petitioner’s removal petition invoked 28 U. S. C. §1443 
(1964), the civil rights removal statute. It alleged that 
the prosecution against him was maintained for the sole 
purpose and effect of harassing him and punishing him 
for, and deterring him and other Negroes from, exercising 
their right to vote (R.I., 25a), and that the conduct with 
which he was charged was protected by the First, Four­
teenth and Fifteenth Amendments and by federal civil 
rights statutes, including 42 U. S. C. §1971 (R.I., 24a-25a).3

1 See, e.g., Hawkins v. North Carolina Dental Society, 355 F. 2d 
718 (4th Cir. 1966) ; Hawkins v. North Carolina State Board of 
Education, W. D. N. C., No. 2067 (decided April 4, 1966; three- 
judge court).

2 An amended petition was filed on April 26, 1965 (R. I., 26a).
3 Petitioner had earlier moved the Superior Court of Mecklen­

burg County to quash the indictments against him on the grounds, 
inter alia, that the statutes upon which the indictments were based 
were unconstitutionally vague and thus repugnant to the due



7

Specifically, it alleged that on the night of April 8, 1964, 
in his capacity as president of the Mecklenburg Organiza­
tion on Political Affairs, a civic affairs association, peti­
tioner engaged in a voter registration project to encourage 
Negroes in the community to register and vote in the forth­
coming federal and state elections (R.I., 20a). Petitioner 
visited the homes of prospective voters, determined 
whether they could read and write and were otherwise 
eligible for registration; encouraged those persons who 
were qualified to register to do so; and assisted them by 
providing transportation to the local high school which 
was nsed as a place of registration (R.I., 20a-21a). Upon 
petitioner’s arrival at the place of registration, there were 
many applicants waiting to be registered (R.I., 21a). The 
special registration commissioner, assertedly unfamiliar 
with the registration procedure, requested petitioner to 
assist her in registering the prospective Negro voters 
(R.I., 21a). Petitioner suggested, inter alia, that the oath 
be administered collectively rather than individually; the 
registration commissioner accepted this suggestion, ad­
ministered the oath and attested to the qualifications of 
the applicants (R.I., 20a-21a). These activities led to the 
indictments against petitioner (R.I., 21a-23a).

On April 26, 1965, the State filed a motion to remand, 
challenging the sufficiency of the petition to invoke fed­

process clause of the Fourteenth Amendment; that the indict­
ments were based upon alleged violations of statutes which, on 
their face and as applied to his conduct, infringed federal statutory 
and constitutional voting rights and the North Carolina Constitu­
tion; and that application of the literacy test referred to in the 
indictments was forbidden by 42 U. S. C. §1971 (1964), depriving 
petitioner of his rights under that statute (R.I., 7a-lla). This 
motion was denied (E.I., 12a-19a). After removal of the case, 
petitioner filed in the District Court a motion to dismiss based on 
substantially identical grounds (R.I., 27a-29a).



8

eral removal jurisdiction under 28 U. S. C. §1443 (1964) 
(R.I., 30a-31a).

The district court held no evidentiary hearing, but heard 
oral argument on the question of the sufficiency in law of 
the removal petition. On May 15, 1965, the district court 
remanded the case and a timely appeal was taken (R.I., 
32a-37a).

On August 16, 1966, the United States Court of Appeals 
for the Fourth Circuit, in a per curiam opinion by Judges 
Haynsworth and Bryan, affirmed the district court’s remand 
order. Two grounds for affirmance were cited (Appendix 
I, p. 2a):

1. The specific charges of the indictment contradicted 
the allegations of the removal petition.

2. This Court, in City of Greenwood v. Peacock, 384 
U. S. 808 (1966), had disallowed removal to federal court 
of a state criminal prosecution brought to harass the re­
moval petitioner and to punish him and other Negroes for, 
and deter them from, registering to vote.

As to the first ground of decision, Judge Sobeloff dis­
sented (Appendix I, pp. 5a, 8a). As to the second ground 
of decision, Judge Sobeloff concurred, stating that City 
of Greenwood v. Peacock, 384 U. S. 808 (1966), precluded 
him from holding that voting harassment prosecutions 
were removable to federal court (Appendix I, pp. 3a-8a).



9

REASONS FOR GRANTING THE WRIT

I.

Certiorari Should Be Granted to Reverse the Court of 
Appeals’ Holding That Federal Removal Jurisdiction 
May Be Defeated by the State’s Choice of Charges.

The majority of the Court of Appeals apparently took 
the view that civil rights removal should be disallowed 
whenever the factual allegations in a petition for removal 
are contradicted by the criminal charges against the peti­
tioner. No reasoning or authority was assigned for this 
proposition, which sub silentio overturns accepted practice 
in the federal courts.4 Judge Sobeloff disagreed, saying: 
“The test of removability is the content of the petition, 
not the characterization given the conduct in question by 
the prosecutor” (Appendix I, p. 8a).

The majority’s test threatens the right to removal given 
by Georgia v. Rachel, 384 U. S. 780 (1966). This Court, 
in Rachel, did not suggest that removal of state prosecu­
tions for acts protected by Title II of the Civil Rights Act 
of 1964 was limited to trespass prosecutions. So to limit 
Rachel would invite the State to defeat removal merely 
by charging persons sitting-in at protected public accom­
modations with, for example, breach of the peace instead

4 I t is well settled that, in dealing with removal petitions, whether 
in civil rights cases or others, the factual allegations of the petition, 
absent an evidentiary hearing, are to be taken as true. Kentucky 
v. Powers, 201 U. S. 1, 33-35 (1906); Wilson v. Republic Iron & 
Steel Co., 257 U. S. 92, 97-98 (1921).



10

of trespass.5 The present decision by a majority of the 
Fourth Circuit constitutes such an invitation. To preserve 
even the narrow right of removal allowed by Rachel, it is 
vital that this Court grant certiorari to review this wholly 
frustrating innovation in removal procedure.6

II.
Certiorari Should Be Granted to Clarify the Scope of 

This Court’s Decision in City of Greenwood v. Peacock, 
Which Was Extended by the Court Below So As To 
Bring It Into Conflict With Georgia v. Rachel.

Section 201(a) of the Civil Rights Act of 1964, 78 Stat. 
243, 42 U. S. C. §2000a(a) (1964), pp. 4-5 supra, gives all 
persons a right of service without racial discrimination 
in places of public accommodation. Section 203 of the Act, 
78 Stat. 244, 42 U. S. C. §2000a-2 (1964), p. 5, supra, 
assures the practical realization of that right by providing 
that no person shall “intimidate, threaten or coerce, or 
attempt to intimidate, threaten, or coerce” or “punish or 
attempt to punish” another in the exercise of the substan­
tive rights given by section 2QOOa(a). Similarly, R. S.

5 The danger posed by such an invitation is not merely specu­
lative. The State of Georgia is now charging persons who sought 
to enjoy non-discriminatory treatment in the place of public ac­
commodation involved in Rachel with crimes other than trespass. 
For example, those persons whose trespass convictions were re­
versed by this Court in Walker v. Georgia, 381 U. S. 355 (1965), 
are now being prosecuted for the same activities for crimes other 
than trespass. These prosecutions have been removed to the United 
States District Court for the Northern District of Georgia, Cr. 
Nos. 24701 and 24705.

6 Because the Fourth Circuit is one of the two federal circuits 
comprising the substantial bulk of the southern States, the present 
decision represents a critical obstruction of the right given in 
Rachel, even if it is not persuasive to the other courts of appeals.



11

§2004 (1875), 42 U. 8. C. §197L(a)(l) (1964), p. 3, supra, 
gives all persons a right to register and vote without 
racial discrimination. Section 131 of the Civil Eights Act 
of 1957, 71 Stat. 637, 42 TJ. S. C. §1971(b) (1964), pp. 3-4, 
supra, assures the practical realization of the latter right 
by providing that no person shall “intimidate, threaten, or 
coerce, or attempt to intimidate, threaten or coerce” 
another in the exercise of voting rights. And section 11(b) 
of the Voting Eights Act of 1965, 79 Stat. 443, 42 U. S. C. 
§1973i(b) (Supp. I, 1965), p. 4, supra, further assures 
protection of the voting right by providing that no person 
shall “intimidate, threaten, or coerce, or attempt to intimi­
date, threaten, or coerce any person for voting or attempt­
ing to vote or . . . for urging or aiding any person to 
vote or attempt to vote.”

In Georgia v. Rachel, supra, this Court sustained re­
moval under 28 U. S. C. §1443(1) (1964) of state criminal 
trespass prosecutions brought against Negroes for re­
fusing to leave places of public accommodation in which 
they were given a right of service without racial discrimina­
tion by §2000a. §2000a(a) was read as giving persons 
seeking restaurant service a right to insist upon such 
service without discrimination, and §2000a-2 was read as 
giving a concomitant right not to be prosecuted for that 
insistence.

In City of Greenwood v. Peacock, supra, this Court dis­
allowed removal of prosecutions against civil rights demon­
strators based upon their conduct in protesting the denial 
to Negroes of rights to register and vote given by §1971 (a) 
(1). Section 1971(a)(1) was read as not extending to per­
sons a right to protest racial discrimination in voting regis­
tration, as distinguished from a right to register, or to



12

assist others in registering, to vote without racial discrimi­
nation. Thus, §§1971 (b) and 1973i(b), which protect those 
persons directly engaging in the exercise of voting rights in 
the same way that §2000a-2 protects sit-ins, that is, against 
the coercive, intimidating and punishing effects of state 
prosecution for protected activity, were not called into 
play.

The only other possible distinction between Rachel and 
Peacock—namely, that §2000a-2 includes the word “pun­
ish” together with “intimidate, threaten or coerce” within 
its prohibition, while §§1971(b) and 1973i(b) do not—is so 
palpably insubstantial as to trivialize the significance of 
these important pieces of federal civil rights legislation. 
Yet, only this second and wholly impermissible distinction 
will support the decision below affirming remand of peti­
tioner’s case. For Dr. Hawkins, unlike the demonstrators 
in Peacock, was directly engaged in the process of regis­
tering prospective Negro voters, and the conduct for which 
he is prosecuted comes flush within the language of 
§1973i(b): “aiding any person to vote or attempt to vote.” 
His is clearly conduct for which one of the “specific pro­
visions of a federal pre-emptive civil rights law”— 
§1973i(b)—“confers immunity from state prosecution.” 
Peacock, supra, at 826, 827. The decision of the Court of 
Appeals extending Peacock to deny removal in his case, 
therefore, calls imperatively for review by this Court if 
Rachel is not to be reduced to trifling and rationally un- 
supportable dimensions.



13

III.
Certiorari Should Be Granted to Reconsider City of 

Greenwood v. Peacock Insofar as That Case Indicates 
Disallowance of Federal Civil Rights Removal Jurisdic­
tion of State Criminal Prosecutions Brought Solely to 
Harass and Intimidate Negroes and to Punish Them for, 
and Deter Them From, Exercising Their Right to Vote.

In authorizing removal to a federal court, under 28 
U. .S. C. §1443(1) (1964), of state criminal charges for con­
duct immunized from prosecution by federal laws providing 
for equal civil rights, this Court in Georgia v. Rachel, supra, 
recognized the practical effect of such charges. The mere 
pendency of state prosecutions, without more, was properly 
seen to defeat the meaningful exercise of federally pro­
tected rights because, regardless of their outcome, these 
prosecutions serve to punish the defendants for, and in­
timidate and deter them from, exercising their federal 
rights. Therefore, a removal petitioner was held to be 
“denied” his federal rights by prosecution in the state 
court system whenever a federal law providing for equal 
civil rights immunized his conduct from prosecution.

This Court said (384 U. S. at 805):
It is no answer in these circumstances that the de­

fendants might eventually prevail in the state court. 
The burden of having to defend the prosecutions is it­
self the denial of a right explicitly conferred by the 
Civil Rights Act of 1964 as construed in Hamm v. City 
of Rock Hill [379 U. S. 306],

The federal law successfully relied upon by the removal 
petitioners in Rachel was Title II of the Civil Rights Act



14

of 1964, pp. 4-5, supra, protecting the right of equal access 
to places of public accommodation. Unless Congress has de­
termined that voting rights are less worthy or needful of 
federal protection than the right to equal public accom­
modations, or unless it has failed to protect the former 
rights by similarly “specific provisions of a federal pre­
emptive civil rights law,” City of Greenwood v. Peacock, 
supra, 384 U. S. at 826, then state prosecutions brought 
solely to harass and intimidate Negroes and to punish them 
for, and deter them from, exercising their right to vote 
should likewise be removable to federal court.

Neither Congress nor this Court has relegated voting 
rights to such a subordinate position. In the Civil Rights 
Acts of 1957,7 I960,8 1964,9 and 1965,10 Congress has en­
acted a comprehensive scheme for the protection of voting 
rights, a legislative scheme certainly no less protective than 
Title II of the Civil Rights Act of 1964. Analysis of this 
scheme renders it “difficult to conceive that Congress in­
tended to place voting rights guarantees on a lower plane 
of protection than the right to equal public accommoda­
tions” (Opinion of Judge Sobeloff below, Appendix I, p. 
8a). And this Court has long recognized that the right 
to vote is a fundamental right, “because preservative of all 
rights” (Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886)). 
In Reynolds v. Sims, 377 U. S. 533, 561-62 (1964), the 
Court said: “Undoubtedly, the right of suffrage is a funda­
mental matter in a free and democratic society. Especially 
since the right to exercise the franchise in a free and unim­

7 Act of September 9,1957, Pub. L. 85-315, 71 Stat. 637.
8 Act of May 6,1960, Pub. L. 86-449, 74 Stat. 90.
9 Act of July 2,1964, Pub. L. 88-352, 78 Stat. 241.
10 Act of August 6,1965, Pub. L. 89-110, 79 Stat. 437.



15

paired manner is preservative of other basic civil and 
political rights, any alleged infringement of the right of 
citizens to vote must be carefully and meticulously scruti­
nized.” 11

If City of Greenwood v. Peacock, supra, has disallowed 
federal civil rights removal jurisdiction as a protection of 
federal voting rights, it has disallowed too much. In Part 
II, supra, of its petition for certiorari, petitioner has de­
scribed the two possible grounds of distinction between 
Peacock and Rachel. One, turning on the adventitious in­
sertion of the Avord “punish” in Title II of the Civil Rights 
Act of 1964, is plainly less plausible than the other. But 
both are equally neglectful of profound and pervasive fed­
eral constitutional and statutory commitments to effective 
protection of the American citizen’s right to the franchise 
without racial discrimination.

Peacock was a victim of diffuse presentation in this 
Court. Confronted by a welter of factual situations and by 
a statute having an obscure text, a muddy history, a broad 
range of alternative plausible readings and no authoritative 
construction by this Court for 60 years, presentation was 
necessarily dispersed and unfocused. The result was an 
opinion by the Court which cut too broadly, ignoring the 
special position of federal voting rights in our federal sys­
tem and the exhaustive scheme of congressional legislation 
designed to protect those rights.

With all deference, it is submitted the language and in­
tent of federal voting legislation12 plainly enable petitioner

11 See also, Harper v. Virginia Board of Elections, 383 U. S. 663, 
667-68 (1966) ; United States v. Baines, 362 U. S. 17, 27 (1960).

12 The Voting Rights Act of 1965 Avas not enacted until peti­
tioner’s case was on appeal. HoAvever, in order to promote effi-



16

and others subjected to prosecutions which repress Negro 
voting registration activity to meet the test of removal 
announced in Georgia v. Rachel, supra. Title 42 U. S. C. 
§1971 (b) (1964),13 pp. 3-4, supra, provides an ample declara­
tion of congressional intention to immunize from state 
prosecution a person against whom state criminal charges 
are brought with the sole purpose and effect of harassing 
and intimidating him and other Negroes and punishing 
them for, and deterring them from, exercising their right to 
vote. The United States Court of Appeals for the Fifth 
Circuit has so held, and its reasoning and authority are 
persuasive. United States v. Wood, 295 F. 2d t72 (5th Cir. 
1961), cert. den. 369 U. S. 850 (1962).

In Wood, the Fifth Circuit ordered a federal injunction 
against the state prosecution of John Hardy, a Negro 
voter registration worker in Walthall County, Mississippi, 
for peacefully attempting to encourage Negro citizens to 
attempt to register to vote. Hardy had been arrested, with­
out cause, for breach of the peace. The court held that the 
prosecution of Hardy, regardless of its outcome, would 
effectively intimidate Negroes in the exercise of their right 
to vote in violation of 42 U. S. C. §1971 (b) (1964).“

As a matter of language, 42 U. S. C. §1971(b) (1964), is 
broad enough to cover the case of official intimidation

eiency of judicial administration, its impact upon petitioner’s case 
should be evaluated here, since not to do so would compel peti­
tioner to file a second petition for removal, were removal under 
the other voting rights acts disallowed. See Georgia- v. Rachel, 
supra.

“ Enacted in the Civil Eights Act of 1957, §131, 71 Stat. 637.
14 Wood was followed in United States v. Clark, 249 F. Supp. 

720 (S. D. Ala. 1965) (three-judge court).



17

through abuse of the state criminal process. “If, as alleged 
in the removal petition, prosecution against persons as­
sisting in a Negro voter registration drive is racially mo­
tivated, this is an ‘attempt to intimidate, threaten, or 
coerce’ Negroes in the exercise of their right to vote” (Opin­
ion of Judge Sobeloff, Appendix I, p. 6a). Moreover, the 
legislative history of 42 U. S. C. §1971 (b) (1964), canvassed 
in Wood, 295 F. 2d at 781-82, compels the conclusion “that 
Congress contemplated just such activity as is here alleged 
—where the state criminal processes are used as instru­
ments for the deprivation of constitutional rights” (295 
F. 2d 781).

Sec. 11(b) of the Voting Eights Act of 1965, p. 4, 
supra, is of particular significance here for two reasons. 
First, it has signified congressional acceptance of the 
Wood construction of §1971 (b) in that it specifically pro­
scribes any “attempt to intimidate, threaten, or coerce any 
person for urging or aiding any person to vote or attempt 
to vote.” This should set to rest whatever doubt §1971 (b) 
may have left that petitioner, himself previously regis­
tered to vote, merits the protection of federal voting legis­
lation in aiding others to do so. Second, it has retained the 
“intimidate, threaten or coerce” formula of §1971(b), ap­
parently deeming it sufficient to cover the case of official in­
timidation through harassment prosecutions—a case un­
doubtedly recognized by the 89th Congress as an important 
means of repression of persons aiding other persons to 
register to vote. Thus it can be seen that there is no 
magic to the language “punish or attempt to punish” of Sec. 
203(c) of the Civil Eights Act of 1964 which qualifies it 
alone to combat harassment prosecutions violative of im­
portant federal rights.



18

The need for a protective removal jurisdiction over vot­
ing intimidation cases has been sufficiently stated by Judge 
Sobeloff (Appendix I, p. 6a):

If Georgia is forbidden to prosecute sit-ins under 
the public accommodations provisions of the 1964 Act, 
North Carolina would likewise seem to be forbidden to 
prosecute Dr. Hawkins for assisting in the exercise of 
[voting] rights.

* * * * *

It is immaterial that Dr. Hawkins himself was not 
seeking to register; it is enough that he was assisting 
other Negroes to do so. If the law’s protection cannot 
be invoked by the more intelligent and better-educated 
Negro who furnishes leadership and guidance to others 
of his race, the purpose of the Voting Eights Act will 
be severely impaired.

Negroes’ rights are as effectively frustrated by prose­
cutions arising out of the attempt to exercise voting 
rights as by prosecutions growing out of the assertion 
of the right to equal accommodations. The use of the 
criminal process for the purposes of intimidation, I 
submit, would logically be proscribed in both cases.

Permitting appellant to prove in a federal evidentiary 
hearing that the state prosecution against him is nothing 
more than an attempt to stifle the exercise of the right to 
vote by Negroes in Mecklenburg County, North Carolina 
will not “work a wholesale dislocation of the historic re­
lationship between the state and federal courts in the 
administration of the criminal law” (Peacock, supra, 384 
U. S. at 831). Rather, it will vindicate respect for that law.



19

CONCLUSION
The writ of certiorari should be granted to review and 

reverse the judgment of the Court of Appeals.

Respectfully submitted,

J ack Greenberg

Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

A nthony  G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

J. L eV onne Chambers

405% East Trade Street 
Charlotte, North Carolina

Thomas W yche

2500 Beatties Ford Road 
Charlotte, North Carolina

Charles V . B ell

112 South Irwin Avenue 
Charlotte, North Carolina

Attorneys for Petitioner



A P P E N D I C E S



APPENDIX I

Opinion of United States Court of Appeals 
for the Fourth Circuit

UNITED STATES COURT OF APPEALS 
F oe, the F ourth Circuit 

No. 10,062

S tate of N orth Carolina, 

versus
Appellee,

R eginald A. H aw kins,
Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF NORTH CAROLINA, AT CHARLOTTE

J .  BRAXTON CRAVEN, JR ., DISTRICT JUDGE

(Argued April 7, 1966 Decided August 16, 1966.)

B e f o r e  :
H aynsworth, Chief Judge, and 

S obeloff and B ryan, Circuit Judges.

P er Curiam :

Dr. Hawkins, a dentist, was indicted by a state grand 
jury charged with unlawful interference with a voting regis­
tration commissioner in the discharge of her duties and with 
the unlawful procurement of the registration of four un-



2a

qualified voters. He undertook to remove the prosecution to 
the District Court. We affirm the order of remand.

In the removal petition, it is alleged that he merely ren­
dered requested assistance to the commissioner, that he 
made no representations about the qualifications of any 
voter, that the state’s purpose was to harass and deter 
him, and, in conclusionary language, that he could not 
obtain a fair trial in North Carolina’s courts. His allega­
tions as to what transpired on the particular occasion are 
in contradiction of the specific charges of the indictment. 

It is clear that this is not a case removable under 28
u. S. C. A. § 1443. Compare City of Greenwood v. Peacock, 
384 H. S. 808, with State of Georgia v. Rachel, 384 U. S. 
780; See Baines v. City of Danville, 384 U. S. 890; affirming 
Baines v. City of Danville, 4 Cir., 357 F. 2d 756; and Wallace
v. Virginia, 384 H. S. 891, affirming Commonwealth of Vir­
ginia v. Wallace, 4 Cir., 357 F. 2d 105.

Affirmed.

S obeloff, Circuit Judge, concurring specially:
Appellant, Dr. Reginald A. Hawkins, is a Negro dentist 

practicing in Charlotte, North Carolina, who has engaged 
in civil rights activities. E.g., see Hawkins v. North Caro­
lina Dental Society, 355 F. 2d 718 (4th Cir. 1966). On 
September 7, 1964, he was indicted by the Grand Jury of 
Mecklenburg County, North Carolina, on charges of un­
lawfully interfering with a special voting registration com­
missioner, North Carolina General Statutes § 163-196(3), 
and unlawfully and fraudulently procuring the registration 
of certain persons not qualified to vote under North Caro­
lina law, in violation of § 163-197 (h) of the statute. The 
prosecutions were removed to the District Court for the



3a

Western District of North Carolina, pursuant to 28 U. S.
C. A. §§ 1443 et seq., but that court remanded to the state 
court, and this appeal followed.

The removal petition recites inter alia, that on the night 
of April 8,1964, in his capacity as president of the Mecklen­
burg Organization on Political Affairs, Dr. Hawkins was 
engaged in a voters’ registration campaign to encourage 
Negroes in the community to register and vote in the forth­
coming federal and state elections. Petitioner, and pre­
sumably others participating in the drive, visited the homes 
of prospective voters, determined whether they could read 
and write and were otherwise eligible for registration, en­
couraged qualified persons to register, and assisted them 
by providing transportation to the local high school which 
was used as a place of registration.

On petitioner’s arrival at the place of registration, there 
were a large number of applicants waiting to be registered. 
The special registration commissioner, due to her asserted 
unfamiliarity with the procedure, requested Dr. Hawkins 
to assist in registering the prospective Negro voters. Dr. 
Hawkins suggested, among other things, that the oath be 
administered en masse rather than individually, and then 
the registration commissioner herself attested to the quali­
fications of the applicants and signed their applications. 
The indictments mentioned above allegedly grew out of 
these activities.

In Rachel v. Georgia,----- U. S .------ , 34 U. S. L. Week
4563 (1966), the Supreme Court authorized removal to the 
federal court of prosecutions against Negro defendants 
charged under a local trespass statute with failing to obey 
an order to leave a restaurant. Adhering generally to the 
interpretation of removal enunciated in the Rives-Powers



4a

line of decisions,1 the Court nevertheless held that removal 
was in order if a basis could be shown for a “firm predic­
tion that the defendant would be ‘denied or cannot enforce’
the specified federal rights in the state court.” Id. a t ----- ;
34 U. S. L. Week at 4570. That basis was found in the 
public accommodations section of the Civil Rights Act of 
1964, which grants all persons, regardless of their race, 
a right to be served in places of public accommodation, and 
further prohibits the state from punishing or attempting 
to punish any person for exercising those rights. Civil 
Rights Act of 1964, § 203(c). 42 U. S. C. A. § 2000a-2 
(1964). The Court went on to hold that:

“Hence, if as alleged in the present removal petition, 
the defendants were asked to leave solely for racial 
reasons, then the mere pendency of the prosecutions 
enables the federal court to make the clear prediction 
that the defendants will be ‘denied or cannot enforce in 
the courts of [the] state’ the right to be free of any 
‘attempt to punish’ them for protected activity.” Ibid. 
at p .----- .

Since the removal petition in Rachel had been remanded 
by the District Court to the state court without a hearing, 
the Supreme Court ordered the District Court to conduct 
a hearing to determine the truth of the petitioners’ allega­
tions that they had been ordered to leave the restaurant 
solely for racial reasons. If that should be the finding of 
the District Court, said the Supreme Court, then “it will 
be apparent that the conduct of the defendants is ‘im­

1 See Kentucky v. Powers, 201 U. S. 1 (1906); Rives v. Virginia, 
100 U. S. 303 (1879) ; Strauder v. West Virginia, 100 U. S. 313
(1879) ; Rachel v. Georgia, supra a t ----- , 34 U. S. L. Week at
4565, n. 5.



5a

munized from prosecution’ in any court,” and the removal
petition should be allowed. Id. a t ----- ; 34 U. S. L. Week at
4571.

Rachel cannot fairly be construed to mean that removal 
may be had only where the facts precisely duplicate those 
presented there, he.: where a Negro is indicted under a 
state criminal statute for refusing to leave the premises 
of a place of public accommodation. The essence of the 
Rachel decision is that the federal court is empowered to 
determine the narrow question whether the activities giving 
rise to a charge in the state courts constitute conduct pro­
tected by a federal statute that provides for equal civil 
rights and prohibits the state from prosecuting persons 
engaged in that conduct.

The court’s opinion in the present case states that Dr. 
Hawkins’ “allegations as to what transpired on the par­
ticular occasion are in contradiction of the specific charges 
of the indictment,” and suggests that this is the ground for 
rejecting removal. The Supreme Court’s opinion in Rachel 
makes clear, however, that conflict between the allegations 
in the removal petition and the criminal indictment is not 
ground for denying removal, provided that (1) the petition 
alleges facts which, if true, establish that the conduct is 
protected under a federal statute guaranteeing equal civil 
rights, and (2) there is a federal statutory prohibition 
against prosecution in the state courts for such conduct. 
Establishment of both propositions will impel the conclu­
sion that the petitioner “is denied or cannot enforce” his 
rights in the state court, justifying removal.

Here, as in the Rachel sit-in cases, Dr. Hawkins was 
engaged in assisting Negroes in the exercise of equal civil 
rights guaranteed by a federal statute, namely the Voting 
Eights Act of 1964. Section 1971(b) of that statute, orig­



6a

inally a part of the Civil Eights Act of 1957, specifically 
provides that:

“No person, whether acting under color of law or other­
wise, shall intimidate, threaten, coerce, or attempt to 
intimidate, threaten or coerce any other person for the 
purpose of interfering with the right of such other 
person to vote * * * 42 TJ. S. C. A. § 1971(b) (1964).
(Emphasis added.)

If, as alleged in the removal petition, prosecution against 
persons assisting in a Negro voter registration drive is 
racially motivated, this is an “attempt to intimidate, 
threaten or coerce” Negroes in the exercise of their right 
to vote. If Georgia is forbidden to prosecute sit-ins under 
the public accommodations provisions of the 1964 Act,2 
North Carolina would likewise seem to be forbidden to 
prosecute Dr. Hawkins for assisting in the exercise of 
rights under the voting provisions of the same act.3 Section 
203(c) of the public accommodations portion of the Civil 
Rights Act of 19644—the basis for permitting removal in 
Rachel—provides that “No person shall * # * (c) punish 
or attempt to punish any person for exercising or attempt-

~~*Hamm v. City of Eock Hill, 379 U. S. 306 (1965).
3 It is immaterial that Dr. Hawkins himself was not seeking to 

register; it is enough that he was assisting other Negroes to do so. 
If  the law’s protection cannot be invoked by the more intelligent 
and better-educated Negro who furnishes leadership and guidance 
to others of his race, the purpose of the Voting Eights Act will be 
severely impaired.

Negroes’ rights are as effectively frustrated by prosecutions aris­
ing out of the attempt to exercise voting rights as by prosecutions 
growing out of the assertion of the right to equal accommodations. 
The use of the criminal process for the purposes of intimidation, 
I submit, would logically be proscribed in both cases.

4 42 U. S. C. A. § 2000a-2 (1964).



7a

ing to exercise any right or privilege secured by section 201 
or 202 [equal access to public accommodations].” 5 (Em­
phasis added.) Section 1971(b) of the voting rights pro­
visions employs a more general prohibition against any 
attempted intimidation, threats, or coercion by persons “act­
ing under color of law or otherwise.” 6 Literal comparison 
of the two provisions suggests that § 1971(b) is a more, 
not less, sweeping prohibition of official acts of harassment 
against equal civil rights than the limited proscription of 
§ 203(c), since “attempts to punish” are only one means 
of coercing, threatening, or intimidating.7

5 Section 201 provides in its entirety:
“No person shall (a) withhold, deny, or attempt to withhold 

or deny, or deprive or attempt to deprive, any person of any 
right or privilege secured by section 201 or 202, or

(b) intimidate, threaten, or coerce any person with the pur­
pose of interfering with any right or privilege secured by 
section 201 or 202, or

(e) punish or attempt to punish any person for exercising 
or attempting to exercise any right or privilege secured by 
section 201 or 202.” 42 U. S. C. A. § 2000a-2 (1964).

6 “No person, whether acting under color of law or otherwise,
shall intimidate, threaten, coerce, or attempt to intimidate, threaten 
or coerce any other person for the purpose of interfering with the 
right of such other person to vote * * 42 U. S. C. A. § 1971(b)
(1964). (Emphasis added.)

7 Section 203(6) prohibits acts of intimidation, threats, and 
coercion, but does not contain the key words “acting under color 
of authority of law” -which are found in the comparable provision 
of § 1971. § 203(c) cures this omission by specifying that no one 
shall “punish or attempt to punish” any person for exercising or 
attempting to exercise his rights. Having eliminated acts of state 
officials from part (b) of § 203, they are thus in effect restored by 
paragraph (c).

In other words, § 1971(b) of the voting rights provisions seems 
to express in different language the principle contained in § 203(c) 
of the public accommodations clauses—that the states, acting 
through state officials are forbidden to employ any form of at­
tempted intimidation, coercion, or threats, including “attempts to 
punish.” Thus, § 1971(b) performs the same function as § 203(c),



8a

However, in Peacock v. City of Greenwood, ——  IJ. S.
----- , 34 U. S. L. Week 4572 (1966), where the voting rights
provisions of § 1971 were invoked in support of a removal 
claim, the Supreme Court held that “no federal law confers 
immunity from state prosecution [s]” growing out of at­
tempts to secure the right to vote. Since § 1971 did not 
contain the specific prohibition against state action that 
“punish[es] or attempts to punish” present in Rachel the 
Court distinguished voting rights cases from public ac­
commodations cases, and refused to permit removal. Under 
this interpretation of § 1971(b), which is binding upon me, 
I agree that the present case must be held not entitled to 
removal.

On that ground I concur in today’s per curiam opinion, 
and not on the ground therein stated, that the allegations 
of the petitioner are “in contradiction of the specific charges 
of the indictment.” The test of removability is the content 
of the petition, not the characterization given the conduct 
in question by the prosecutor.

and suggests that the two clauses should be given the same effect. 
In this view the Supreme Court’s interpretation of § 203(c) in 
Hamm v. City of Rock Hill, supra, 379 IJ. S. 306 (1965), would 
apply with equal force to the prohibitions of § 1971(b). I t  is 
difficult to conceive that Congress intended to place voting rights 
guarantees on a lower plane of protection than the right to equal 
public accommodations.



9a

Judgment of United States Court of Appeals 
for the Fourth Circuit

UNITED STATES COURT OF APPEALS 

F ob the F ourth Circuit 

No. 10,062

S tate of N orth Carolina,

vs.
Appellee,

R eginald A. H aw kins,
Appellant.

A ppeal from the United States District Court for the 
Western District of North Carolina.

T his cause came on to be heard on the record from the 
United States District Court for the Western District of 
North Carolina, and was argued by counsel.

On consideration whereof, It is now here ordered and 
adjudged by this Court that the judgment of the said Dis­
trict Court appealed from, in this cause, be, and the same 
is hereby, affirmed with costs.

Clement F . H aynsworth J r.
Chief Judge, Fourth Circuit



10a

APPENDIX II

Opinion of United States District Court 
for the Western District of North Carolina

At its September-October term, 1964, the Grand Jury of 
Mecklenburg County returned indictments against Dr. 
Reginald A. Hawkins charging, without reference to any 
particular statute, violations of the election laws of North 
Carolina. On November 12, 1964, Dr. Hawkins removed 
these cases (in this court given the single number 1943) 
from the Superior Court of Mecklenburg County to this 
court pursuant to 28 U. S. C. A. Sections 1443 and 1446. 
The cases were set for trial before the undersigned district 
judge and a jury for April 26, 1965. On that day, and for 
the first time, the Solicitor for the State moved the court to 
remand the cases to the Superior Court of Mecklenburg 
County, questioning federal jurisdiction. The trial of the 
cases was thereupon postponed and the question of juris­
diction was set down for argument and heard on May 12, 
1965.

The court has been helped tremendously by an excellent 
historical brief filed by counsel for Dr. Hawkins.

It is conceded that there is no federal jurisdiction to try 
these criminal cases arising upon indictments in the state 
court unless it be under 28 U. S. C. A. Section 1443, which 
reads as follows:

“Section 1443. Civil rights cases
“Any of the following civil actions or criminal prose­

cutions, commenced in a State court may be removed 
by the defendant to the district court of the United



l la

States for the district and division embracing the place 
wherein it is pending:

“ (1) Against any person who is denied or cannot 
enforce in the courts of such State a right under any 
law providing for the equal civil rights of citizens 
of the United States, or of all persons within the 
jurisdiction thereof;

“(2) For any act under color of authority derived 
from any law providing for equal rights, or for refus­
ing to do any act on the ground that it would be in­
consistent with such law.”

Since Virginia v. Rives, 100 U. S. 313 (1880), and Ken­
tucky v. Powers, 201 U. S. 1 (1906), it has been well settled 
that removal under present Section 1443(1) was allowable 
only on a claim of facial unconstitutionality of a statute or 
constitutional provision. In Rives the Court said that the 
inability to enforce federal rights of which the removal 
statute speaks “is primarily, if not exclusively, a denial of 
such rights, or an inability to enforce them, resulting from 
the Constitution or laws of the State, rather than a denial 
first made manifest at the trial of the case”. Virginia v. 
Rives, supra, 100 U. S. at 319.

It may well be argued that subsequent cases have put 
too narrow a construction upon Rives. The Fifth Circuit 
has noted, without approval or disapproval, that it may be 
argued today that the Supreme Court would recognize the 
right of removal under Section 1443(1) even where no legis­
lative denial of rights is shown. Rachel v. State of Georgia, 
342 F. 2d 336 at 339 (5th Cir. 1965). It would be presumptu­
ous for a district court to anticipate such an interpretation 
of Section 1443(1) by the Supreme Court. The Court of



Appeals for the Fifth Circuit in Rachel also declined the 
invitation to do so.

The pertinent election laws of North Carolina, allegedly 
violated by Dr. Hawkins, are facially constitutional. Inter­
ference with an election registrar or usurpation of the au­
thority of such a registrar is clearly the kind of conduct 
which may be made punishable by a state. Section 1443(1) 
has not yet been expanded beyond the narrow confines of 
Powers v. Rives, supra. There is no federal jurisdiction 
under 28 U. S. C. A. Section 1443(1).

Petitioner next contends that, in any event, jurisdiction 
is conferred upon this court under subsection (2) of 28 
U. S. C. A. Section 1443 for the reason that Dr. Hawkins 
acted under “color of authority” to peacefully assist in regis­
tering qualified persons to vote, and to extend suffrage, 
under 42 U. S. C. A. Section 1971.

It is not altogether clear that Dr. Hawkins is one of 
those persons who may act “under color of authority”. 
Quite possibly 28 U. S. C. A. Section 1443(2) may be availed 
of only by persons who are government officers or persons 
acting on their behalf or at their instance. See Roard of 
Education of City of New York v. Citywide Committee for 
Integration, 342 F. 2d 284 at 285 (2d Cir. 1965).

But, assuming, without deciding, that Dr. Hawkins is one 
of those persons who may come within the statute, it is quite 
clear, in my opinion, that he did not act under “color of 
authority” within the meaning of subsection (2) of Sec­
tion 1443. Nothing in any federal statute called to my at­
tention, nor in the Federal Constitution, directs or au­
thorizes Dr. Hawkins to act as a North Carolina election 
registrar, or to interfere with a duly-authorized registrar, 
or to usurp the functions of such a registrar. However



13a

worthy Ms motives and activity may have been with re­
spect to his legitimate desire to further suffrage, the laws 
and constitutional provisions relating to the right to vote 
are permissive rather than mandatory, and required of Dr. 
Hawkins no action. Dr. Hawkins fails to point to any fed­
eral law providing for equal rights or the right to vote 
which gives him authority or direction to act in the way 
and manner alleged by the State in its indictments.

“When the removal statute speaks of ‘color of authority 
derived from’ a law providing for equal rights, it refers to 
a situation where the lawmakers manifested an affirmative 
intention that a beneficiary of such a law should be able 
to do something and not merely to one where he may have 
a valid defense or be entitled to have civil or criminal lia­
bility imposed on those interfering with him.” People of the 
State of New York v. Galamison, 342 F. 2d 255 at 271 (2d 
Cir. 1965).

The construction of Section 1443(2) urged by Dr. Haw­
kins would be a startling innovation having immeasurable 
impact on federal jurisdiction. That the statute is nearly 
one hundred years old and has never been so construed is 
some indication of the novelty of the theory now advanced.

Since there is no jurisdiction, Dr. Hawkins’ motion to 
dismiss the indictment is not reached.

The motion to remand will be allowed and an appropriate 
order will be entered in accordance with this Memorandum 
of Decision.

This 15th day of May, 1965.

J .  B .  C r a v e n , J r .

J. Braxton Craven, Jr., Chief Judge 
Chief Judge

United States District Court for the 
Western District of North Carolina



14a

Judgment of United States District Court 
for the Western District of North Carolina

Order of R emand

For the reasons stated in a Memorandum, of Decision 
filed simultaneously, I t  is adjudged that these cases (desig­
nated in this court as Cr. No. 1943) were removed improvi- 
dently, and without jurisdiction, and it is accordingly 
ordered that the cases he, and they hereby are, remanded to 
the Superior Court of Mecklenburg County.

A certified copy of the Order of Remand shall be mailed 
by the Clerk of this court to the Clerk of the Superior Court 
of Mecklenburg County.

This 15th day of May, 1965.

J .  B .  C r a v e n , J r .,

J. Braxton Craven, Jr., Chief Judge 
United States District Court for the 
Western District of North Carolina



38