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Brief Collection, LDF Court Filings. Allen v. State Board of Elections Appendix, 1967. 46e24792-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f42d863b-0f7b-4d98-b753-0381fe9a9a34/allen-v-state-board-of-elections-appendix. Accessed August 19, 2025.
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APPENDIX
Supreme Court of the United States
OCTOBER TERM, 1968
No. 3
RICHARD ALLEN, ET AL.,
PETITIONERS,
STATE BOARD OF ELECTIONS, ET AL.
ON APPEAL PROM THE UNITED STATES DISTRICT COURT
POR THE EASTERN DISTRICT OP VIRGINIA
JURISDICTIONAL STATEMENT FILED SEPTEMBER 23, 1967
JURISDICTION POSTPONED JUNE 10, 1968
JAM IES M. NABRilT, IU
TABLE OF CONTENTS
PAGE
Docket Entries ................................. ............................. la
Complaint.......................................................................„ 4a
Affidavit of Richard Allen ............................................ 11a
Affidavit of Lena W. Dunn ..... ........................ ............. 13a
Affidavit of Washington Moore ................................... 15a
Affidavit of McKinley Dunn ......................................... 17a
Affidavit of Nora Tyler ................................................ 19a
Affidavit of James Gilbert Tyler .................................. 21a
Affidavit of Fannie M. Brown....................................... 23a
Affidavit of Patrick H. Brown ........................... ,........ 25a
Affidavit of James Donikens ......................................... 27a
Notification and Request for Designation of Three-
Judge Court................................................................. 29a
Designation of Three-Judge Court .............................. 30a
Pre-Trial Order ............................................ 31a
Answer of State Board of Elections ..... .................... 33a
Answer of Robert E. Garnett and J. F. Lipscomb .... 35a
Answer of Thomas Brown ........................................... 38a
Answer of Paul B ell...................... 40a
Answer of Mark Grizzard, Benjamin Griffin and Forest
Lankford............ 42a
Request for Admissions .............................................. 44a
Response to Plaintiffs’ Request for Admissions Filed
by State Board of Elections ............... ................... . 53a
li
PAGE
Response to Plaintiffs’ Request for Admissions Filed
by Robert E. Garnett and J. F. Lipscomb............. 55a
Response to Plaintiffs’ Request for Admissions Filed
by Thomas Brown and Paul Bell ............................ 56a
Response to Plaintiffs’ Request for Admissions Filed
by Mark Grizzard, Forest Lankford and Benjamin
Griffin ......................................................................—- 58a
Defendants’ Exhibit #1—Letter to All Registrars ..... 60a
Defendants’ Exhibit # 2 —Memo to General Registrars 62a
Defendants’ Exhibit # 3 —Letter to Secretaries of
Electoral Boards ................................................ -...... 63a
Defendants’ Exhibit # 4 —Bulletin to All Judges of
Elections...................................................................... 64a
Motion for Summary Judgment............... ................... 66a
Memorandum of the Court ........................................... 67a
Judgment ................................................... -................... 73a
Plaintiffs’ Notice of Appeal ..................................... .... 74a
Motion to Enlarge Time for Filing Jurisdictional
Statement ...... ...................— ....................... -....-....... 77a
Order Granting Motion to Enlarge Time to File Juris
dictional Statement ...................... ............................. 78a
Order Extending Time for Docketing Appeal.............. 79a
Order of United States Supreme Court Postponing
Jurisdiction ................................................................- 80a
Docket Entries
DATE
11-28-66
11-28-66
11- 30-66
12- 13-66
12-19-66
12-23-66
12-27-66
12-28-66
1- 9-67
2- 20-67
2-22-67
2-24-67
2-27-67
PBOCEEDINGS
Complaint filed and summons issued.
Notification and Request for Designation of
Three Judge Court filed.
Designation of Albert V. Bryan, U. S. Circuit
Judge; Harrison L. Winter, U. S. Circuit Judge
and John D. Butzner, Jr., U. S. District Judge
ent. 11-30-66. Copies of pleadings mailed A. V.
Bryan and delivered to Harrison L. Winter.
Marshal’s return on summons as to all defts.
executed and filed.
Pre-trial order ent. 12-19-66. Copies mailed
as directed.
V Answer of State Board of Elections filed.
Copies mailed Judges.
Answer of Robert E. Garnett and J. F. Lips
comb filed (copies to Judges).
Answer of Thomas Brown and Paul Bell
filed (copies mailed to Judges).
Answer filed by defts. Mark Grizzard, Benj.
Griffin & Forest Lankford.
Plaintiffs’ request for admissions, filed.
Response of State Board of Elections to plain
tiffs’ request for admissions, filed.
Response to pltf’s. request for admissions filed
by Robert E. Garnett & J. F. Lipscomb.
Response to pltfs. request for admissions filed.
2a
Docket Entries
DATE PROCEEDINGS
3- 1-67 Response to pltfs. request for admissions filed.
3-17-67 Plfs’ pre-trial brief rec’d.
3-21-67 List of witnesses that may be called by defts.
3-22-67 Motion for summary judgment filed by pltf.
3-22-67 List of witnesses that may be called to testify
at hearing received & filed by pltfs. Certificate
& exhibits attached.
3- 30-67 Brief on behalf of defts., rec’d.
4- 11-67 T r ia l P r o c e e d in g s : Before: Hon. Albert V.
Bryan and Harrison L. Winter, H. 8. Circuit
Judges and Hon. John D. Butzner, Jr., U. S.
District Judge, sitting as a three-judge court.
Parties appeared by counsel, The Attorney Gen
eral’s Office of Virginia and R. D. Mcllwaine,
III, representing State Board of Elections, Wil
liam C. Carter representing defendants Garnett
and Lipscomb, H. Benj. Vincent representing
defendants Lankford and Griffen and Wm. R.
Blandford representing defendants Brown and
Bell. Messrs. Harold M. Marsh and S. W.
Tucker represented plaintiffs. Issues joined.
Case argued by Messrs. Marsh and Tucker for
plaintiffs and Mr. R. D. Mcllwaine, III, on
behalf of all defendants. Adjournment.
5- 2-67 Opinion of the Court filed.
5- 2-67 Judgment order dismissing complaint and strik
ing action from docket, with costs taxed against
plfs., ent. 5-2-67 by three judge court. Copies
3a
DATE
6-29-67
8-24-67
8-24-67
8- 24-67
9- 8-67
Docket Entries
PBOCEEDINGS
delivered by Judge Butzner’s office of Opinion
and order.
Notice of appeal to the Supreme Court of the
U. S. filed by pltfs.
Order granting motion of plfs. to extend until
9-28-67 time to file their jurisdictional state
ment, ent. 8-24-67.
Motion to enlarge time for filing jurisdictional
statement filed by plfs.
Order extending time for docketing appeal to
and including 9-8-67 entered nunc pro tunc
8-8-67. Copies mailed counsel.
Appeal Record (2 Yols.) mailed to Clerk, Su
preme Court of U. S., Wash., D. C. $4.85 certi
fied mail, return receipt requested. Copies of
index mailed counsel.
4a
Complaint
IN THE UNITED STATES DISTRICT COURT
F ob the E astern District of V irginia
R ichmond Division
Civil A ction No...................
R ichard Allen, et al.,
vs.
Plaintiffs,
State B oard of E lections, et al.,
Defendants.
Complaint
1(a) Jurisdiction of this Court is invoked under Title
28, United States Code, Section 1331. This action arises
under the Fourteenth Amendment to the Constitution of
the United States and under Public Law 89-110, 79 Stat.
437, known as the Voting Rights Act of 1965 (42 U.S.C.
§1973, et seq.). The matter in controversy, exclusive of
interest and costs, exceeds the value of ten thousand
dollars.
1(b) Jurisdiction is further invoked under Title 28,
United States Code, Section 1343 (3) and (4). This is
an action to redress and to secure equitable relief against
the deprivation, under color of State statute, regulation,
custom and usage, of the right to vote as secured by the
Constitution and statutes of the United States.
5a
Complaint
2(a) Plaintiffs seek a temporary restraining order and
an interlocutory injunction to prevent the defendant State
Board of Elections from making statement of the whole
number of votes given at the general election held No
vember 8, 1966 in the Fourth Congressional District of
Virginia for a member of the House of Representatives
in Congress, pending this Court’s decision of the issues
herein raised and compliance with such decision.
2(h) Plaintiffs seek a declaratory judgment holding that
the Equal Protection Clause of the Fourteenth Amend
ment forbids election officials of the Commonwealth of
Virginia under color of statute or otherwise 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 and included in the appropriate returns; such
privilege having been reserved to voters generally by
Section 28 of the Constitution of Virginia and, by Sec
tion 24-252 of the Code of Virginia, being purportedly
extended only to voters who can write.
2(c) Plaintiffs seek a declaratory judgment holding that
the Voting Rights Act of 1965 (43 U.S.C. §1973, et seq.)
forbids election officials of the Commonwealth of Virginia
to deny any citizen a right to vote which is equally un
restricted as that enjoyed by other citizens and the right
to have his vote counted and included in the appropriate
totals of votes cast, when the sole basis for such denial
is a failure of that citizen to demonstrate his ability to
write.
2(d) Plaintiffs seek an injunction restraining the State
Board of Elections and the other defendant election offi
cials from failing or refusing to count and include in their
6a
Complaint
respective official returns the votes given in the general
election held November 8, 1966 by the plaintiffs and
others for the person of their choice to be the member
of the House of Representatives from the Fourth Con
gressional District of Virginia whose name they inserted
on official ballots by means other than handwriting and,
also, an injunction restraining the State Board of Elec
tions and the other defendant election officials and their
successors in office from failing or refusing to count and
from requiring or permitting any other election official
to fail or refuse to count any vote hereafter given for
any person solely because the name of such person was
inserted on the official ballot otherwise than in the hand
writing of the voter.
3. Plaintiffs bring this suit as a class action, pursuant
to Rule 23(a) and (b)(1) and (3) of the Rules of Civil
Procedure, on behalf of all persons residing in the Fourth
Congressional District of Virginia who, at the general
election held November 8, 1966 for a member of the House
of Representatives, voted for a person not named on the
official ballot as printed by inserting the name of such
person on the ballot by means other than handwriting
and making a check, cross mark or line immediately be
fore the name thus inserted and whose votes thus cast
were not counted and included in the official returns.
4. Each of the plaintiffs is a citizen and a voter of
the Commonwealth of Virginia and is registered to vote
in one of the election precincts or wards of one of the
counties and cities which comprise the Fourth Congres
sional District of Virginia. The precinct or ward and
the county or city in which each plaintiff is registered to
vote is stated in his or her affidavit herewith filed.
7a
Complaint
5. At the general election held November 8, 1966 each
of the plaintiffs was furnished an official ballot on which
had been printed the names of two candidates for elec
tion to the House of Representatives from the Fourth
Congressional District of Virginia. Immediately under
the names of those two candidates each of the plaintiffs
inserted the name “S. W. Tucker” by pasting on the
official ballot a strip of paper on which that name had
been printed; each of the plaintiffs made a check, cross
mark or line on the ballot immediately preceding the
name thus inserted; and each of said ballots was duly
deposited into the ballot box.
6. In many of the election precincts within the Fourth
Congressional District of Virginia, a considerable number
of persons employed the procedure described in the next
preceding paragraph. Many did so because they are il
literate; some because they are not sufficiently literate to
write legibly; and others because arthritis or other physi
cal infirmities had impaired their penmanship.
7. The defendant State Board of Elections was created
by statute which is codified as Section 24-24 of the Code
of Virginia, 1950. The State Board of Elections is re
quired to so supervise and co-ordinate the work of the
county and city electoral boards as to obtain uniformity
in their practices and proceedings and to make such rules
and regulations not inconsistent with law as will be con
ducive to the proper functioning of such electoral boards.
(Section 24-25 of the Code of Virginia, 1950). Further,
it is required by statute (Section 24-285 of the Code of
Virginia 1950) that the State Board of Elections on No
vember 28, 1966 shall make statement of the whole number
8a
Complaint
of votes given at the general election held November 8,
1966 for members of the United States Senate and House
of Representatives.
8. Each of the other defendants was on November 8,
1966 a judge or clerk of election duly appointed by the
electoral board of his county or city for a precinct wherein
one of the plaintiffs was on and prior to that day duly
registered to vote.
9. On November 8, 1966 and after the polls had been
closed, it was the duty of the judges of election at each
of the several precincts or wards to count and ascertain
the number of votes cast for each person voted for and
to sign and attest returns showing the name of each per
son voted for, the office for which such person received
such votes and the number of votes he received at such
precinct or ward. Such returns as made by the judges
of election at the several precincts or wards in the coun
ties and cites which comprise the Fourth Congressional
District of Virginia are the bases from which the State
Board of Elections will make a statement of the whole
number of votes given at the general election held No
vember 8, 1966 in the Fourth Congressional District of
Virginia for a member of the House of Representatives
in Congress.
10. The judg*es of election in several of said precincts
and specifically those who are defendants herein failed
and refused to count and include in their respective re
turns any votes for any person whose name was inserted
on an official ballot otherwise than in the handwriting
of the voter. Hence the votes cast by the plaintiffs and
by others who inserted the name of the person voted for
9a
Complaint
by means other than handwriting were not counted and
included in the returns of total votes for the office of
member of the House of Representatives from the Fourth
Congressional District of Virginia.
Wherefore, the plaintiffs respectfully pray:
A. (1) That the Court issue a Temporary Restraining
Order restraining the defendant State Board of Elections
from making statement of the whole number of votes
given at the general election held November 8, 1966 in
the Fourth Congressional District of Virginia for a mem
ber of the House of Representatives in Congress, pending
this Court’s decision of the issues herein raised and com
pliance with such decision.
(2) That the Court convene a three-judge District Court,
as required by Titel 28, United States Code, Section 2281
and 2284.
(3) That the Court enter an interlocutory injunction
as required by Title 28, United States Code, Section 2281
until the issues herein raised will have been decided.
B. That the Court advance this action on the docket
and order a speedy hearing of this action according to
law, and upon such hearing
(1) That the Court enter a judgment declaring that
the Equal Protection Clause of the Fourteenth Amend
ment to the Constitution of the United States, and also
that the Voting Rights Act of 1965, invalidates so much
of Section 24-252 of the Code of Virginia, 1950, as amended
as purports to deny any voter, solely because of his
inability to write, the privilege of casting a secret ballot
10a
Complaint
for a person whose name is not printed on the official
ballots and having such ballot counted in the appropriate
returns; such privilege having been reserved to voters
generally by Section 28 of the Constitution of Virginia.
(2) That this Court enjoin and restrain the State Board
of Education and the other defendant election officials
from failing and refusing to count and include in their
respective election returns the votes given in the general
election held November 8, 1966 by the plaintiffs and others
for the person of their choice to be the member of the
House of Representatives from the Fourth Congressional
District of Virginia whose name they inserted on official
ballots by means other than handwriting.
(3) That this Court enjoin and restrain the State Board
of Elections and the other defendant election officials and
their successors in office, from failing or refusing to count
and from requiring or permitting any other election offi
cial to fail or refuse to count any vote hereafter given
for any person solely because the name of such person
was inserted on the official ballot otherwise than in the
handwriting of the voter.
/ s / S. W. T ucker
Of Counsel for Plaintiffs
H ell, T ucker & Marsh
214 East Clay Street
Richmond, Virginia 23219
J ames M. Nabrit, III
J ack Greenberg
10 Columbus Circle, Suite 2030
New York, New York 10019
Counsel for Plaintiffs
11a
Affidavit o f R ichard Allen
On the 8th day of November, 1966 I was a qualified
voter of the State of Virginia, duly registered as such
in Moss Election Precinct, in the County of Greensville.
On that day and at the voting place for that precinct I
was regularly furnished an official ballot on which had
been printed names of candidates for the respective offices
to be filled by the election then being held, including the
names “Watkins M. Abbitt” and “Edward J. Silverman”,
in that order, as candidates for election to the House of
Representatives from the Fourth Congressional District
of Virginia.
Immediately below the name of Edward J. Silverman
I inserted the name “S. W. Tucker” by pasting on the
official ballot a strip of paper on which that name had
been printed; and I made a cross mark jxj on the ballot
immediately preceding the name “S. W. Tucker” as so
inserted. I was then unable to legibly write the name
“S. W. Tucker” on the ballot.
Having thus voted for S. W. Tucker to be the member
of the House of Representatives from the Fourth Con
gressional District of Virginia, I folded the ballot with
the names of the candidates on the inside and handed
same to one of the judges of election who then put it
into the ballot box.
I am informed that my said vote and numerous other
votes cast in the same manner were not counted by the
judges and clerks of election serving at said precinct
and at many other precincts within the several counties
and cities which constitute the Fourth Congressional Dis
trict of Virginia.
12a
Affidavit of Richard Allen
I authorize suit in my name to require my vote and
other votes similarly east to be counted and included in
the official returns of the whole number of votes given
in said election for member of the House of Representa
tives from the Fourth Congressional District of Yirginia.
His
/&/ R xchabd X Allen
Marh
[Affidavit of Notary Public Omitted]
13a
Affidavit o f Lena W. D unn
On the 8th day of November, 1966 I was a qualified
voter of the State of Virginia, duly registered as such
in Moss Election Precinct, in the County of Greensville.
On that day and at the voting place for that precinct I
was regularly furnished an official ballot on which had
been printed names of candidates for the respective offices
to be filled by the election then being held, including the
names “Watkins M. Abbitt” and “Edward J. Silverman”,
in that order, as candidates for election to the House of
Representatives from the Fourth Congressional District
of Virginia.
Immediately below the name of Edward J. Silverman
I inserted the name “S. W. Tucker” by pasting on the
official ballot a strip of paper on which that name had
been printed; and I made a cross mark JxJ on the ballot
immediately preceding the name “S. W. Tucker” as so
inserted. I was then unable to legibly write the name
“S. W. Tucker” on the ballot.
Having thus voted for S. W. Tucker to be the member
of the House of Representatives from the Fourth Con
gressional District of Virginia, I folded the ballot with
the names of the candidates on the inside and handed
same to one of the judges of election who then put it
into the ballot box.
I am informed that my said vote and numerous other
votes east in the same manner were not counted by the
judges and clerks of election serving at said precinct
and at many other precincts within the several counties
and cities which constitute the Fourth Congressional Dis
trict of Virginia.
14a
Affidavit of Lena W. Dunn
I authorize suit in my name to require my vote and
other votes similarly cast to be counted and included in
the official returns of the whole number of votes given
in said election for member of the House of Representa
tives from the Fourth Congressional District of Virginia.
Her
/ s / Lena X Dunn
Mark
[Affidavit of Notary Public Omitted]
15a
Affidavit o f W ashington M oore
On the 8tli day of November, 1966 I was a qualified
voter of the State of Virginia, duly registered as such
in Moss Election Precinct, in the County of Greensville.
On that day and at the voting place for that precinct I
was regularly furnished an official ballot on which had
been printed names of candidates for the respective offices
to he filled by the election then being held, including the
names “Watkins M. Abbitt” and “Edward J. Silverman”,
in that order, as candidates for election to the House of
Representatives from the Fourth Congressional District
of Virginia.
Immediately below the name of Edward J. Silverman
I inserted the name “S. W. Tucker” by pasting on the
official ballot a strip of paper on which that name had
been printed; and I made a cross mark jx] on the ballot
immediately preceding the name “S. W. Tucker” as so
inserted. I was then unable to legibly write the name
“S. W. Tucker” on the ballot.
Having thus voted for S. W. Tucker to be the member
of the House of Representatives from the Fourth Con
gressional District of Virginia, I folded the ballot with
the names of the candidates on the inside and handed
same to one of the judges of election who then put it
into the ballot box.
I am informed that my said vote and numerous other
votes cast in the same manner were not counted by the
judges and clerks of election serving at said precinct
and at many other precincts within the several counties
and cities which constitute the Fourth Congressional Dis
trict of Virginia.
16a
Affidavit of Washington Moore
I authorize suit in my name to require my vote and
other votes similarly cast to be counted and included in
the official returns of the whole number of votes given
in said election for member of the House of Representa
tives from the Fourth Congressional District of Virginia.
His
/ $ / W ashington- X Moobe
Marti
[Affidavit of Notary Public Omitted]
17a
Affidavit o f M cKinley D unn
On the 8th day of November, 1966 I was a qualified
voter of the State of Virginia, duly registered as such
in Hieksford Election Precinct, in the County of Greens
ville. On that day and at the voting place for that precinct
I was regularly furnished an official ballot on which had
been printed names of candidates for the respective offices
to be filled by the election then being held, including the
names “Watkins M. Abbitt” and “Edward J. Silverman”,
in that order, as candidates for election to the House of
Representatives from the Fourth Congressional District of
Virginia.
Immediately below the name of Edward J. Silverman
I inserted the name “S. W. Tucker” by pasting on the
official ballot a strip of paper on which that name had
been printed; and I made a cross mark JxJ on the ballot
immediately preceding the name “S. W. Tucker” as so
inserted. I was then unable to legibly write the name
“S. W. Tucker” on the ballot.
Having thus voted for S. W. Tucker to be the member
of the House of Representatives from the Fourth Con
gressional District of Virginia, I folded the ballot with
the names of the candidates on the inside and handed
same to one of the judges of election who then put it
into the ballot box.
I am informed that my said vote and numerous other
votes cast in the same manner were not counted by the
judges and clerks of election serving at said precinct
and at many other precincts within the several counties
and cities which constitute the Fourth Congressional Dis
trict of Virginia.
Affidavit of McKinley Dunn
I authorize suit in my name to require my vote and
other votes similarly cast to be counted and included in
the official returns of the whole number of votes given
in said election for member of the House of Representa
tives from the Fourth Congressional District of Virginia.
His
/ s / McK inley X Dunn
Marlt,
[Affidavit of Notary Public Omitted]
19a
Affidavit o f N ora T yler
On the 8th day of November, 1966 I was a qualified voter
of the State of Virginia, duly registered as such in Bel-
field Election Precinct, in the County of Greensville. On
that day and at the voting place for that precinct I was
regularly furnished an official ballot on which had been
printed names of candidates for the respective offices to
be filled by the election then being held, including the names
“Watkins M. Abbitt” and “Edward J. Silverman”, in that
order, as candidates for election to the House of Repre
sentatives from the Fourth Congressional District of Vir
ginia.
Immediately below the name of Edward J. Silverman
I inserted the name “S. W. Tucker” by pasting on the
official ballot a strip of paper on which that name had
been printed; and I made a cross mark jx] on the ballot
immediately preceding the name “S. W. Tucker” as so
inserted. I was then unable to legibly write the name
“S. W. Tucker” on the ballot.
Having thus voted for S. W. Tucker to be the member
of the House of Representatives from the Fourth Con
gressional District of Virginia, I folded the ballot with
the names of the candidates on the inside and handed
same to one of the judges of election who then put it
into the ballot box.
I am informed that my said vote and numerous other
votes cast in the same manner were not counted by the
judges and clerks of election serving at said precinct
and at many other precincts within the several counties
and cities which constitute the Fourth Congressional Dis
trict of Virginia.
20a
Affidavit of Nora Tyler
I authorize suit in my name to require my vote and
other votes similarly cast to be counted and included in
the official returns of the whole number of votes given
in said election for member of the House of Bepresenta-
tives from the Fourth Congressional District of Virginia.
Her
/&/ Nora X T yler
Mark
[Affidavit of Notary Public Omitted]
21a
Affidavit o f Jam es G ilbert T yler
On the 8th day of November, 1966 I was a qualified voter
of the State of Virginia, duly registered as such in B el-
field Election Precinct, in the County of Greensville. On
that day and at the voting place for that precinct I was
regularly furnished an official ballot on which had been
printed names of candidates for the respective offices to
be filled by the election then being held, including the
names “Watkins M. Abbitt” and “Edward J. Silverman”,
in that order, as candidates for election to the House of
Representatives from the Fourth Congressional District of
Virginia.
Immediately below the name of Edward J. Silverman
I inserted the name “S. W. Tucker” by pasting on the
official ballot a strip of paper on which that name had
been printed; and I made a cross mark fx] on the ballot
immediately preceding the name “S. W. Tucker” as so
inserted. I was then unable to legibly write the name
“S. W. Tucker” on the ballot.
Having thus voted for S. W. Tucker to be the member
of the House of Representatives from the Fourth Con
gressional District of Virginia, I folded the ballot with
the names of the candidates on the inside and handed
same to one of the judges of election who then put it
into the ballot box.
I am informed that my said vote and numerous other
votes cast in the same manner were not counted by the
judges and clerks of election serving at said precinct
and at many other precincts within the several counties
and cities which constitute the Fourth Congressional Dis
trict of Virginia.
Affidavit of James Gilbert Tyler
I authorize suit in my name to require my vote and
other votes similarly cast to be counted and included in
the official returns of the whole number of votes given
in said election for member of the House of Representa
tives from the Fourth Congressional District of Virginia.
His
/ s / J ambs Gilbert X T yler
Mark
[Affidavit of Notary Public Omitted]
23a
Affidavit o f F ann ie 3VL Brow n
On the 8th day of November, 1966 1 was a qualified
voter of the State of Virginia, duly registered as such
in Brown’s Church Election Precinct, in the County of
Cumberland. On that day and at the voting place for that
precinct I was regularly furnished an official ballot on
which had been printed names of candidates for the re
spective offices to be filled by the election then being held,
including the names “Watkins M. Abbitt” and “Edward J.
Silverman”, in that order, as candidates for election to the
House of Representatives from the Fourth Congressional
District of Virginia.
Immediately below the name of Edward J. Silverman
I inserted the name “S. W. Tucker” by pasting on the
official ballot a strip of paper on which that name had
been printed; and I made a cross mark jx] on the ballot
immediately preceding the name “S. W. Tucker” as so
inserted. I was then unable to legibly write the name
“S. W. Tucker” on the ballot.
Having thus voted for S. W. Tucker to be the member
of the House of Representatives from the Fourth Con
gressional District of Virginia, I folded the ballot with
the names of the candidates on the inside and handed
same to one of the judges of election who then put it.
into the ballot box.
I am informed that my said vote and numerous other
votes cast in the same manner were not counted by the
judges and clerks of election serving at said precinct
and at many other precincts within the several counties
and cities which constitute the Fourth Congressional Dis
trict of Virginia.
24a
Affidavit of Fannie M. Brown
I authorize suit in my name to require my vote and
other votes similarly cast to be counted and included in
the official returns of the whole number of votes given
in said election for member of the House of Representa
tives from the Fourth Congressional District of Virginia.
Her
/ s / X F annie M. B rown
Marh
[Affidavit of Notary Public Omitted]
25a
Affidavit o f P a trick H. Brow n
On the 8th day of November, 1966 I was a qualified
voter of the State of Virginia, duly registered as such
in Brown’s Church Election Precinct, in the County of
Cumberland. On that day and at the voting place for that
precinct I was regularly furnished an official ballot on
which had been printed names of candidates for the re
spective offices to be filled by the election then being held,
including the names “Watkins M. Abbitt” and “Edward J.
Silverman”, in that order, as candidates for election to the
House of Representatives from the Fourth Congressional
District of Virginia.
Immediately below the name of Edward J. Silverman
I inserted the name “S. W. Tucker” by pasting on the
official ballot a strip of paper on which that name had
been printed; and I made a cross mark [x] on the ballot
immediately preceding the name “S. W. Tucker” as so
inserted. I was then unable to legibly write the name
“S. W. Tucker” on the ballot.
Having thus voted for S. W. Tucker to be the member
of the House of Representatives from the Fourth Con
gressional District of Virginia, I folded the ballot with
the names of the candidates on the inside and handed
same to one of the judges of election who then put it
into the ballot box.
I am informed that my said vote and numerous other
votes cast in the same manner were not counted by the
judges and clerks of election serving at said precinct
and at many other precincts within the several counties
and cities which constitute the Fourth Congressional Dis
trict of Virginia.
26a
Affidavit of Patrick II. Brown
I authorize suit in my name to require my vote and
other votes similarly cast to be counted and included in
the official returns of the whole number of votes given
in said election for member of the House of Representa
tives from the Fourth Congressional District of Virginia,
His
/ s / X P atrick H. B rown
Mark
[Affidavit of Notary Public Omitted]
27a
Affidavit o f Jam es Bondkens
On the 8th day of November, 1966 I was a qualified
voter of the State of Virginia, duly registered as such
in Smith’s Crossroads Election Precinct, in the County of
Powhatan. On that day and at the voting place for that
precinct I was regularly furnished an official ballot on
which had been printed names of candidates for the re
spective offices to be filled by the election then being held,
including the names “Watkins M. Abbitt” and “Edward J.
Silverman”, in that order, as candidates for election to the
House of Representatives from the Fourth Congressional
District of Virginia.
Immediately below the name of Edward J. Silverman
I inserted the name “S. W. Tucker” by pasting on the
official ballot a strip of paper on which that name had
been printed; and I made a cross mark Jxj on the ballot
immediately preceding the name “S. W. Tucker” as so
inserted. I was then unable to legibly write the name
“S. W. Tucker” on the ballot.
Having thus voted for S. W. Tucker to be the member
of the House of Representatives from the Fourth Con
gressional District of Virginia, I folded the ballot with
the names of the candidates on the inside and handed
same to one of the judges of election who then put it
into the ballot box.
I am informed that my said vote and numerous other
votes east in the same manner were not counted by the
judges and clerks of election serving at said precinct
and at many other precincts within the several counties
and cities which constitute the Fourth Congressional Dis
trict of Virginia.
28a
Affidavit of James Donikens
I authorize suit in my name to require my vote and
other votes similarly east to be counted and included in
the official returns of the whole number of votes given
in said election for member of the House of Representa
tives from the Fourth Congressional District of Virginia.
/ s / X (his mark) J ames Donikests
[Affidavit of Notary Public Omitted]
29a
N otification and R equest
F o r D esignation o f T hree-Judge C ourt
To the Honorable Clement F. Haynsworth, Jr., Chief Judge
of the United States Court of Appeals for the Fourth
Circuit:
The plaintiffs seek a declaration that the Equal Protec
tion Clause of the Fourteenth Amendment to the Consti
tution of the United States and the Voting Rights Act of
1965 invalidate portions of § 24-252, Code of Virginia 1950.
The plaintiffs also seek injunctive relief.
It appearing that this action is one which, under the pro
visions of 28 U.S.C. § 2281 must be heard and determined
by a district court of three judges, and a motion having
been filed for the designation of such a court, you are
hereby notified, as required by 28 U.S.C. § 2284, that the
application in this action has been presented to me. You
are respectfully requested to designate two other judges,
at least one of whom shall be a circuit judge, to serve with
me as members of the court to hear and determine the
action.
/ s / J ohn D. B tjtzner, J r.
United States District Judge
November 28, 1966
30a
Designation of Three-Judge Court
It appearing to the undersigned Chief Judge of the
Fourth Judicial Circuit of the United States that a civil
action as above entitled has been instituted in the United
States District Court for the Eastern District of Virginia,
for the stated purpose of enjoining the enforcement of
and declaring unconstitutional portions of § 24-252, Code
of Virginia 1950, as being in claimed conflict with the
Equal Protection Clause of the Fourteenth Amendment to
the Constitution of the United States and the Voting Rights
Act of 1965; and that application for such relief was made
to Honorable John D. Butzner, Jr., United States District
Judge for the Eastern District of Virginia, who has noti
fied the undersigned pursuant to § 2284 of Title 28, United
States Code Annotated, of the pendency of such applica
tion, to the end that a court of three judges may be con
stituted, as required by § 2281, Title 28, United States Code.
Now, therefore, I do hereby designate Honorable Albert
V. Bryan, United States Circuit Judge, Fourth Judicial
Circuit and Honorable Harrison L. Winter, United States
Circuit Judge, Fourth Judicial Circuit, to serve with the
said Honorable John D. Butzner, Jr. in the hearing and
determination of the above entitled action, as provided by
law, the three to constitute a District Court of three judges
as provided by § 2284, Title 28, United States Code.
This the 30th day of November, 1966.
/ s / (Illegible)
Chief Judge, Fourth Circuit
Let the Clerk send copies of this order to counsel of
record, each defendant for whom no counsel has yet noted
an appearance and the Attorney General of Virginia.
/ s / J o h n D. B utzner, J r .
United States District Judge
December 19, 1966
31a
Pre-Trial Order
It is Adjudged and Ordered:
1. The defendants are directed to file their answers, if
they have not already done so, together with such addi
tional pleadings as they may deem proper, on or before
January 6, 1967. The filing of answers shall not consti
tute a waiver of defenses and objections raised by motions.
2. The plaintiffs may file replies, if they deem it advis
able, on or before January 13, 1967.
3. No additional motions or pleadings may be filed there
after except by leave of court for good cause shown.
4. All pre-trial discovery should be completed on or
before March 1, 1967.
5. All proposed exhibits and the names and addresses
of all persons who may be called to testify must be filed
with the Clerk of this court in Richmond twenty days prior
to the date of the hearing on the merits. If the exhibits
are voluminous, they should be marked by the Clerk at
least two days prior to the date of trial. Formal proof
of exhibits will be deemed waived unless objected to in
writing at least seven days prior to the date of trial.
Copies of all exhibits, lists of witnesses and briefs should
be mailed to all counsel of record and the members of the
three-judge court at their respective addresses.
6. Hearing on all motions, unless otherwise ordered by
the court, will be deferred until the date of the hearing
on the merits.
32a
Pre-Trial Order
7. Plaintiffs’ briefs should be filed on or before March
15, 1967. Defendants’ briefs should be filed on or before
April 1, 1967.
8. This case is set for hearing upon the merits and
upon all motions in the United States District Court,
Post Office Building, Richmond, Virginia, on Tuesday,
April 11, 1967, at 11:30 A.M.
Let the Clerk send copies of this order to counsel of
record, each defendant for whom no counsel has yet noted
an appearance and the Attorney General of Virginia.
/ s / J ohn D. B utzneb, J b.
United States District Judge
December 19, 1966
33a
Answ er o f State B oard o f E lections
Now comes the State Board of Elections of the Common
wealth of Virginia, by counsel, and answers the complaint
herein and says:
1. For answer to Paragraphs 1(a) and 1(b) of the com
plaint, this defendant admits that the plaintiffs seek to
invoke the jurisdiction of this Court under the provisions
of law set forth in said paragraphs. This defendant denies
that this action arises under or is authorized by any of
the provisions of law specified in said paragraphs or that
the matter in controversy, exclusive of interest and costs,
exceeds the sum of $10,000 or that this Court has jurisdic
tion of the action under any of the provisions of law set
forth in Paragraphs 1(a) or 1(b) of the complaint.
2. For answer to Paragraphs 2(a), 2(b), 2(c) and 2(d)
of the complaint, this defendant admits that the plaintiffs
seek the temporary restraining order, injunction and de
claratory judgments specified in such paragraphs. This
defendant denies that plaintiffs are entitled to said tempo
rary restraining order, injunction or declaratox-y judgments
for any reason set forth in the complaint.
3. This defendant neither admits nor denies the allega
tions of Paragraphs 3, 4, 5 and 6 of the complaint and calls
for strict proof of the same.
4. The allegations of Paragraph 7 of the complaint are
admitted.
5. This defendant neither admits nor denies the allega
tions of Paragraph 8 of the complaint and calls for strict
proof of the same.
6. For answer to the initial sentence of Paragraph 9 of
the complaint, this defendant states that—after the polls
had been closed on November 8, 1966—it was the duty of
the judges of election at each of the several precincts or
34a
Answer of State Board of Elections
wards to count and ascertain the number of votes prop
erly cast for each person voted for and to sign and attest
returns showing the name of each person properly voted
for, the office for which such person received such votes
and the number of legal votes he received at such precinct
or ward. Such returns as made by the judges of election
at the several precincts or wards in the counties and cities
which comprise the Fourth Congressional District of Vir
ginia are the bases upon which the commissioners of the
counties and cities consolidate the vote and compile an
abstract of the votes properly cast in the counties and
cities, from which abstract the State Board of Elections
will make a statement of the whole number of votes given
at the general election held November 8, 1966, in the Fourth
Congressional District of Virginia for a member of the
House of Representatives in Congress.
7. The allegations of Paragraph 10 of the complaint are
denied.
Now having fully answered, this defendant prays to be
hence dismissed with its costs in this behalf expended.
State B oard op E lections op the
Commonwealth op V irginia
By: / s / R obert Y. B utton
Of Counsel
Robert Y. Button
Attorney General of Virginia
Kenneth C. Patty
Assistant Attorney General
R. D. Mcllwaine, III
Assistant Attorney General
Supreme Court-State Library Building
Richmond, Virginia 23219
35a
Answer of Robert E, Garnett and J. F. Lipscomb
Now comes Robert E, Garnett and J. F. Lipscomb, both
of Cumberland County, Virginia, by counsel, and jointly
and severally answer the complaint herein and say:
1. That J. F, Lipscomb is the correct name of the defen
dant designated as “J. S. Lipscomb” in the complaint.
2. For answer to paragraphs 1(a) and 1(b) of the com
plaint, these defendants admit that the plaintiffs seek to
invoke the jurisdiction of this Court under the provisions
of law set forth in said paragraphs. These defendants
deny that this action arises under or is authorized by any
of the provisions of law specified in said paragraphs or
that the matter in controversy, exclusive of interest and
costs, exceeds the sum of $10,000.00 or that this Court has
jurisdiction of the action under any of the provisions of
law set forth in Paragraphs 1(a) or 1(b) of the complaint.
3. For answer to Paragraphs 2(a), 2(b), 2(c) and 2(d)
of the complaint, these defendants admit that the plain
tiffs seek the temporary restraining order, injunction and
declaratory judgments specified in such paragraphs. These
defendants deny that plaintiffs are entitled to said tempo
rary restraining order, injunction or declaratory judg
ments for any reason set forth in the complaint.
4. These defendants neither admit nor deny the allega
tions of Paragraphs 3, 4, 5 and 6 of the complaint and
call for strict proof of the same.
5. The allegations of Paragraph 7 of the complaint are
admitted.
36a
Answer of Robert, E. Garnett and J. F. Lipscomb
6. These defendants neither admit nor deny the allega
tions of Paragraph 8 of the complaint and call for strict
proof of the same, but do allege that J. F. Lipscomb was
a duly appointed clerk of election at the Brown’s precinct
in the County of Cumberland, Commonwealth of Virginia,
on November 8, 1966, and that Robert E. Garnett was a
duly appointed judge of election at the Brown’s precinct
in Cumberland County, Commonwealth of Virginia, on No
vember 8, 1966.
7. For answer to the initial sentence of Paragraph 9 of
the complaint, these defendants state that—after the polls
had been closed on November 8, 1966—it was their duty
as judge and clerk of election at their precinct, to count
and ascertain the number of votes properly cast for each
person voted for and to sign and attest returns showing
the name of each person properly voted for, the office for
which such person received such votes and the number of
legal votes he received at such precinct. Such returns as
made by the judges of election at their precinct in the
County of Cumberland, which is a part of the Fourth
Congressional District of Virginia, are the bases upon
which the commissioners of the counties and cities consoli
date the vote and compile an abstract of the votes prop
erly cast in the counties and cities, from which abstract
the State Board of Elections will make a statement of the
whole number of votes given at the general election held
November 8, 1966, in the Fourth Congressional District
of Virginia for a member of the House of Representatives
in Congress.
8. These defendants neither admit nor deny the allega
tions in Paragraph 10 of the complaint and call for strict
proof of the same.
37a
Answer of Robert E. Garnett and J. F. Lipscomb
Now having fully answered, these defendants pray to be
hence dismissed with their costs in this behalf expended.
R obert E. Garnett
Cumberland, Virginia
J . F . L ipscomb
Cumberland, Virginia
By / s / W illiam C. Carter
Of Counsel
William C. Carter
Commonwealth’s Attorney
Cumberland County, Virginia
38a
Answer o f T hom as Brow n
Now comes Thomas Brown, by counsel, and answers the
complaint herein and says:
1. For answer to Paragraph 1(a) of the complaint, this
defendant denies each and every allegation.
2. For answer to Paragraph 1(b) of the complaint, this
defendant denies that this Court has jurisdiction as alleged
therein and further says the plaintiffs have no valid cause
of action as set forth in this Paragraph.
3. For answer to Paragraph 2(a) of the complaint, this
defendant denies that the plaintiffs are entitled to a tempo
rary restraining order and an interlocutory injunction as
sought by the plaintiffs.
4. For answer to Paragraph 2(b) of the complaint, this
defendant denies that plaintiffs are entitled to a declara
tory judgment as sought by the plaintiffs.
5. For answer to Paragraph 2(c) of the complaint, this
defendant denies that the plaintiffs are entitled to a de
claratory judgment as sought by the plaintiffs.
6. For answer to Paragraph 2(d) of the complaint, this
defendant denies that the plaintiffs are entitled to the in
junctions sought by the plaintiffs.
7. This defendant denies the allegations of Paragraphs
3, 4 and 5 of the complaint.
8. This defendant denies the allegations of Paragraph 6
of the complaint, and especially denies that the plaintiff
James Donikens is illiterate, or not sufficiently literate to
Answer of Thomas Brown
write legibly, nor had he any physical infirmities which
impaired his penmanship.
9. This defendant neither admits nor denies the allega
tions of Paragraphs 7 and 8 of the complaint.
10. This defendant neither admits nor denies the alle
gations of paragraph 9 of the complaint.
11. This defendant denies the allegations of Paragraph
10 of the complaint.
Now having fully answered, this defendant prays to be
hence dismissed with his costs in his behalf expended.
Thomas Brown
By: .........................
Of Counsel
William R. Blandford
Attorney at Law
Powhatan, Virginia
40a
Answer of Paul Bell
Now comes Paul Bell, by counsel, and answers the com
plaint herein and says:
1. For answer to Paragraph 1 (a) of the complaint, this
defendant denies each and every allegation.
2. For answer to Paragraph 1(b) of the complaint, this
defendant denies that this Court has jurisdiction as alleged
therein and further says the plaintiffs have no valid cause
of action as set forth in this Paragraph.
3. For answer to Paragraph 2(a) of the complaint, this
defendant denies that the plaintiffs are entitled to a tempo
rary restraining order and an interlocutory injunction as
sought by the plaintiffs.
4. For answer to Paragraph 2(b) of the complaint, this
defendant denies that plaintiffs are entitled to a declara
tory judgment as sought by the plaintiffs.
5. For answer o Paragraph 2(c) of the complaint, this
defendant denies that the plaintiffs are entitled to a de
claratory judgment as sought by the plaintiffs.
6. For answer to Paragraph 2(d) of the complaint, this
defendant denies that the plaintiffs are entitled to the in
junctions sought by the plaintiffs.
7. This defendant denies the allegations of Paragraphs
3, 4 and 5 of the complaint.
8. This defendant denies the allegations of Paragraph 6
of the complaint, and especially denies that the plaintiff
James Donikens is illiterate, or not sufficiently literate to
41a
Answer of Paul Bell
write legibly, nor had he any physical infirmities which
impaired his penmanship.
9. This defendant neither admits nor denies the allega
tions of Paragraphs 7 and 8 of the complaint.
10. This defendant neither admits nor denies the alle
gations of Paragraph 9 of the complaint.
11. This defendant denies the allegations of Paragraph
10 of the complaint.
Now having fully answered, this defendant prays to be
hence dismissed with his costs in this behalf expended.
N ..................................................... -
Paul Bell
By: / s / W m E B landford
Of Counsel
William B. Blandford
Attorney at Law
Powhatan, Virginia
42a
Answer of Mark Grizzard, Benjamin Griffin
and Forest Lankford
The defendants, Mark Grizzard, Benjamin Griffin and
Forest Lankford, come now and answers the complaint
herein as follows:
1. For answer to Paragraphs 1(a) and 1(b) of the com
plaint, the defendants deny that this action arises under
or is authorized by any of the provisions of law specified
in said Paragraphs or that the matter in controversy,
exclusive of interest and costs, exceeds the sum of
$10,000.00 or that this Court has jurisdiction of the action
under any of the provisions of law set forth in Paragraphs
1(a) or 1(b) of the complaint.
2. For answer to Paragraphs 2(a), 2(b), 2(c) and 2(d)
of the complaint, the defendants deny that plaintiffs are
entitled to said temporary restraining order, injunction
or declaratory judgments for any reason set forth in the
complaint.
3. The defendants neither admit nor deny the allegations
of Paragraphs 3, 4, 5, 6 and 7 of the complaint and calls
for strict proof of the same.
4. For answer to Paragraph 8 of the complaint, the
defendants admit that on 8 November 1966 they were act
ing as judges of the election duly appointed by the Electoral
Board of Greensville County in their respective precincts
but will require strict proof of the remaining allegation
of that Paragraph.
5. The defendants deny the allegations contained in
Paragraph 9 of the complaint.
43a
Answer of Mark Grismrd, Benjamin Griffin
and Forest Lankford
6. The defendants deny the allegations of Paragraph 10
of the complaint.
7. The defendants reserve the right to amend their an
swer, at any time as they may be advised and further
state that they will rely upon any and all available de
fenses.
Mark Grizzard
Benjamin Griffin
Forest Lankford
B y / s / H. B e n j V ik c en t
Counsel
/ s / H. Bbnj V in c e n t
H. Benjamin Vincent
Vincent, Warriner & Outten
332 South Main Street
Emporia, Virginia
Attorney for Commonwealth
Greensville County, Virginia
44a
R equest fo r A dm issions
Under provisions of Rule 36(a) of the Federal Rules of
Civil Procedure, plaintiffs request that, on or before March
1, 1967, the defendants make admission of the matters of
fact hereinafter set forth:
O we
That on November 8, 1966, Mark Grizzard was a duly
appointed judge of election for Moss Precinct in the County
of Greensville and served as such.
Two
That on November 8, 1966, Forest Lankford was a duly
appointed clerk for Hicksford Precinct in the County of
Greensville and served as such.
T hree
That on November 8, 1966, Benjamin Griffen was a duly
appointed judge of election for Belfield Precinct in the
County of Greensville and served as such.
F our
That on November 8, 1966, Robert E. Garnett was a
duly appointed judge of election for Brown’s Church Pre
cinct in the County of Cumberland and served as such.
F ive
That on November 8,1966, J. F. Lipscomb was a duly ap
pointed clerk for Brown’s Church Precinct in the County
of Cumberland and served as such.
45a
Request for Admissions
Six
That on November 8, 1966, Thomas Brown was a duly
appointed judge of election for Smith Cross Roads Precinct
in the County of Powhatan and served as such.
Seven
That on November 8, 1966, Paul Bell was a duly ap
pointed judge of election for Smith Cross Roads Precinct
in the County of Powhatan and served as such.
E ight
That voting machines were used in the November 8, 1966
general elections in the Fourth Congressional District of
Virginia, only in the City of Colonial Heights, in the City
of Hopewell, in the City of Suffolk and in some of the elec
tion precincts of the City of Chesapeake.
Nine
That white paper ticket ballots, as described in Section
24-215 of the Code of Virginia, were used for the Novem
ber 8,1966 general election in some of the election precincts
in the Fourth Congressional District of Virginia.
Ten
That white paper ticket ballots, as described in Section
24-215 of the Code of Virginia, were used for the November
8, 1966 general election in the City of Petersburg, in the
City of Franklin, and in all of the counties which are a
part of the Fourth Congressional District of Virginia.
46a
Request for Admissions
E leven
That, except in those precincts in which voting machines
were in nse, the official ballots as printed for the General
Election held November 8, 1966 contained the names of
Watkins M. Abbitt and Edward J. Silverman, in that order,
as candidates for the Honse of Representatives from the
Fourth Congressional District of Virginia; and that no
person’s name appeared below the name of Edward J. Sil
verman on the official ballots as printed.
T welve
That on November 8, 1966, in at least one precinct in the
Fourth Congressional District of Virginia and after the
polls had been closed and the ballots had been taken from
the ballot box, at least one of the official ballots was found
to have been marked with a check, cross mark or line im
mediately preceding a strip of paper which had been pasted
on the ballot immediately under the name Edward J. Silver-
man, on which strip the name “S. W. Tucker” had been
printed.
T hibteen
That when the ballots were removed from the ballot box
at Moss Precinct in Greensville County following the clos
ing of the polls on November 8, 1966 some of the ballots
were found to have been altered and marked in the manner
set forth in item T welve on the preceding page.
F ourteen
That on November 8, 1966, there were persons qualified
and registered to vote at Moss Precinct in Greensville
County who, being illiterate or unlettered, were unable to
write legibly.
47a
Request for Admissions
F ifteen
That the ballots which had been altered and marked as
described in item T welve on the preceding page and placed
in the ballot box for Moss Precinct in Greensville County
were not counted and included in the official returns as
votes validly cast for S. W. Tucker.
Sixteen
That when the ballots were removed from the ballot box
at Hicksford Precinct in Greensville County following the
closing of the polls on November 8, 1966 some of the ballots
were found to have been altered and marked in the manner
set forth in item T welve on the preceding page.
Seventeen
That on November 8, 1966 there were persons qualified
and registered to vote at Hicksford Precinct in Greensville
County who, being illiterate or unlettered, were unable to
write legibly.
E ighteen
That the ballots which had been altered and marked as
described in item T welve on page three and placed in the
ballot box at Hicksford Precinct in Greensville County were
not counted and included in the official returns as votes
validly cast for S. W. Tucker.
Nineteen
That when the ballots were removed from the ballot box
at Belfield Precinct in Greensville County, following the
closing of the polls on November 8,1966 some of the ballots
were found to have been altered and marked in the manner
set forth in item T welve on page three.
48a
Request for Admissions
T wenty
That on November 8, 1966 there were persons qualified
and registered to vote at Belfield Precinct in Greensville
County who, being illiterate or unlettered, were unable to
write legibly.
T wenty-One
That the ballots which had been altered and marked as
described in item T welve on page three and placed in the
ballot box at Belfield Precinct in Greensville County were
not counted and included in the official returns as votes
validly cast for S. W. Tucker.
T wenty-Two
That when the ballots were removed from the ballot box
at Brown’s Church Precinct in Cumberland County, follow
ing the closing of the polls on November 8, 1966 some of the
ballots were found to have been altered and marked in the
manner set forth in item T welve on page three.
T wenty-Three
That on November 8, 1966 there were persons qualified
and registered to vote at Brown’s Church Precinct in Cum
berland County who, being illiterate or unlettered, were
unable to write legibly.
T wenty-F our
That the ballots which had been altered and marked as
described in item T welve on page three and placed in the
ballot box at Brown’s Church Precinct in Cumberland
County were not counted and included in the official returns
as votes validly cast for S. W. Tucker.
49a
Request for Admissions
T wenty-F ive
That when the ballots were removed from the ballot box
at Smith’s Cross Roads Precinct in Powhatan County fol
lowing the closing of the polls on November 8, 1966 some
of the ballots were found to have been altered and marked
in the manner set forth in item T welve on page three.
T wenty-Six
That on November 8, 1966 there were persons qualified
and registered to vote at Smith’s Cross Roads Precinct in
Powhatan County who, being illiterate or unlettered, were
unable to write legibly.
T wenty-Seven
That the ballots which had been altered and marked as
described in item T welve on page three and placed in the
ballot box at Smith’s Cross Roads Precinct in Powhatan
County were not included and counted in the official returns
as votes validly east for S. W. Tucker.
T wenty-E ight
That in at least one precinct in Southampton County
when the ballots wrere removed from the ballot box follow
ing the closing of the polls on November 8, 1966 some of the
ballots were found to have been altered and marked in the
manner set forth in item T welve on page three.
T wenty-Nine
That on November 8, 1966 there were persons qualified
and registered to vote at such precinct or precincts in
Southampton County who, being illiterate or unlettered,
were unable to write.
50a
Request for Admissions
T hirty
That the ballots which had been altered and marked as
described in item T welve on page three and placed in the
ballot box at such precinct or precincts in Southampton
County were not counted and included in the official returns
as votes validly cast for S. W. Tucker.
T hirty-One
That in at least- one precinct in Nansemond County,
when the ballots were removed from the ballot box following
the closing of the polls on November 8, 1966 some of the
ballots were found to have been altered and marked in the
manner set forth in item T welve on page three.
T hirty-Two
That on November 8, 1966 there were persons qualified
and registered to vote at such precinct or precincts in
Nansemond County who, being illiterate or unlettered, were
unable to write.
T hirty-Three
That the ballots which had been altered and marked as
described in item T welve on page three and placed in the
ballot box at such precinct or precincts in Nansemond
County were not counted and included in the official returns
as votes validly cast for S. W. Tucker.
T hirty-F our
That in at least one precinct in the City of Chesapeake,
when the ballots were removed from the ballot box follow
ing the closing of the polls on November 8, 1966 some of
51a
Request for Admissions
the ballots were found to have been altered and marked in
the m anner set fo rth in item T welve on page three.
T hirty-F ive
That on November 8, 1966 there were persons qualified
and registered to vote at such precinct or precincts in the
City of Chesapeake who, being illiterate or unlettered, were
unable to write.
T hirty-Six
That the ballots which had been altered and marked as
described in item T welve on page three and placed in the
ballot box at such precinct or precincts in the City of Chesa
peake were not counted and included in the official returns
as votes validly cast for S. W. Tucker.
T hirty-Seven
That in at least one precinct in Prince Edward County
when the ballots were removed from the ballot box follow
ing the closing of the polls on November 8, 1966 some of
the ballots were found to have been altered and marked in
the manner set forth in item T welve on page three.
T hirty-E ight
That on November 8, 1966 there were persons qualified
and registered to vote at such precinct or precincts in Prince
Edward County who, being illiterate or unlettered, were
unable to write.
T hirty-Nine
That the ballots which had been altered and marked as
described in item T welve on page three and placed in the
52a
Bequest for Admissions
ballot box at such precinct or precincts in Prince Edward
County were not counted and included in the official returns
as votes validly cast for S. W. Tucker.
F orty
That in at least one precinct in Nottoway County when
the ballots were removed from the ballot box following the
closing of the polls on November 8, 1966 some of the ballots
were found to have been altered and marked in the manner
set forth in item T welve on page three.
F orty-One
That on November 8, 1966 there were persons qualified
and registered to vote at such precinct or precincts in
Nottoway County who, being illiterate or unlettered, were
unable to write.
F orty-Two
That the ballots which had been altered and marked as
described in item T welve on page three and placed in the
ballot box at such precinct or precincts in Nottoway County
were not counted and included in the official returns as
votes validly cast for S. W. Tucker.
/ s / S. W. T ucker
Of Counsel for Plaintiffs
H ill, T ucker & Marsh
214 East Clay Street
Richmond, Virginia 23219
J ack Greenberg
J ames M. Nabrit, III
10 Columbus Circle
New York, New York
Counsel for Plaintiffs
53a
R esponse to P lain tiffs’ R equest fo r A dm issions
F iled by S tate B oard o f E lections
Now comes the State Board of Elections of the Common
wealth of Virginia, by counsel, and responds to plaintiffs’
request for admissions heretofore filed in this cause and
says:
1. This defendant has no knowledge of the matters set
forth in Paragraphs One through Seven or Paragraphs
Twelve through Forty-Two of said request and neither
admit nor deny the same.
2. This defendant admits the accuracy of the matters
set forth in Paragraphs Nine and Eleven of said request
for admissions.
3. For response to Paragraph Eight of said request for
admissions, this defendant is advised that voting machines
were used in the November 8, 1966, general election in the
Fourth Congressional District of Virginia in the City of
Colonial Heights, the City of Hopewell and some of the
precincts in the City of Chesapeake and Nansemond
County, but such voting machines were not used in the
City of Suffolk.
4. For response to Paragraph Ten of said request for
admissions, this defendant is advised that white paper
ticket ballots as described in Section 24-215 of the Virginia
Code were used in the November 8, 1966, general election
in the Fourth Congressional District in the City of Peters
burg, the City of Franklin, the City of Suffolk and in
54a
Response to Plaintiffs’ Request for Admissions
Filed by State Board of Elections
parts of all of the counties which are located in the Fourth
Congressional District of Virginia.
State B oard of E lections of the
Commonwealth of V irginia
By: / s / R . D. M cI lw a in e , I I I
Of Counsel
Robert Y. Button
Attorney General of Virginia
Kenneth C. Patty
Assistant Attorney General
R. D. McIlwaine, III
Assistant Attorney General
Supreme Court—State Library Building
Richmond, Virginia 23219
55a
R esponse to P la in tiffs’ R equest fo r A dm issions
F iled by R obert E. G arnett and J . F. L ipscom b
Now come Robert E. Garnett and J. E. Lipscomb, by
counsel, and jointly and severally respond to plaintiffs’
request for admissions heretofore filed in this cause, and
say:
1. These defendants have no knowledge of the matters
set forth in Paragraphs One through Three, Paragraphs
Six through Twenty-One, Paragraph Twenty-Three, or
Paragraphs Twenty-Five through Forty-Two of said re
quest and neither admit nor deny the same.
2. The defendant, Robert E. Garnett, admits the accu
racy of Paragraph Four of said request.
3. The defendant J. F. Lipscomb admits the accuracy
of Paragraph Five of said request.
4. The defendants Robert E. Garnett and J. F. Lips
comb both admit the accuracy of Paragraphs Twenty-Two
and Twenty-Four of said request.
R obert E. Garnett
Cumberland, Virginia
J. F. L ipscomb
Cumberland, Virginia
By / s / W m C Carter
Of Counsel
William C. Carter
Commonwealth’s Attorney
Cumberland, Virginia
56a
R esponse to P lain tiffs’ Request, fo r A dm issions
Filed by Thomas Brown and Paul Bell
Now come Thomas Brown and Paul Bell, by counsel, and
respond to plaintiffs’ request for admissions heretofore
filed in this cause and say:
1. These defendants have no knowledge of the matters
set forth in Paragraphs One through Five of said request
and neither admit nor deny the same.
2. These defendants admit the accuracy of the matters
set forth in Paragraphs Sis and Seven of said request.
3. As to Paragraph Nine and Ten, these defendants
state that white paper ticket ballots as described in Sec
tion 24-215 of the Code of Virginia were used at Smith’s
Cross Roads precinct in Powhatan County on November 8,
1966, but they have no knowledge as to the type of ballots
used at any other precinct in the Fourth Congressional
District.
4. These defendants have no knowledge of the matters
set forth in Paragraphs Eight and Eleven of the request
and further they have no knowledge of the matters set
forth in paragraphs Thirteen through Twenty-Four and
Paragraphs Twenty-Eight through Forty-Two and neither
admit nor deny the same.
5. For Paragraphs Twelve and Twenty-Five these de
fendants state that some of the ballots had been altered
and marked in the manner set forth in Paragraph Twelve
on Page Three of the request.
6. For Paragraph Twenty-Six the defendants state that
they have no knowledge of the matters set forth therein
Response to Plaintiffs’ Request for Admissions
Piled by Thomas Brown and Paul Bell
as to parties being illiterate or unlettered and therefore
unable to write legibly but the defendant Paul Bell states
that he helped at least two parties at the polls because of
physical infirmities.
7. These defendants state for Paragraph Twenty-Seven
that ballots marked as described in Item Twelve were not
counted as ballots validly cast for S. W. Tucker.
T homas Brown
P aul Bell
By: /s / W illiam R. Blandford
By: T.L.L. III Of Counsel
Honorable Albert V. Bryan
IJ. S. Circuit Judge, Alexandria, Virginia
Honorable Harrison L. Winter
U. S. Circuit Judge, Baltimore, Maryland
Honorable John D. Butzner
H. S. District Judge, Richmond, Virginia
Honorable R. D. Mcllwaine, III
Assistant Attorney General
Honorable William C. Carter
Commonwealth Attorney for Cumberland County
Cumberland, Virginia
Honorable H. Benjamin Vincent
Commonwealth Attorney for Greensville County
Emporia, Virginia
58a
R esponse to Plaintiffs’ R equest for A dm issions
Filed by Mark Grizzard, Forest Lankford
and Benjamin Griffin
Now comes Mark Grizzard, Forest Lankford and Benja
min Griffin, by counsel, and respond to plaintiffs’ request
for admissions hereto filed in this cause as follows:
1. These defendants admit the accuracy of the matters
set forth in Paragraphs One, Two and Three of said re
quest.
2. These defendants have no knowledge of the matters
set forth in the following Paragraphs of said request:
Paragraphs Four through Twelve, Fourteen, Seventeen,
Twenty, Twenty-Two through Forty-Two and neither ad
mit or deny the same.
3. These defendants admit the accuracy of the matters
set forth in Paragraphs Thirteen, Fifteen, Sixteen, Eight
een, Nineteen and Twenty-One of the said request.
Mark Grizzard
Forest Lankford
Benjamin Griffin
By / s / H Bbnj Vincent
Counsel
Honorable Albert V. Bryan
IT. S. Circuit Judge
Alexandria, Virginia
Honorable Harrison L. Winter
TJ. S. Circuit Judge
Baltimore, Maryland
59a
Response to Plaintiffs’ Request for Admissions
Filed by Mark Grizsard, Forest Lankford
and Benjamin Griffin
Honorable John D. Butzner
U. S. District Judge
Richmond, Virginia
Honorable R. D. Mcllwaine, III
Assistant Attorney General
Richmond, Virginia
Honorable William C. Carter
Commonwealth Attorney for Cumberland County
Cumberland, Virginia
Honorable William R. Blandford
Attorney at Law
Powhatan, Virginia
60a
Defendants’ Exhibit # 1
(Letter to All Registrars)
COMMONWEALTH OF VIRGINIA
[emblem]
State B oard of E lections
STATE CAPITOL
R ichmond 23219
August 12, 1965
To All Registrars:
On August 6, 1965, the “Voting Rights Act of 1965”
enacted by the Congress of the United States became effec
tive and is now in force in Virginia. Under the wording
of this Act, use of the Virginia registration forms in the
manner required by Virginia law prior to August 6th is
now prohibited. So far as I am now advised, the infor
mation required on the registration forms heretofore sent
you on April 19, 1965 can still be obtained at the time of
registration.
These forms may be obtained by an applicant from the
Registrar at the usual time and place for registration.
The forms may be completed only at the place where
obtained and shall be submitted by the applicant in per
son at that place.
The Registrar shall review the forms in the presence of
the applicant to insure that all questions are answered
clearly and completely. If all questions are not answered
clearly and completely, or if the applicant is not able per
sonally to complete the forms in whole or in part because
61a
Defendants’ Exhibit #1
of lack of literacy or otherwise, or has difficulty in doing
so, the Registrar shall orally examine the applicant and
record the pertinent information on the forms or otherwise
assist the applicant in completing the forms. After the
forms are completed, the Registrar shall require the appli
cant to take an oath or affirmation as to the truth of the
answers and to sign his name or make his mark thereon.
If more information is obtained that makes desirable
a change in the present registration forms, such informa
tion will be furnished you.
Sincerely yours,
State Boabd o f E lections
/ % / Levin Nock Davis
Levin Nock Davis, Secretary
62a
Defendants’ E xhib it $ 2
(M em o to G eneral R egistrars)
COMMONWEALTH OF VIRGINIA
[e m b l e m ]
State B oard op E lections
STATE CAPITOL
R ichmond 23219
October 15, 1965
Memo to the General R egistrars
Today this office is mailing a supply of bulletins to the
secretaries of the electoral boards throughout the State
to be distributed to each judge of election. You will find
a copy of this bulletin enclosed as I know this is a ques
tion of vital concern to you also.
With best wishes, I am
Very truly yours,
State B oard op E lections
/ s / L evin Nock Davis
Levin Nock Davis, Secretary
Enclosure
63a
D efendan ts’ Exhibit # 3
(L etter to Secretaries o f Electoral Boards)
COMMONWEALTH OF VIRGINIA
[e m b l e m ]
State B oard of E lections
STATE CAPITOL
R ichmond 23219
October 15, 1965
To t h e S e c r e t a r ie s o f t h e E l e c t o r a l B oards :
I am sending you a supply of a bulletin “To All E lec
t io n J udges.” When the official ballots are delivered to
the judges of election as required by Section 24-230 of the
Code, you will please deliver along with the package of
ballots three (3) of these bulletins—one for each precinct
judge.
At the time you deliver the official ballots and the
bulletin, you will please direct the attention of the judge
to whom delivery is made to Sections 24-231 and 24-232
of the Code and insist upon strict compliance and call
special attention to the penalties for non-compliance as
set forth in Section 24-233 of the Code.
Very truly yours,
State B oard of E lections
/ s / Levin Nock Davis
Levin Nock Davis, Secretary
64a
Defendants’ Exhibit # 4
(B u lletin to All Judges o f E lections)
COMMONWEALTH OF VIRGINIA
[ e m b l e m ]
State B oard op E lections
STATE CAPITOL
R ichmond 23219
October 15, 1965
BULLETIN FROM STATE BOARD OF ELECTIONS
To All J udges op E lection:
On August 6, 1965, the “Voting Rights Act of 1965”
enacted by the Congress of the United States became effec
tive 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.
65a
Defendants’ Exhibit #4
These instructions also apply to precincts in which voting
machines are used.
Very truly yours,
State B oabd op E lections
/ s / Levin Nock Davis
Levin Nock Davis, Secretary
“Courtesy Makes Driving Safer”
66a
M otion fo r Sum m ary Judgm en t
Plaintiffs move that the court enter, pursuant to Rule 56
of the Federal Rules of Civil Procedure, a summary judg
ment in plaintiff’s favor for the relief demanded in prayers
B (1) and (3) of the Complaint, on the ground that there
is no genuine issue as to any material fact and that plain
tiffs are entitled to a judgment as a matter of law.
This motion is based upon (a) the complaint and answers
thereto (b) the affidavits of the plaintiffs attached to the
complaint and therewith served on each defendant, (c)
plaintiffs’ requests for admission as to which there was
neither sworn denial nor written objections in accordance
with Rule 36 (a), and (d) plaintiffs’ exhibits 1, 2 and 3.
/ s / H arold M. Marsh
Of Counsel for Plaintiffs
H ill, T ucker & Marsh
214 East Clay Street
Richmond, Virginia
J ack Greenberg
J ames M. Nabrit, III
10 Columbus Circle
New York, New York
Counsel for Plaintiffs
67a
M em orandum of th e C ourt
John D. Butzner, Jr., 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 congressional election.
Each pasted a sticker, upon which the write-in candidate’s
name was printed, on the official ballot under the names of
listed candidates and appropriately marked the ballot im
mediately preceding the sticker. These ballots were not
tabulated for the write-in candidate. Upon these undis
puted 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 candi
date whose name is not printed on the official ballot. The
plaintiffs pray that the defendants be enjoined from refus
ing to count any vote because the candidate’s name was
inserted on the official ballot by means other than the
voter’s handwriting. We conclude 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 Con
stitution, the absolute secrecy of the ballot shall be
maintained.”
68a
Memorandum of the Court
“§ 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.”
Section 24-252, Code of Virginia 1950, provides:
“Insertion of names on ballots.—At all elections ex
cept 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 con
tained in this section shall affect the operation 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 facilitating
voting and denounced as conductive to fraud and confusion.
Their use has been approved under statutes permitting
write-ins. Pace v. Hickey, 236 Ark. 792, 370 S.W. 2d 66
(1963); O’Brien v. Election Comm’rs., 257 Mass. 332, 153
N.E. 553 (1926); Dewalt v. Bartley, 146 Pa. 529, 24 Atl. 185
(1892); State v. Anderson, 191 Wise. 538, 211 N.W. 938
(1927). Illinois forbade their use, Fletcher v. Wall, 172 111.
69a
Memorandum of the Court
426, 50 N.E. 230 (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 Four
teenth Amendment because it discriminates against illiter
ates is not supported by authority. To the contrary, ex
clusion of illiterate persons from voting, if no other dis
crimination is practiced, does not violate the Fourteenth
Amendment.
In Lassiter v. Northampton Election Bd., 360 U.S. 45, 51
(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 intelli
gence are obviously not synonymous. Illiterate people
may be intelligent voters. Yet in our society where
newspapers, periodicals, books, and other printed mat
ter canvass and debate campaign issues, a State might
conclude that only those who are literate should exer
cise the franchise. * * * It was said last century in
Massachusetts that a literacy test was designed to in
sure an ‘independent and intelligent’ 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.”
70a
Memorandum of the Court
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
U.S. 53. No evidence has been presented that Virginia’s
prohibition of stickers has been administered in a discrimi
natory 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 lit
erate and illiterate voters.
The equal protection clause of the Fourteenth Amend
ment and the Fifteenth Amendment are not the only stand
ards by which state legislation governing the franchise
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 U.S. 663, 665
(1966); Katsenbach v. Morgan, 384 U.S. 641 (1966). The
plaintiffs urge that requiring the name of the write-in
candidate to be inserted in the voter’s own handwriting vio
lates the Voting Eights Act of 1965 (42 U.S.C. § 1973,
et seq,). The constitutionality of pertinent sections of the
Act is not in dispute. Cf. South Carolina v. Katsenbach, 383
U.S. 301 (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 suspended.
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
failure to comply with any test or device in any
State * *
71a
Memorandum of the Court
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. § 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 other
wise 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
voters of election, upon request, to assist a physically handi
capped 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 provision
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
register. The Board of Elections recognized that illiterates
might need assistance with their ballots. For this reason,
it instructed all judges of election:
72a
Memorandum of the Court
“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 8, 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 Vir
ginia 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 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 plain
tiffs 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.8.C. §1973b(c). The requirement did not
preclude the plaintiffs from registering or from voting.
Under present Virginia statutes and regulations of the
Board of Elections, an illiterate can cast a valid write-in
ballot by enlisting the assistance of a judge 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.
May 2,1967
73a
Judgment
For reasons stated in the opinion of the court this day
filed;
It is Adjudged and Ordered that the prayer of the plain
tiffs’ complaint is denied, the complaint is dismissed, and
the action is stricken from the docket with costs taxed
against the plaintiffs.
United States Circiut Judge
/ s / J ohn D, Butzneb, J r.
United States District Judge
/ s / Albert Y. B ryan
United States Circiut Judge
/ s / H arrison L. W inter
74a
Plaintiffs’ Notice of Appeal
I. Notice is hereby given that the plaintiffs Richard
Allen, Lena W. Dunn, Washington Moore, McKinley Dunn,
Nora Tyler, James Gilbert Tyler, Fannie M. Brown,
Patrick N. Brown and James Donikens hereby appeal to
the Supreme Court of the United States from the final
order entered in this action on May 2,1967 whereby prayers
B (1) and (3) of the plaintiffs’ complaint for a declaratory
judgment and injunctive relief were denied and said com
plaint was dismissed.
This appeal is taken pursuant to 28 U.S.C. § 1253.
II. The clerk will please prepare a transcript of the rec
ord in this cause, for transmission to the Clerk of the
Supreme Court of the United States, and include in said
transcript the following:
1. Docket entries
2. Complaint and affidavits filed therewith
3. Notification and request for designation of three-
judge court
4. Designation of three-judge court
5. Pre-trial order
6. Answer of State Board of Elections
7. Answer of Robert E. Garnett and J. F. Lipscomb
8. Answer of Thomas Brown
9. Answer of Paul Bell
10. Answer of Mark Grizzard, Benjamin Griffin and
Forest Lankford
11. Request for Admissions
75a
Plaintiffs’ Notice of Appeal
12. Response to Plaintiffs’ Request for Admissions,
filed by State Board of Elections
13. Response to Plaintiffs’ Request for Admissions,
filed by Robert E. Garnett and J. F. Lipscomb
14. Response to Plaintiffs’ Request for Admissions,
filed by Thomas Brown and Paul Bell
15. Response to Plaintiffs’ Request for Admissions,
filed by Mark Grizzard, Forest Lankford and Ben
jamin Griffin
16. Plaintiffs’ Exhibit No. 1 (Sticker or Paster)
17. Plaintiffs’ Exhibit No. 2 (Statement of the Vote)
18. Plaintiffs’ Exhibit No. 3 (Table showing Dispari-
ities)
19. Defendants’ Exhibit # 1 (Letter to all registrars)
20. Defendants’ Exhibit #2 (Memo to general regis
trars)
21. Defendants’ Exhibit #3 (Letter to Secretaries of
Electoral Boards)
22. Defendants’ Exhibit # 4 (Bulletin to all judges of
elections)
23. Motion for Summary Judgment
24. Plaintiffs’ Pre-trial Brief
25. Brief in Behalf of Defendants
26. Opinion of the Court
27. Judgment
28. This Notice of Appeal
76a
Plaintiffs’ Notice of Appeal
III. The following questions are presented by this ap
peal:
1.
Does the Fourteenth Amendment inhibit Virginia
from denying to electors who cannot write the privilege
of voting secretly for a person not named on the ballot,
while extending such privilege to electors who can
write!
2.
Does the Voting Eights Act of 1965 inhibit Virginia
from denying to electors who cannot write the privilege
of voting secretly for a person not named on the ballot,
while extending such privilege to electors who can
write ?
/ s / S. W. T tjckeb
Of Counsel for the Plaintiffs
S. W. Tucker
Address: 214 East Clay Street
Richmond, Virginia 23219
S. W. T tjckeb
H aeold M. Mabsh
H ill, T tjckeb & Mabsh
214 East Clay Street
Richmond, Virginia 23219
J ack Greenberg
J ames M. Nabeit, I I I
10 Columbus Circle
New York, New York 10019
Counsel for Plaintiffs
77a
Motion to Enlarge Time for Filing
Jurisdictional Statement
Plaintiffs move the Court to extend until September 28,
1967, the time within which plaintiffs may tile their Juris
dictional Statement, on the grounds that such an extension
will afford plaintiffs’ attorneys adequate time to compre
hensively present and develop the issues raised herein,
No previous extensions of time have been obtained from
the adverse party or granted by this Court.
/ s / S. W. T ucker
Of Counsel For Plaintiffs
S. W. T ucker
H arold M. Marsh
H ill, T ucker & Marsh
214 East Clay Street
Richmond, Virginia 23219
J ack Greenberg
J ames M. Nabrit, III
10 Columbus Circle
New York, New York 10019
Counsel for Plaintiffs
78a
Order Granting Motion to Enlarge Time to File
Jurisdictional Statement
Plaintiffs having moved the Court to extend until Septem
ber 28, 1967, the time within which plaintiffs may file their
Jurisdictional Statement, and it appearing to the Court
that the motion is made for good cause, it is
Ordered, that plaintiffs’ time to file their Jurisdictional
Statement in the above entitled cause be extended to and
including the 28th day of September, 1967.
Let the Clerk send copies of this order to counsel of
record.
United States Circuit Judge
August 23, 1967
79a
Order Extending Time for Docketing Appeal
It being represented unto the court that further time will
be required by the clerk within which to prepare and file
the appeal record in this action in the United States Su
preme Court,
I t is ordered that the time for docketing the appeal in
this case in the aforesaid court be and the same hereby is,
extended to and including the eighth day of September,
1967.
Let copies hereof be forwarded to counsel of record.
/ s / J ohn D. Butzner, J r.
United States District Judge
Designate
Entry Nunc Pro tunc August 8, 1967,
August 24, 1967
80a
Order of United States Supreme Court
Postponing Jurisdiction
(Filed June 10, 1968)
No. 661, Allen v. State Board of Elections
Further consideration of the question of jurisdiction in
this case is postponed to the hearing of the case on the
merits. The case is placed on the summary calendar.
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