Memorandum from Gibbs to Guinier

    I n  t h e

Minted States (Ennrt n! Appeals
F oe t h e  F if t h  C ir c u it

No. 23,582

M aby F is h e  B e l l  et al.,

v.
Appellants,

J .  W . S o u t h w e l l  et al.,
Appellees.

A PPEA L  FR O M  T H E  U N IT E D  STATES D ISTR IC T  COURT 

FO R  T H E  M ID D LE D ISTR IC T  OF GEORGIA

BRIEF FOR APPELLANTS

C. B. K in g  
D e n n is  J .  R oberts 

P. 0, Box 1024 
Albany, Georgia

J ack  Greenberg  
C h a rles  S t e p h e n  R alston  
M elvyn  Z arr

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants



I N D E X

PAGE

Statement of the Case .................................................  1

Specification of Error ...........-.....................................  4

A r g u m e n t

I. The Practices Complained of by Appellants 
in Their Complaint Violated the Fourteenth 
Amendment to the Constitution ..................... 5

II. In View of the Unconstitutional Acts of the 
Appellees, the Appellants Were Entitled to the 
Only Relief That Would Effectively Redress 
the Denial of Their Constitutional Rights, the 
Setting Aside of the Election and the Ordering 
of a New One ................ ............. ........... -....... 6
A. The Court Was Incorrect in Deciding That

the Evidence Failed to Show That the 
Election Had Been Affected ---------------  I

B. The Voiding of the Unconstitutionally
Conducted Election Is Proper and Neces­
sary Relief ....... ........-........—-.....-........... - H

C. State Law Is No Bar to the Ordering of a
New Election -...........-..................-........-..... H

C o n clu sio n  .........................................................................................  -- *

Certificate of Service 18



ii

T able of C ases

p a g e

Anderson v. Courson, 203 F. Supp. 806 (M.D. Ga.
1962) ...... ................................................................... - 13

Anderson v. Martin, 375 U.S. 399 —......... -.............8, 9,11
Avery v. Georgia, 345 U.S. 559 .........— ......... -... ...... 9

Bell v. Horne, 10 Race Rel. L. Rep. 1247 (M.D. Ga.
C.A. No. 580, 1965) .................................................  3,5

Evans v. Newton, 382 U.S. 296 ..... .................... ....... 10

Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966)
8,11,12,13

Kill or in v. Mitchell, 141 Ga. 524, 81 S.E. 443 (1914) .... 15

McGill v. Ryals, 253 F. Supp. 374 (M.D. Ala., 1966) ....12,13
McNeese v. Board of Education, 373 U.S. 668 --- ------  16
Monroe v. Pape, 365 U.S. 167 ................. .....................  16

Peterson v. Greenville, 373 U.S. 244 ................ ........ 10

Reynolds v. Sims, 377 U.S. 533 ............... - ....-.......- 12
Robinson v. Florida, 378 U.S. 153 .............................. 10

Sellers v. Trussed,-----F. Supp.------  (M.D. Ala. C.A.
Nos. 2361 X. 2373-N, April 15, 1966) ........ ........... . 16

Turney v. Ohio, 273 U.S. 510 ..................................... 10

United States v. Bibb County Democratic Executive 
Committee, 7 Race Rel. L. Rep. 488 (M.D. Ga. C.A.
No. 1838, 1962) ....................... ............................ - - -  14

United States v. Chappell, 10 Race Rel. L. Rep. 1247 
(M.D. Ga. C.A. No. 579, 1965) ...............................  3,5



Ill

PAGE

Williams v. Georgia, 349 U.S. 375 ...................... ....... 9
WMCA, Inc. v. Lomenzo, 246 F. Supp. 953 (S.D. N.Y. 

1965) ........................................................................... 16

F ederal S tatute

42 U.S.C. §1983 ............................................................  16

S tate S tatutes

Georgia Code Annotated §24-406 ................................ 4,15
Georgia Code Annotated §24-408 ................... ........4,14,15



I n  t h e

Intlri) States (Court of Appeals
F oe t h e  F if t h  C ir c u it  

No. 23,582

M ary F is h e  B e l l  et al.,
Appellants,

v.

J. W. S o u t h w e l l  et al.,
Appellees.

A PPEA L  EEO M  T H E  U N IT E D  STATES D ISTR IC T COURT 

F O E  T H E  M ID D LE D IST R IC T  OF GEORGIA

BRIEF FOR APPELLANTS

Statement of the Case

This is an appeal from an order of the United States 
District Court in the Middle District of Georgia, denying 
injunctive relief to the appellants and granting summary 
judgment to the appellees in an action seeking to set aside 
an election held in Americus, Georgia, on July 20, 1965.

On July 29, appellants filed in the Middle District of 
Georgia, Americus Division, a verified complaint under 
28 U.S.C. §1343(3), (4), and 42 U.S.C. §§1971, 1981, 1983 
and 1985 (Record pp. 2-10), accompanied with motions 
for a temporary restraining order and a preliminary in­
junction and applications for orders to show cause (R. 
pp. 11-17). The plaintiffs below, appellants here, are 
Mary Fishe Bell, a qualified Negro elector in the 789th



2

Militia District and a candidate for the office of justice 
of the peace in the district, and Mamie P. Campbell, Gloria 
Ann Wise, acting by her mother and nest friend, Mrs. 
Willie Wise, and Lena Turner, who are also qualified Ne­
gro voters (R. pp. 4, 6). They brought the action on their 
own behalf and on behalf of other Negroes and other voters 
in the 789th Militia District.

The complaint alleged, in brief, that officials, including 
defendant-appellee Horne, responsible for the conduct of 
the election for justice of the peace for the 789th Militia 
District in Americus, Sumter County, Georgia, had con­
ducted the election in violation of rights established under 
the Constitution and laws of the United States. The alle­
gations were that: voting lists for the election were segre­
gated on the basis of race (R. p. 5) ; voting booths were 
segregated according to race, with one booth for “white 
males”, another for “white women”, and a third for Ne­
groes (Ibid. ) ; a number of qualified Negro voters were 
denied the right to cast their ballots in the “white women’s” 
booth (Ibid.); the plaintiffs were commanded by the deputy 
sheriff of Sumter County, acting under the direction of 
defendant-appellee Eugene Horne, the ordinary of Sumter 
County, to leave the white women’s polling booth (Ibid.) ; 
the plaintiffs were subsequently arrested by the deputy 
sheriff outside the door to the white women’s polling 
booth after they had insisted to him that they had the 
constitutional right to vote without being subjected to dis­
crimination (R. p. 6); the voting officials prevented author­
ized representatives of plaintiff Bell from viewing the 
voting process and supervising the counting of the vote, 
all on account of their race (Ibid.); and these actions of 
the officials had the effect of intimidating Negro voters, 
and a large and indeterminate number of Negro and white 
voters were deterred from exercising their franchise 
(R. p. 7).



3

The plaintiffs asked that the court declare that defen­
dant-appellee Southwell was not the legally elected Justice 
of the Peace for the District, that he be enjoined from 
taking office, and that defendant-appellee Horne be en­
joined from failing to call a new election.

The present action was filed at the same time as two 
others that alleged substantially the same facts. The first, 
United States v. Chappell, C.A. No. 579, was filed by the 
United States against officials of Sumter County, and the 
second, Bell v. Horne, C.A. No. 580, was filed by the present 
appellants and sought essentially the same relief as the 
suit brought by the United States. In those two actions 
the District Court entered an injunction enjoining the 
defendants from maintaining, in the future, racial segrega­
tion at the polls, from arresting or interfering with Negro 
voters, from maintaining segregated voting lists, and from 
prosecuting the appellants herein because of the conduct 
which resulted in their arrests on July 20, 1965. 10 E. Eel. 
Law Eep. 1247.

In the present case, on the other hand, the Court denied 
a temporary restraining order or a preliminary injunction. 
Subsequently, the defendants filed an answer and a motion 
to dismiss, with supporting affidavits. In their answer the 
defendants admitted that the voting lists and the voting 
booths were segregated as alleged by the plaintiffs (E. 
p. 19). Although the other allegations of racial discrim­
ination and intimidation made by the plaintiffs were de­
nied, the plaintiffs had no opportunity to present evidence 
in support of their allegations since no hearing was held. 
The affidavits set out the results of the election of July 20, 
1965 as follows: The plaintiff Bell received 332 votes, 
defendant Southwell received 2,001 votes, and 448 other 
votes were divided between four other candidates (E. 
p. 25). The affidavits further alleged that there were



4

1,223 registered Negro voters, of whom 403 cast ballots 
in the election (R. pp. 26-27).1

On the basis of the pleadings and the affidavits filed 
by the defendants, the District Court denied the relief 
sought by the plaintiffs, and, treating the motion to dismiss 
of the defendants as one for summary judgment, granted 
said motion. There were three grounds for the ruling: 
first, the Court held that there was no indication that the 
actions complained of by the plaintiffs affected the outcome 
of the election. The district judge held that even assuming 
that some Negroes were intimidated and stayed away 
from the polls, and that all the qualified Negroes who did 
not vote could be added to the combined votes of all the 
candidates running against defendant Southwell, the total 
would only be 1,600 votes, short of the 2,001 votes given 
to Southwell. Secondly, Georgia Code Annotated §§24-406 
and 24-408 were interpreted by the Court to mean that if 
the election were voided, it would be beyond the Court’s 
power to order a new election since the statutes gave the 
county ordinary the power to appoint someone to fill the 
office of Justice of the Peace. And, thirdly, the Court said 
that there was no authority for a Federal Court in such 
a case to void a state election (R. pp. 32-34). A timely 
notice of appeal from the decision was filed (R. pp. 37-38).

Specification of Error

The Court below erred as a matter of law in denying 
relief to plaintiffs and in granting summary judgment on 
behalf of the defendants where the evidence showed that

1 No evidence was presented, however, as to the number of white voters 
who were registered and did not vote. Therefore, the allegation of appel­
lants that white voters were deterred from voting was not contravened 
(R. p. 7).



5

state officials segregated polling booths, arrested a candi­
date because of her race, and otherwise acted in violation 
of the Equal Protection Clause of the Fourteenth Amend­
ment so as to introduce race as a factor into an election.

ARGUMENT

I.

The Practices Complained of by Appellants in Their 
Complaint Violated the Fourteenth Amendment to the 
Constitution.

There can be no doubt that the disputed election was 
permeated with acts of the state that were in gross vio­
lation of the appellants’ rights to be free of racial dis­
crimination. In the two companion cases to the present 
action, the District Court below so held and issued an 
injunction against their continuance. United States v. 
Chappell, C.A. No. 579 and Bell v. Horne, C.A. No. 580. 
(10 R. Eel. Law R. 1247, July 30, 1965.) The practices 
included segregated voting lists, segregated voting booths, 
and the arrest and prosecution of the appellants, one of 
whom was a candidate for office in the election, for at­
tempting to use a “white” voting booth. In the Court 
below, the appellees did not dispute these facts nor did 
they contend that they did not violate the Constitution. 
Rather, they only showed by affidavits the result of the 
vote cast under the circumstances alleged in the complaint. 
Their position, and that of the District Court, was that 
because the defendant Southwell received a plurality of 
the votes, even counting in the votes of registered Negroes 
who failed to cast votes, there was no proof that the 
actions complained of had any effect on the election re-



6

suits.2 Given, therefore, the admissions of the appellees 
and the Court that the practices were unconstitutional, 
the central issue in the present case is whether the appel­
lants were entitled to the relief sought, viz., a declaration 
that the election was illegal, a prohibition against appellee 
Southwell taking office as a result of the election, and an 
injunction requiring appellee Horne to call a new election 
free of the discriminatory practices.

II.
In View of the Unconstitutional Acts of the Ap­

pellees, the Appellants Were Entitled to the Only Relief 
That Would Effectively Redress the Denial of Their 
Constitutional Rights, the Setting Aside of the Election 
and the Ordering of a New One.

The Court below took the view that insuring future 
desegregated elections in the companion cases gave the 
appellants herein adequate relief and that the court should 
leave undisturbed the tainted election. The Court assigned 
three reasons for its decision:

1. There was no evidence that the outcome of the 
election was affected (R. p. 32).

2. Federal courts are powerless to void elections 
(R. pp. 33-34).

3. Voiding the disputed election would not enable 
appellants to participate in a new election because 
since Georgia law did not provide for new elections

2 However, the affidavits did not in any way contravene the allegation 
that white voters stayed away from the polls because of the acts com­
plained of. For this reason alone there was a substantial question of fact 
that could not be resolved on a motion for summary judgment.



7

appellee Horne would be authorized to appoint appellee 
Southwell to the office (R. pp. 32-33).

Appellants submit that none of these reasons justifies 
withholding the relief they seek.

A. T he C ourt W as Incorrect in  D ecid ing  That the E vi­
dence Failed to  Show That the E lection  H ad B een  
Affected.

The Court below concluded that the result of the election 
was not affected by the practices complained of by cal­
culating that the number of votes for appellee Southwell 
exceeded the sum of the number of votes for all South­
well’s opponents and the number of registered Negro 
voters who did not vote. Appellants contend that the 
reliance on such a calculation was error because it failed 
to meet the crux of appellants’ claim in this case. It is 
admitted that in the usual case challenging the results of 
an election, the issue is whether election officials or others 
changed, in some way, the number of valid votes; for 
instance, if in an election 2,500 votes were cast for one 
candidate and 1,000 for a second, and the second candidate 
claimed that 500 of his opponent’s votes were cast fraudu­
lently, he would not be able to prevail in an action con­
testing the election since even if the fraudulent votes were 
subtracted he would not have won.

In the present case, however, the claim of the appellants 
is of an entirely different nature. Essentially, it is that 
official action in flagrant violation of the Constitution so 
infected the voting process so as to raise a presumption 
that the vote of every actual and potential voter, both 
Negro and white, was affected. The effects ranged from 
keeping voters away from the polls to influencing the votes 
of those who cast ballots. What the District Court failed 
to take into account was the impact of the unconstitutional



8

practices on white voters. Indeed, it was not constitu­
tionally permissible for the Court to assume, as it evi­
dently did, that all white voters would vote for white can­
didates, all Negroes for Negroes, or that no whites would 
vote for Negroes in a free, untainted election. See, Hamer 
v. Campbell, 358 F.2d 215, 219 (5th Cir. 1966).

Appellants contend that there is a constitutional pre­
sumption that actions such as were carried out here will 
affect the outcome of an election and that therefore it is 
not necessary that they demonstrate actual prejudice by 
showing that individual voters were in fact induced to 
change their vote. The Supreme Court has already held 
that such a presumption exists where race is injected by 
the state into an election. Anderson v. Martin, 375 IT.S. 
399 (1964). The undoubted, and probably intended, effect 
of the practices complained of here was to encourage all 
voters, white and Negro, to cast their votes along racial 
lines. That encouragement violated the equal protection 
clause of the Fourteenth Amendment. Anderson v. Martin, 
supra. Moreover, by labeling the election with racism the 
entire election was tainted and rendered wholly void. This 
result is compelled by the decision in Anderson, where the 
Supreme Court, in striking down a Louisiana law requir­
ing the designation of the race of each candidate on bal­
lots, unanimously held:

[B]y placing a racial label on a candidate at the most 
crucial stage in the electoral process—the instant be­
fore the vote is cast—the State furnishes a vehicle 
by which racial prejudice may be so aroused as to 
operate against one group because of race and for an­
other. This is true because by directing the citizen’s 
attention to the single consideration of race or color, 
the State indicates that a candidate’s race or color 
is an important—perhaps paramount—consideration



9

in the citizen’s choice, which may decisively influence 
the citizen to cast his ballot along racial lines. 375 
U.S. at 402.

And just as the racial designation did in Anderson, so 
the segregated voting facilities and the arrest of a Negro 
candidate attempting to use a white voting booth here 
could only have directed the voters’ attention to race and 
served as an indication by the state “that the candidate’s 
race or color is an important . . . consideration in the citi­
zen’s choice”. Certainly appellees cannot maintain that 
placing racial designations on ballots is constitutionally dis­
tinguishable from conducting seguegated elections. Nor 
may appellees maintain that legal injury to appellants 
turns on the racial composition of the community. This 
latter contention was raised and explicitly rejected by the 
Supreme Court in Anderson v. Martin, the Court saying 
(375 U.S. at 402) : “The vice lies not in the resulting in­
jury but in the placing of the power of the State behind 
a racial classification that induces racial prejudice at the 
polls”.

In other contexts, Federal courts have presumed that 
certain procedures and practices affect outcomes because 
of the difficult problems of proof raised in establishing 
actual prejudice. For example, in cases involving the ex­
clusion of Negroes from juries, it is not necessary to prove 
that the actual jurors that decided the case were in fact 
prejudiced against a Negro defendant. Prejudice is pre­
sumed from the atmosphere and context of a system of 
justice which excludes members of the race to which the 
defendant belongs. Also, in Avery v. Georgia, 345 U.S. 
559 (1953), and Williams v. Georgia, 349 U.S. 375 (1955) 
the practice of having names of Negro and white jurors on 
differently colored slips was presumed to affect the selec-



10

tion of the jury, and it was not necessary to prove actual 
prejudice on the part of the judge. And in Tumey v. Ohio, 
273 U.S. 510 (1927), the Supreme Court, in effect, pre­
sumed that a judge who had a financial interest in a verdict 
would be prejudiced against rendering a verdict of ac­
quittal without requiring that there be evidence that there 
was such prejudice in the case of the particular judge in­
volved. Finally, the Court has held, in sit-in cases, that if a 
state statute or regulation requires or promotes racial 
discrimination convictions must be set aside regardless of 
the “mental urges” of the restaurant owners. Peterson v. 
Greenville, 379 U.S. 244, 248 (1963); Robinson v. Florida, 
378 U.S. 153 (1964); and see the concurring opinion of Mr. 
Justice White in Evans v. Newton, 382 U.S. 296, at 305- 
312 (1966). In all of the above cases, of course, the remedy 
is to void the tainted proceeding.

In summary, appellants contend that they are entitled, 
on the basis of the facts demonstrated, to a new election 
free of discriminatory and repressive actions that could 
have had for their sole purpose the creation of racial 
hatred and devisiveness in order to influence the vote of 
all citizens. Thus, appellants need not prove the effect of 
the actions on every voter, white and Negro. At the very 
least, the burden should be shifted to the appellees to prove 
that the actions of the state did not have their intended 
result. That is, they must demonstrate that no voters 
were affected and that a free vote would have had the 
same outcome.8 To hold otherwise would give the anom­
alous result that the state and its officials could deliberately 
surround an election with all the aspects of a racially seg-

3 Appellants urge first, however, that the proper holding is that the 
presumption contended for is irrebuttable, and that appellants are entitled 
to the relief sought regardless of any evidence of the mental state of the 
voters. Cf., Peterson v. Greenville, 373 U.S. 244 (1963).



11

regated society and then cast on those aggrieved the nearly 
impossible and onerous burden of proving that their acts 
did not have the intended effect of encouraging voters to 
vote on racial lines.

B. The V oiding o f  the U nconstitu tionally C onducted  
E lection  Is P ro  p er  and N ecessary R elief.

Appellants contend that the election complained of 
must be set aside and a new one ordered in order to pro­
vide the only effective redress for the wrongs complained 
of herein and in order to ensure that other elections will 
not be conducted in violation of the Constitution. The 
Court below expressed doubt as to the power of a federal 
court to set aside a state election, saying, “only a few mo­
ments reflection is needed to realize that the implications 
of such a decision would be staggering” (Record p. 34). 
Concededly, to set aside an election is a drastic remedy, but 
it is proper and required in circumstances such as existed 
here where practices “which may decisively influence the 
citizen to cast Ms ballot along racial lines” (Anderson v. 
Martin, 375 U.S. at 402), infect an entire election and 
“[r]elief, if it is to be had, must perforce come from the 
Court or the voters must simply be told to wait four more 
years”. Hamer v. Campbell, 358 F.2d 215, 222 (5th Cir. 
1966).

In Hamer v. Campbell, supra (decided after the decision 
below herein),4 this Court made clear that federal courts 
do possess the power to set aside disputed elections under 
appropriate circumstances. In Hamer the complaint sought 
an injunction against the holding of an election in Sun­
flower County, Mississippi, on the grounds that prior HIs-

4 The Supreme Court, on June 17, 1966, issued a stay of the mandate
” :nding the filing of a petition for



12

criminatory action by state officials had kept Negroes from 
registering to vote. Plaintiffs sought to have an np-coming 
election delayed until newly registered Negro voters were 
eligible to vote in the election. The District Court denied 
the injunction, and this Court denied an injunction pend­
ing appeal on the ground that it could give complete relief 
on appeal if the District Court had erroneously refused to 
issue the injunction. In determining the appeal, the Court 
held that the injunction shottld have issued, and that under 
the special circumstances of the case the election should be 
set aside and a new election ordered. Hamer was cited in 
another recent case in which elections -were sought to be 
voided. There, a three-judge District Court in Alabama 
said, “It is clear, therefore, that the issue which confronts 
this Court is not whether we have the power to grant the 
relief which plaintiffs ask, but whether . . .  it is appropriate 
to do so”. McGill v. Ryals, 253 F. Supp. 374, 376 (M.D. 
Ala. 1966).5

Appellants contend that the present case is one in which 
the circumstances require the setting aside of the election, 
and one in which such relief is appropriate, since it is the 
only way in which effective redress of the unconstitutional 
acts complained of can be assured. In Hamer, since the 
violations occurred before the election, this Court made it 
clear that the prompt action of the appellants in seeking 
an injunction was a pre-condition for their getting the elec­
tion set aside. Here the actions complained of did not oc­
cur until the actual day of election. Of particular impor­
tance is the fact that appellant Bell, one of the candidates 
for the office at stake, and three other Negro voters were

6 The existence of the power of a federal court to effect a redress of 
violations of constitutional rights by setting aside an improperly held 
election is also inferrable from the decision of the Supreme Court in 
Reynolds v. Sims, 377 U.S. 533, 552, 586-7 (1964).



13

arrested for attempting to exercise their constitutional 
rights on election day. The appellants promptly filed this 
action on July 29, 1965, just nine days after the election 
was held, and while they were still in jail (R. pp. 17-19). 
Moreover, the action was filed before appellee Southwell 
had assumed office.

Hence, this is not a case in which a challenge to an elec­
tion for discrimination, segregation, or other unlawful ac­
tions was brought long after the election was held and 
after candidates had assumed office and served therein. 
In such cases, the equitable principles of estoppel and laches 
could be appropriately applied together with a policy 
against disrupting state governments. In McGill v. Ryals, 
supra, relief was denied and the complaint dismissed on the 
basis of such considerations. The court there, however, in­
dicated that the result might well have been different if 
relief had been sought a “reasonable time” after the elec­
tions. 253 F. Supp. at 376. In the present case, the equities 
are all on the side of the appellants, and thus the denial 
of full relief, a fundamental right, “cannot be justified in 
the name of equity”. Hamer v. Campbell, 358 F.2d at 
222.

An equally important ground for granting the relief 
sought in this case is that it is the only effective way of 
insuring that state voting officials will not be able to con­
duct at least one election illegally and reap the advantages 
of their action for four years, as here, or for whatever the 
term of the office may be. Racial segregation at the polls is 
not, unfortunately, unique to Americus, Georgia. Indeed, 
a federal district court in Georgia has twice held that seg­
regated election facilffisgwrolated the federal constitution. 
Once the court wa/'setting/iri Albany, Georgia, Anderson 
v. C our son, 203 F. SupW$06 (M.D. Ga. 1962), which is only 
40 miles from Americu/, and once in Macon, 72 miles from



14

Americas, United States v. Bibb County Democratic Execu­
tive Committee, 7 Race Eel. L. Eep. 488 (M.D. Ga. C.A. 
No. 1838, 1962). Election officials in Americas nonetheless 
ignored these decisions and there is nothing to prevent 
other election officials in the area, to whom the injunctions 
issued in the companion cases to the present action do not 
run, from similarly holding at least one election surrounded 
by segregation in the hope of perpetuating local and state 
governments from which Negro representation is barred. 
Only by making clear that such elections are invalid and 
will have to be held again free of racial segregation and 
discrimination can the federal courts effectively deal with 
this problem.

C. Stale Law Is No B ar to  the O rderin g  o f  a New E lection.

The District Court reasoned that to void the disputed 
election would be a “futile declaration” because appellant 
Bell “would not be given another turn at the polls” (E. 
p. 33). The Court relied upon a “peculiarity” in Georgia 
law, namely, the proposition that “[when] an election is 
held and is determined not to have been bona fide, no re- 
election is held but rather the Ordinary appoints a Justice 
of the Peace for the required term” {Ibid.). Therefore, 
the Court concluded that “the only result of a declaration 
of voidness in respect to the election would be to force the 
Ordinary to appoint the defendant Southwell . . . ” {Ibid.).

Appellants submit that no such “peculiarity” exists in 
Georgia law. The Court below relied upon Ga. Code Ann., 
24-408, which provides:

24-408. Failure to elect to supply vacancy.—
When any district is without a justice of the peace, 
and an election has been legally ordered to supply the 
vacancy, and none is bona fide held at the time and



15

place designated, the ordinary shall appoint some per­
son resident in the district, and certify the appoint­
ment to the Governor, who must commission the ap­
pointee for the required term.

The court apparently assumed that a “vacancy” would 
occur when one term expired and an election for a new 
term was held. Such a definition is refuted by a companion 
section, 24-406 (1965 Supp.) :

24-406. Election to fill vacancy—
When a vacancy shall occur in the office of justice of 
the peace the ordinary of the county shall issue the 
call for an election to fill such vacancy in the district 
where the vacancy occurs. Such election shall be held 
within 30 days from the date the vacancy occurs and 
the ordinary shall give notice of the date and purpose 
of such election by advertising the same in the official 
organ of the county at least 10 days prior to the date 
thereof. He shall also post a notice at the courthouse 
and at three of the most public places in the district. 
In the event there is a notary public ex-officio justice 
of the peace in the district where the vacancy occurs, 
he along with two freeholders shall hold the election 
in the same manner in which a regular election for 
justice of the peace is held and shall duly certify the 
election to the Governor who shall commission the 
person elected for the unexpired term. (Emphasis 
added.)

Section 24-406 thus makes it clear that when a vacancy 
occurs, for whatever reason, a new election can and indeed 
must be held (See, Killorin v. Mitchell, 141 Ga. 524, 81 
S.E. 443 (1914), interpreting the predecessor to the sec­
tion). §24-408 apparently only comes into effect after an



16

election is called to fill a vacancy occurring between regular 
elections and that new election is not bona fide held. Hence, 
Georgia law requires rather than prevents a new election 
being held if the one of July 20, 1965, is set aside.

Moreover, even if the Georgia law could be construed as 
the District Court interpreted it, there can be no doubt 
that it can not bind a federal court in the exercise of its 
equity powers in a suit brought under 42 U.S.C. §1983. 
It is clear from decisions of the United States Supreme 
Court that actions brought under that statute are inde­
pendent federal claims and that federal courts have broad 
powers to render effective decrees in order to redress 
violations of Constitutional and federal statutory rights. 
Monroe v. Pape, 365 U.S. 167 (1961); McNeese v. Board of 
Education, 373 U.S. 668 (1963). Therefore, if this Court 
concludes that the holding of a new election is the only 
effective remedy for the wrongs complained of as appel­
lants contend, then it has full power to so order, uninhibited 
by any state statutory provision. See, WMCA, Inc. v. 
Lomenso, 246 F. Supp. 953 (S.D. N.Y. 1965), where a 
three-judge federal court put into effect a reapportion­
ment plan despite a holding by the New York Court of 
Appeals that the plan did not comply with the New York 
State Constitution. See also, Sellers v. Trussell, — — F.
Supp. -----  (M.D. Ala. C.A. Nos. 2361-N, 2373-N, 1966)
where the court ordered an election despite a state statu­
tory provision.



17

CONCLUSION

Wherefore, for the foregoing reasons, the judgment be­
low should he reversed.

Respectfully submitted,

C. B. K in g  
D e n n is  J. R oberts 

P. 0. Box 1024 
Albany, Georgia

J ack  Greenberg  
C h arles  S t e p h e n  R alston  
M elvyn  Zarr

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants



18

Certificate of Service

This is to certify that on July 1, 1966, I served a copy 
of the foregoing Brief for Appellants on the attorneys for 
appellees listed below, by mailing copies thereof to them by 
United States mail, postage prepaid:

M e . G eobge R . E l l is , J e .
Attorney at Law 
Americus, Georgia

M e . E u g en e  H oene  
Attorney at Law 
Americus, Georgia

Attorney for Appellants



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