Whitley v. Williams Appendix

    APPENDIX

IN THE

l^prom r Court of tljr Umirft #tatrn
October T erm, 1968

No. 36

Clifton W hitley, et al., Appellants,

Y.

J ohn B ell W illiams, Governor of M ississippi, bt al.,
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF MISSISSIPPI 

(THREE JUDGE COURT)

FILED FEBRUARY 28, 1968 
JURISDICTION POSTPONED JUNE 10, 1968



IN THE

fttpratt? (Eflturi of tty? Intfrfr &Ut?%
O ctober Term, 1968

No. 36

Clifton W hitley, bt al., Appellants,

v.
J ohn Bell W illiams, Governor of Mississippi, et al., 

Appellees.

ON APPEAL PROM TEE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF MISSISSIPPI 

(THREE JUDGE COURT)

LIST OF CONTENTS
Page

Relevant Docket Entries in Proceeding B e low ...........  1
Complaint ..........................................................................  2
Answer .............................................................................  9
Opinion of District Court, October 26, 1966 .................  14
Order Granting Temporary Injunction, October 27,1966 16
Motion for Interlocutory Injunction ..........................   17
Affidavits .......................................................................... 19-32
Opinion of District Court, October 27, 1967, Including 

Appendix A (Stipulation) and Appendix B 
(Letter) .................................................................... 33

Judgment, October 31, 1007 ...........................................  41
Notice of Appeal ........................................................   42
Order Postponing Jurisdiction...................................... 45



APPENDIX

Relevant Docket Entries in Proceeding Below

10-20-66r—Complaint, original and six copies, filed.
* * * * * * * * * *
10-26-66—Answer of defendants with certificate of serv­

ice—filed. Copies of answer handed to each of the 
3 judges at Biloxi.

10-26-66—-Per Curiam opinion —- ‘ ‘An order accordingly 
may be presented.” , filed.

# # * # # # * # * *
10-27-66—Order granting temporary injunction, filed and 

entered OB 1966, Pages 866 and 867.
* * # * # # # # * #
9- 25-67—Stipulation as to House Bill 68, Mississippi Laws

1966, amending Section 3260; Mississippi Code 1942, 
filed. Copies of stipulation mailed to Judges Ains­
worth, Cox & Russell.

10- 13-67—Plaintiff’s Notice of Motion on 10-20-67 at
Jackson, Miss., with Motion for interlocutory injunc­
tion and Certificate of service w7ith affidavit attached, 
filed.

10-27-67—Opinion before Ainsworth, Circuit Judge, and 
Cox and Russell, District Judges: “ The motion for 
an interlocutory injunction is accordingly denied, and 
the complaint in its entirety is without merit and is 
dismissed; The judgment incorporating this per 
curiam opinion by reference thereto may be pre­
sented and signed by the managing judge of this 
Court as the order of the entire Court,”  filed. Copies 
transmitted to attorneys and three judges.

10-31-67—F inal J udgment: Plaintiffs’ motion for an in­
terlocutory injunction is denied, and the complaint 
herein in its entirety, be and is hereby, dismissed,



2

filed and entered OB 1967, Page 1022. (Copy mailed 
attorney Will S. Wells)

10-31-67—Plaintiffs’ Notice of Appeal to the Supreme 
Court of the United States from Pinal Judgment of 
10-31-67, with certificate of service, filed.

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

JACKSON DIVISION

Civil Action No. 4025
R ev. Clifton W hitley, D ock Drummond, and E mma 

S a n d e r s , on behalf o f themselves and all other persons 
similarly situated, Plaintiffs

v.
P aul B. J ohnson, as Governor of the State of Mississippi 

and Chairman of the State Board of Election Com­
missioners; H eber L adner, as Secretary of State of 
the State of Mississippi and Secretary of the State 
Board of Election Commissioners and J oe T. P atter­
son, Attorney General of the State of Mississippi and 
member of the State Board of Election Commis­
sioners, Defendants

Complaint— Filed October 20, 1966

1. This action arises under the 14th and 15th Amend­
ments to the Constitution of the United 'States and the 
Voting Rights Act of 1965 (Title 42 U.S.C1. § 1973). It 
seeks to enjoin, as violative of the Constitution and laws 
of the United States, enforcement o f Chapter 613 of the 
Mississippi Laws of 1966 (House Bill No. 68) purporting 
to amend Section 3260, Mississippi Code of 1942, insofar 
as said Chapter 613 seeks to make more stringent the 
requirements for independent candidacy in the State of 
Mississippi.



3

2. The jurisdiction of this Court is founded on Title 
28 ILS.C. §§ 1331(a), 1343(3) and (4), 2201 and 2281, and 
on Title 42 U.S.C. §§ 1971(d), 1973(j)(f), 1981 and 1983. 
The matter in controversy exceeds the value of $10,000.00 
exclusive of interest and costs.

3. Plaintiffs bring this action on behalf of themselves 
and all other persons similarly situated pursuant to Rule 
23 FRCP. The persons constituting the class represented 
herein are so numerous as to make it impracticable to 
bring them all before the Court. Plaintiffs fairly insure 
the adequate representation of all. The character of the 
right sought to be enforced for the class is several; there 
are common questions of law and fact affecting the several 
rights, and a common relief is sought.

4. Plaintiffs are Negro citizens of the United States 
and the State of Mississippi and each is a qualified elector 
in the State of Mississippi. Plaintiff, Rev. Clifton Whitley, 
is in every respect qualified to be an independent candidate 
for the office of United States Senator from the State 
of Mississippi in the November 8, 1966 general election. 
He resides in Marshall County, Mississippi and on Septem­
ber 27, 1966, he filed a valid petition for said office with 
the Secretary of State of the State of Mississippi in ac­
cordance with law. His petition contained 3,540 signa­
tures, o f which 2,095 were certified as valid by the ap­
propriate county registrars. Plaintiff Dock Drummond 
is in every respect qualified to be an independent candidate 
for the office of Representative to the United States Con­
gress for the First Congressional District of Mississippi. 
He resides in Attala County, Mississippi and on September 
28, 1966, he filed a valid petition for said office with the 
Secretary of State of the State of Mississippi in accordance 
with law. His petition contained 537 signatures o f which 
449 were certified as valid by the appropriate county reg­
istrars. Plaintiff Emma Sanders is in every respect quali­
fied to be a candidate for the office of Representative to 
the United States Congress for the Third Congressional



4

District of Mississippi. She resides in Hinds County and 
on September 29, 1966, she filed a valid petition for said 
office with the iSecretary of -State of the State of Mississippi 
in accordance with law. Her petition contained 386 signa­
tures of which 218 were certified as valid by the appro­
priate county registrars.

5. Defendant Paul B. Johnson is the Governor of the 
State of Mississippi and Chairman of the -State Board of 
Election Commissioners, which Board has general overall 
responsibility for the conduct of all elections in the State 
of Mississippi.

Defendant Joe T. Patterson is the Attorney General of 
the State of Mississippi and a member of the State Board 
of Election Commissioners.

Defendant Heber Ladner is the Secretary of State of 
the State of Mississippi and Secretary of the State Board 
of Election Commissioners of the State of Mississippi.

6. On or about the 10th day of October, 1966 the de­
fendants, acting in their official capacities, rejected the 
petitions filed by the plaintiffs as aforesaid on the grounds 
that said petitions did not comply with the provisions of 
said Chapter 613, and more particularly, that the petitions 
of the plaintiffs -did not contain the number of -signa­
tures of qualified electors required by Section 3260 as 
it purported to have been amended by said Chapter 613. 
However, the defendants have admitted that each of the 
said petitions contained a sufficient number of valid signa­
tures to comply with the requirements of -Section 3260 if 
said Chapter 613 did not validly amend -Section 3260.

7. Section 3260, prior to its purported amendment by 
said Chapter 613 provided, inter alia, that a petition by 
an independent candidate for an office elected by the 
state at large was required to be signed by not less than 
1,000 qualified electors. Said law also provided that the 
petition of an independent candidate for an office elected



by the qualified electors of a congressional district must 
be signed by not less than 200 qualified electors. Said 
Chapter 613, which was passed in the Regular Session of 
the 1966 Mississippi Legislature and approved by the 
Governor on June 15, 1966, purported to change the afore­
said requirements of Section 3260 in material part as 
follows:

“ For an office elected by the State at large, not less 
than ten thousand (10,000) qualified electors; . . . 
for an office elected by the qualified electors of a con­
gressional district not less than two thousand (2,000) 
qualified electors. . . . ”

8. Nothing in Section 3260, before or after its purported 
Amendment by Chapter 613, prohibits a person from quali­
fying as an independent candidate in the general election, 
if he has participated as a candidate in a primary election.

9. Candidates for the offices of United -States Senator 
and United States House of Representatives from the 
State of Mississippi who are nominated by the regular 
Democratic and Republican parties of the State of Mis­
sissippi in their respective primaries need not file any 
petitions in order to run in the general election. The 
present nominees for the aforesaid respective offices by 
the regular Democratic and Republican parties are white. 
No Negro has been nominated by the regular political 
parties of the State of Mississippi for the aforesaid offices 
since prior to 1900.

10. The present members of the State Board of Election 
Commissioners are white and the past members since 
prior to 1900 have been white. White political supremacy 
has prevailed in the State of Mississippi during the entire 
history of the State.

11. (a) The population of the State of Mississippi, as 
appears from the 1960 census of the United States Gov-

5



6

eminent, consists of approximately 2,178,141 persons of 
whom 915,743 or 4!2% are members of the Negro race.

(b) Upon information and belief, so effective and com­
plete has been the program of disfranchisement of the 
Negro people of the State of Mississippi that as of Novem­
ber of 1964, the date of the last general election of federal 
elective officials, less than 7% of eligible Negroes were 
registered to vote in the State. Upon information and 
belief, at the same time, over 60% of the eligible whites 
were registered to vote in the State of Mississippi.

12. On numerous occasions in the past 10 years the 
United States District Courts in the State of Mississippi 
and the United States Court of Appeals for the Fifth 
Circuit have entered decrees and judgments based on 
findings of long-standing patterns and practices of racial 
discrimination in connection with voting in various counties 
of the State of Mississippi.

13. As of July 1, 1966, approximately 34% of the eligible 
Negroes were registered to vote in the State of Mississippi. 
Thus, for the first time in this century, a substantial pro­
portion of the Negro electorate is in a position to vote in 
a general election of federal elective officials.

14. The defendants acting pursuant to said Chapter 613, 
have refused to permit the plaintiffs to qualify and run for 
their respective offices in the general election for 1966.

15. The purpose and effect of the adoption of said 
Chapter 613 is to abridge, on account of race or color, the 
right of the plaintiffs to run as independent candidates in 
the November, 1966 general election and in elections there­
after, and further to abridge, on account of race or color, 
the right of Negroes in the State of Mississippi to vote 
for the candidates of their choice.

16. The State of Mississippi is one of the areas covered 
by the provisions and requirements of the Voting Eights 
Act of 1965. Neither the State of Mississippi nor any



7

of its officials or agents has instituted any action in the 
United States District Court for the District of Columbia 
for declaratory judgment that said Chapter 613 does not 
have the purpose and will not have the effect of denying 
or abridging the right to vote, on account of race or color; 
nor have they submitted said Chapter 613 to the Attorney 
General o f the United States in accordance with the 
requirements of Section 5 of the Voting Rights Act of 1965.

17. The said Chapter 613, and the eff ect given to it by the 
defendants, violates 42 U.S.O. § 1971(a), Section 5 of 
the Voting Rights Act of 196© and the 14th and 15th Amend­
ments to the Constitution of the United States.

18. The further effect of said Chapter 613 is to “ freeze”  
Negroes out of the electorate and therefore violates the 
15th Amendment to the United States Constitution.

19. The purpose and effect of said Chapter 613 is to 
perpetuate the white political supremacy that has prevailed 
in the (State of Mississippi since prior to 1900.

20. Unless restrained by order of this Court, defendants 
will continue to give effect to said Chapter 613 and will fail 
and refuse to accept the qualified petitions of the plaintiffs 
for the forthcoming general election on November 8, 1966, 
and the plaintiffs will be irreparably injured.

21. Plaintiffs have no plain, adequate or complete remedy 
at law to redress the wrongs alleged herein, and this suit 
for a preliminary and permanent injunction is their only 
means of securing adequate relief.

W herefore, plaintiffs pray:
1. That pursuant to the provisions of 28 U.S.C. § 2281, 

a district court of three judges be convened in accordance 
with the procedures set forth in 28 U.S.C. § 2284;

2. That this Court adjudge and declare said Chapter 
613 to be in violation of 42 U.S.C. § 1971(a), Section 5 of 
the Voting Rights Act of 1965 and the 14th and 15th 
Amendments to the Constitution of the United States;



8

3. That this Court issue a preliminary and permanent 
injunction enjoining the defendants, their agents, em­
ployees, successors and all persons in active concert and 
participation with them from:

(a) enforcing or otherwise giving any legal effect 
to Chapter 613;

(b) failing or refusing to accept the petition as 
independent candidates, of the plaintiffs, and all 
others similarly situated for their respective offices in 
the November 8, 1966 general election;

(c) failing or refusing to include the names of the 
plaintiffs, and all other similarly situated as candidates 
who qualify on the official ballots for said general 
election on November 8, 1966.

4. That pending the hearing and determination of the 
complaint herein and the request for relief thereunder, a 
temporary injunction issue enjoining and restricting the 
defendants, each of them, their agents, representatives and 
attorneys, and all others acting in concert with them from 
proceeding in any way with or from holding the general 
elections now scheduled for November 8, 1966;

5. That this Court grant such additional relief as justice 
may require together with the costs and disbursements of 
this action.

Respectfully submitted,
s /  R. Jess B eowst 

R. Jess Brown 
Alvin J. Bronstein 
Malcolm Farmer III 

Lawyers Constitutional 
Defense Committee 

603 N. Farish St.
Jackson, Mississippi

Of Counsel: Attorneys for Plaintiffs
J ohn L. Saltonstalu, Je.



9

m  THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF MISSISSIPPI 

JACKSON DIVISION

Civil A ction No. 4025

E ev. Clifton W hitley, et al., Plaintiffs, 

v.
P aul B. J ohnson, e,t al., Defendants.

Answer of Defendants-—Filed October 26, 1986

The Defendants, Paul B. Johnson, Governor of the State 
of Mississippi and Chairman of the State Board of Election 
Commissioners; Heber Ladner, Secretary of State of 
Mississippi and Secretary of the State Board of Election 
Commissioners; and Joe T. Patterson, Attorney General 
of Mississippi and a member of the Board of Election Com­
missioners, by their attorney, file herewith their answer 
to the Complaint filed against them in this action:

F irst Defense

Defendants deny that this Court has jurisdiction of the 
parties or the subject matter of this action.

Second Defense

Defendants deny the allegations of Paragraph 1 and 2 of 
the Complaint.

Defendants deny that persons constituting the class pur­
port to be represented by Plaintiffs are so numerous as 
to make it impracticable to bring them all before the Court. 
The named Plaintiffs constitute the entire class.

Defendants admit that Plaintiffs are Negro citizens of 
the United States and the State of Mississippi, and that 
each is a qualified elector in the State of Mississippi. They 
deny that Plaintiff Whitley is in every respect qualified to



10

be an independent candidate for the office of United States 
Senator from the State of Mississippi in the November 8, 
1966 general election. They admit that he resides in Mar­
shall County, Mississippi, and that on September 27, 1966, 
he filed a petition with the Secretary of State to have his 
name printed on the ballot as a candidate for United States 
Senator. They admit that his petition contained 3,540 
signatures of which 2,055 were certified by county regis­
trars as being qualified electors in Mississippi. They deny 
that his petition was a valid petition. They deny that 
Dock Drummond is in every respect qualified to be an inde­
pendent candidate for the office of Representative to The 
United States Congress from the First Congressional Dis­
trict of Mississippi. They admit that he resides in Attala 
County, Mississippi; that on September 28, 1966, he filed 
a petition with the Secretary of State seeking to have his 
name placed on the ballot in the November 8, 1966 general 
election as an independent candidate for Congress. They 
admit that his Petition contained 537 signatures and that 
445 names appearing thereon were certified by county 
registrars as being qualified electors. They deny that his 
petition was a valid petition in accordance with law. De­
fendants deny that Plaintiff Sanders is in every respect 
qualified to be a candidate for the office of Representative 
of The United States Congress from the Third Congres­
sional District of Mississippi. They admit that she resides 
in Hinds County and that on September 29, 1966, she filed 
a petition with the office of the Secretary of State seeking 
to have her name placed on the ballot as a candidate for 
Congress. They admit that this petition contained 386 
names and that 218 of these names were certified by the 
registrar of Hinds County as being qualified electors. They 
deny that her petition was a valid petition in accordance 
with law.

Defendants admit the allegations of Paragraph 5 of the 
Complaint, except that they deny that the State Board of 
Election Commissioners has the general over-all responsi­
bility for the conduct of all the elections in the State of 
Mississippi.



11

Defendants admit that on or about the 10th day of Oc­
tober, 1966, the Defendants, acting in their official capaci­
ties, rejected the petitions filed by Plaintiffs, but deny that 
the sole and only grounds were that the same did not com­
ply with the provisions of Section 3260 as amended by 
Chapter 613 of the Laws of 1966 of the regular session of 
the Mississippi Legislature. They would show unto the 
Court that the petitions of Plaintiffs Whitley and Drum­
mond were also rejected because they each had been candi­
dates in the Democratic Primary Election held on .Time 7, 
1966, for the same offices and were defeated in that pri­
mary election.

Defendants admit the allegations of Paragraph 7 of the 
Complaint.

Defendants deny the allegations of Paragraph 8 of the 
Complaint, and allege that the Supreme Court of Missis­
sippi, interpreting Section 3260, when read in conjunction 
with other sections governing elections, has declared that 
any person running as a candidate in a primary election 
and defeated in that election may not thereafter have 
his name placed on the ballot as an independent candidate 
for that same office by petition.

Defendants admit the allegations of Paragraph 9 of the 
Complaint.

Defendants admit that the present members of the State 
Board of Election Commissioners are White and that past 
members, since sometime prior to 1900', have been White. 
They deny that White political supremacy has prevailed 
in Mississippi during the entire history of the State of 
Mississippi.

Defendants are without information sufficient to form 
a belief as to the truth of the averment of Paragraph 11 
of the Complaint, but allege that the official census of 1960 
taken by the United States Government speaks for itself. 
They are without information sufficient to form a belief as 
to the truth of the averment of Paragraph 11(b) of the 
Complaint.



12

Defendants admit that during the past several years, 
judgments have been entered in the District Courts of The 
United States in Mississippi and in the Court of Appeals 
for the Fifth Circuit granting injunctions against certain 
county registrars upon findings of discrimination in ac­
cordance with a pattern or practice.

Defendants are without information sufficient to form a 
belief as to the truth of the averments of Paragraph 13 of 
the Complaint.

Defendants admit that acting pursuant to Section 3260 
of the Mississippi Code as amended and for other reasons, 
Defendants have refused to place the names of the named 
Plaintiffs on the ballot for the general election of November 
8, 1966, as independent candidates for the offices they seek.

Defendants deny the allegations of Paragraph 15 of the 
Complaint.

Defendants admit the allegations of Paragraph 16 of 
the Complaint, but deny that Section 3260, as amended, is 
such as requires the institution of any action in the United 
States District Court for the District of Columbia under 
Section 5 of the Voting Eights Act of 1965.

Defendants deny the allegation of Paragraph 17 of the 
Complaint.

Defendants deny the allegations of Paragraph 18 of the 
Complaint.

Defendants deny the allegations of Paragraph 19 of the 
Complaint.

Defendants admit that they will continue to give effect 
to Section 3260 as amended by Chapter 613 of the Laws 
of 1966, but deny that Plaintiffs will be irreparably injured.

Defendants deny that Plaintiffs have no plain, adequate 
or complete remedy at law to redress their alleged wrongs 
and allege that they do have a remedy in the State Courts 
of Mississippi.



13

T hird Defense

Defendants allege that the time for election of the State 
Senators and Representatives from Mississippi to the 
United States Congress is fixed by Federal statute, Title 2, 
■Section 1 and 7 of the United States Code and that this 
Court is without jurisdiction, or, in the alternative, that 
it would be inappropriate for this Court to enjoin the hold­
ing of the general elections now scheduled for November 8 
1966, in the absence of an opportunity for The United 
States, acting through the Department of Justice, to appear 
as a Defendant in this action.

F ourth D efense

Defendants allege that this action falls in the category 
covered by Title 28, Section 1344, and being limited to an 
election for United States Senator and Representative in 
Congress, this Court is without jurisdiction to grant the 
relief sought by Plaintiffs.

P aul B. J ohnson, Governor of the 
State of Mississsippi,

H eber L adner, Secretary o f State of 
Mississippi,

J oe T. Patterson, Attorney General 
of the State of Mississippi

Defendants
J oe T. P atterson, Attorney General 

of the State of Mississippi,
W ill S. W ells, Assistant Attorney 

General of the State of Mississippi
Attorneys for Defendants

By: W ill S. W ells 
Will S. Wells

Of Counsel for Defendants

(Certificate of Service omitted in printing)



14

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OP MISSISSIPPI 

JACKSON DIVISION

Civil Action No. 4025

C l i f t o n  W h i t l e y , e t  a l ., Plaintiffs, 
v.

P a u l  B. J o h n s o n , G o v e r n o r  o p  M is s is s ip p i , e t  a l .,

Defendants.

Opinion of the District Court— Filed October 26, 1966

The plaintiffs in this case are three negro citizens of 
Mississippi who seek injunctive relief against the defend­
ants as the Board of Election Commissioners of Mississippi 
to restrain their application and use of House Bill 68, 
Mississippi Laws 1966 to these plaintiffs to prevent them 
from appearing on the ballot as candidates for the office 
of United States Senator and United States House of Rep­
resentatives in the general election on November 8, 1966. 
It is contended that this legislative enactment is violative 
of § 5 of the Civil Rights Act of 1965 and that the Fifteenth 
Amendment rights of these plaintiffs will be violated by a 
refusal to place their names as candidates on such ballot. 
The defendants declined to place the names of these pro­
posed candidates on such ballot because two of them had 
run and had been defeated as Democratic candidates for 
such offices in the June 1966 primary election in Mississippi 
and that they were thus disqualified to run again as inde­
pendent candidates for the same office at the succeeding 
general election. The defendants likewise refused to place 
the names of the plaintiffs on the ballot at the coming 
November 1966 general election because their petitions or 
applications to the Board of Election Commissioners did 
not contain the requisite number of signatures of qualified 
electors under House Bill 68, Mississippi Laws 1966 to en­
title them to a place on said ballot.



15

F inding op F acts

This case was presented to the Court on the pleadings, 
affidavit of one witness and documentary evidence in sup­
port of this application by the plaintiffs for an interlocu­
tory or temporary injunction. ’The plaintiffs’ application 
to the Board o f Election Commissioners contained the sig­
natures of the requisite number of qualified electors to 
entitle each of the plaintiffs to have his and her name 
placed on the ballot as a candidate for the office of United 
States Senator and as candidates for the office of United 
States House of Representatives under the requirements of 
§ 3260, prior to the passage of House Bill 68, Mississippi 
Laws 1966. No adjudication was sought or obtained as to 
whether or not said House Bill 68, Mississippi Laws 1966 
denied or abridged any right to vote on account of race 
or color as provided by 42 U.S.C.A. § 1973c. This suit 
has been expeditiously processed and heard on the eve of 
such general election as quickly as was reasonably possible 
under existing circumstances and conditions. This is an 
extremely important suit to all parties affected and con­
cerned and involves some very far reaching and intricate 
and complicated questions of law and fact which should 
not be resolved in haste at the risk of impinging upon im­
portant rights of all parties in this case. It appears to 
this Court that the granting of the relief herein awarded 
would not be as hurtful to the ultimate rights of the de­
fendants as a denial of such relief would be hurtful to the 
ultimate rights of the plaintiffs if a contrary conclusion 
were ultimately reached.

Conclusions or L aw

This Court has full equity jurisdiction of this suit under 
42 U.S.C.A. § 1978c. The Court has the power to fashion 
its judgment to effectually suspend the application of 
H ouse B ill 68, Mississippi Laws 1966 as to these plaintiffs 
in an effort to avoid undue harm and injury to either party 
to this suit; and to order the defendants to forthwith place



16

the names of the plaintiffs as candidates for said national 
offices on the ballot to be used by the electors at the No­
vember 8, 1966 general election in Mississippi without re­
gard to said House Bill 68, Mississippi Laws 1966; and the 
defendants will be ordered and directed to activate and 
implement such order of this Court to the end that all 
qualified electors may have an opportunity to cast their 
vote for the plaintiffs as candidates for said offices at said 
election if they wish to vote for them therefor. The judg­
ment of the Court incorporating this per curiam opinion 
by reference thereto may be presented to and signed by 
any one of the judges of this Court as the order of the 
entire Court. An order accordingly may be presented.

s /  R obert A. A insworth, J r.
United States Circuit Judge

s /  H arold C ox

United States District Judge

October 26, 1966

s /  D an M. R tjssiell, J r.
United States District Judge

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF MISSISSIPPI 

JACKSON DIVISION

Civil Action No. 4025 
Clifton W hitley, et al., Plaintiffs, 

v.
P aul B. J ohnson, Governor of M ississippi, et al.,

Defendants.

Order Granting Temporary Injunction— Filed October 27, 1966

Pursuant to findings and conclusions herein dated October 
26, 1966, and made a part hereof by reference thereto;

I t I s Ordered, A djudged and Decreed by the Court: That 
the defendants, as members of the State Board of Election



17

Commissioners of tlie State of Mississippi, are ordered 
and directed to place on the ballot to be used at the general 
election in the State of Mississippi on November 8, 1966, 
the name of Clifton Whitley as an independent candidate 
for the office of United States Senator, Dock Drummond 
as an independent candidate for the office of United States 
Representative for the First Congressional District of 
Mississippi and Emma Sanders as an independent candi­
date for the office of United States Representative for the 
Third Congressional District of Mississippi, upon said 
plaintiffs posting a bond herein in the penalty of five hun­
dred dollars, conditioned according to law to be approved 
by the Clerk of this Court. No process need issue pur­
suant to ths order, but after said bond is posted and ap­
proved, an attested copy of this order shall be served by 
the United States Marshal upon the Attorney General of 
Mississippi as counsel for the defendants as due and suffi­
cient notice hereof.

Ordered, A djudged and Decreed, this October 27, A.D., 
1966.

Haroud Cox
United States District Judge

(Jurat omitted in printing)

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OR MISSISSIPPI 

JACKSON DIVISION

Civil Action No. 4025 
Clifton W hitley, et al., Plaintiffs 

v.
P aul B. J ohnson, et al., Defendants 

Motion for Interlocutory Injunction— Filed October 13, 1967

Upon the pleadings and stipulation filed herein and the 
affidavits attached hereto, the plaintiffs move this honorable 
Court for an interlocutory injunction enjoining the de­



18

fendants, their agents, employees, representatives, succes­
sors, appointees and all persons acting in concert with 
them, pending the final hearing and determination of this 
action from :

(1) enforcing or otherwise giving any legal effect to 
House Bill 68 of the Mississippi Laws of 1966', purporting 
to amend Section 3260, Mississippi Code of 1942;

(2) failing or refusing to accept the petitions as Inde­
pendent candidates, of Rev. Sammy Rash, Philip McKinney, 
Dan Lofton Mason, L. C. Leach, Rev. J. L. Brown, Johnnie 
Ross, John Daniel Wesley, George Raymond, Bennie L. 
Thompson, Ellis Saddler, Floyd Moore, H. L. Gray Sr., 
Hubert McDonald, Rev. L. >0. Coleman, Mrs. Fannie Lou 
Hamer, and Harold T. Magee, all being members of the 
class of plaintiffs, and all others similarly situated, for 
their respective intended offices in the November 7, 1967 
general election;

(3) failing or refusing to include the names of the 
above mentioned class plaintiffs, and all others similarly 
situated, as candidates who qualify on the official ballots 
for said general election on November 7, 1967;

(4) in the alternative, proceeding in any way with or 
from holding the general elections now scheduled for No­
vember 7, 1967 until the plaintiffs’ request for other relief 
as stated above is heard and determined.

Plaintiffs further move this honorable Court:
(5) to convene for the purpose of hearing and deter­

mining this application for an interlocutory injunction, a 
court of three judges in accordance with the provisions of 
Title 28 U.S.C. § 2284, on the grounds that:

(a) unless enjoined by this honorable Court, the de­
fendants will perform or fail to perform as the case 
may be, the acts referred to above, and



19

(b) such action by the defendants will result in ir­
reparable injury, loss and damage to the plaintiffs as 
more particularly appears in the verified complaint, 
stipulation and affidavits attached hereto.

Respectfully submitted,
A lvin J. Bronstein 
Alvin J. Bronstein 

'603 N. Farish St.
Jackson, Mississippi 
Attorney for Plaintiffs

[ Certificate of service omitted in printing]

State of Mississippi 
County of Bolivar

AFFIDAVIT
Rev. Sammy Rash being duly sworn deposes and says:
1. That I am a Negro citizen of Bolivar County, 

Mississippi ;
2. That I attempted to qualify as an Independent can­

didate for the office of State Representative in District 16, 
Post 2, Bolivar County in the November 1967 general 
election by filing a petition with the Bolivar County Elec­
tion Commission;

3. I was thereafter advised by the Bolivar County Elec­
tion Commission that I had been disqualified or challenged 
because I failed to list the Post number on my petition 
although same appeared on the subversive affidavit that 
I was required to file, and that my name would not be 
placed on the ballot in the November 7, 1967 general 
election;

4. I am informed and believe that my petition would have 
been proper and in compliance with Section 3260 of the



20

Mississippi Code of 1942 prior to its amendment in 1966 
or that I would have had sufficient time under the old 
law to correct my petition if it was necessary.

R ev. Sammie R ash

Sworn to and subscribed before me 
this 9 day of October, 1967.

T homas H. Moore 
Notary Public

My commission expires: August 8,1970

State of Mississippi 
County of Madison

AFFIDAVIT
George Raymond, Jr., being duly sworn deposes and 

says:
1. That I am a Negro citizen of Madison County, 

Mississippi;
2. That I attempted to qualify as an Independent can­

didate for the office of iState Representative, District 29, 
Madison County, Post 1 in the November 1967 general 
election by filing a petition with the Madison County 
Election Commission;

3. That I was thereafter advised by the Madison County 
Election Commission that I had been disqualified or chal­
lenged because my petition contained insufficient signa­
tures, some of the signatures did not list the precincts and 
all of the signatures were not signed personally by the 
electors, and that my name would not be placed on the ballot 
in the November 7,1967 general election.

4. I am informed and believe that my petition would 
have been proper and in compliance with Section 3260



21

of the Mississippi Code of 1942, prior to its amendment in 
1966.

George R aymond, Jr.

Sworn to and subscribed before me 
this 9th day of October, 1967.

H. A. J ones 
Notary Public

My commission expires: March 11,1968

State of Mississippi 
County of Pike

AFFIDAVIT
Harold T. Magee, being duly sworn, deposes and says:
1. That I am a Negro citizen of Pike County, Mississippi;
2. That I attempted to qualify as an Independent can­

didate for the office of Constable, Beat 1, Pike County, in 
the November 1967 general election by filing a petition 
with the Pike County Election Commission;

3. I was thereafter advised by the Pike County Election 
Commission that I had been disqualified or challenged 
because I had voted in the August 1967 Democratic Pri­
mary and that my name would not be placed on the ballot 
in the November 7,1967 general election.

4. I am informed and believe that my petition would 
have been proper and in compliance with Section 3260 of 
the Mississippi Code of 1942, prior to its amendment in 
1966.

Harold T. Magee

Sworn to and subscribed before me 
this 7 day of October, 1967.

J ohn M. M cC ray, S r.
Notary Public

My commission expires: June 23rd 1969



22

State of Mississippi
County of Hinds

L. C. Leach, being duly sworn, deposes and says:
1. That I am a Negro citizen of Hinds County, 

Mississippi;
2. That I attempted to qualify as an Independent can­

didate for the office of Justice of the Peace, Beat 2, Post 
1, Hinds County, in the November 1967 general election 
by filing a petition with the Hinds County Election 
Commission;

3. I was thereafter advised by the Hinds County Elec­
tion Commission that I had been disqualified or challenged 
because I had voted in the August 1967 Democratic Pri­
mary and that my name would not be placed on the ballot 
in the November 7,1967 general election.

4. I am informed and believe that my petition would 
have been proper and in compliance with Section 3260 of 
the Mississippi Code of 1942, prior to its amendment in 
1966.

L. 0 . L each

Sworn to and subscribed before me 
this 9 day of October 1967.

Sarah H abvey S tevens 
Notary Public

AFFIDAVIT

My Commission Expires May 9, 1970.



State of Mississippi
County of Quitman

23

Rev. L. C. Coleman being duly sworn deposes and says:
1. That I am a Negro citizen of Quitman County, 

Mississippi;
2. That I attempted to qualify as an Independent can­

didate for the office of Supervisor, Beat 3, Quitman 
County, in the November 1967 general election by deliver­
ing my petition to the Circuit Clerk of Quitman County 
to have him certify the signatures.

3. That I was thereafter advised by the Circuit Clerk 
of Quitman County that I did not have to file a petition 
with anyone in order to run as an Independent candidate 
and I therefore did not file my petition with the Quitman 
County Election Commission prior to the cutoff date and 
I am advised that my name will not be placed on the 
ballot in the November 7, 1967 general election;

4. I am informed and believe that I would have had 
sufficient time to file my petition in accordance with Sec­
tion 3260 of the Mississippi Code of 1942, prior to its 
amendment in 1966, after I learned that the information 
given me by the Circuit Clerk was incorrect.

AFFIDAVIT

R ev. L. C. Coleman

Sworn to and subscribed before me 
this 9 day of October, 1967.

Marie W . E avenson, Circuit Clerk 
Notary Public

My commission expires: January 1,1967



24

Hubert McDonald, being duly sworn deposes and says:
1. That I am a Negro citizen of Madison County, Missis­

sippi ;
2. That I attempted to qualify as an Independent candi­

date for the office of Constable, Beat 3, Post 2, Madison 
County, in the November 1967 general election by filing a 
petition with the Madison County Election Commission;

3. That I was thereafter advised by the Madison County 
Election Commission that I had been disqualified or chal­
lenged because my petition contained insufficient signa­
tures, some of the signatures did not list the precincts and 
all of the signatures were not signed personally by the 
electors, and that my name would not be placed on the 
ballot in the November 7, 1967 general election.

4. I am informed and believe that my petition would have 
been proper and in compliance with Section 3260 of the 
Mississippi Code of 1942, prior to its amendment in 1966.

H ubert McD onald

Sworn to and subscribed before me 
this 7th day of October, 1967.

Sabah H arvey Stevens 
Notary Public

State of Mississippi
County of Hinds

AFFIDAVIT

My commission expires: May 9, 1970



State of Mississippi
County of Hinds

25

Dan Lofton Mason, being duly sworn, deposes and says:
1. That I am a Negro citizen of Hinds County, Missis­

sippi;
2. That I attempted to qualify as an Independent candi­

date for the office of Supervisor, Beat 2, Hinds County, in 
the November 1967 general election by filing a petition 
with the Hinds County Election Commission;

3. I was thereafter advised by the Hinds County Election 
Commission that I had been disqualified or challenged be­
cause I had voted in the August 1967 Democratic Primary 
and that my name would not be placed on the ballot in the 
November 7, 1967 general election.

4. I  a,m informed and believe that my petition would 
have been proper and in compliance with Section 3260 of 
the Mississippi Code of 1942, prior to its amendment in 
1966.

Dan L ofton Mason

Sworn to and subscribed before me 
this 7th day of October, 1967.

Sarah H arvey Stevens 
Notary Public

AFFIDAVIT

My commission expires: May 9, 1970



26

Bennie L. Thompson, being duly sworn deposes and says:
1. That I am a Negro citizen of Madison County, Missis­

sippi ;
2. That I attempted to qualify as an Independent candi­

date for the office of Supervisor, Beat 3, Madison County, 
in the November 1967 general election by filing a petition 
with the Madison County Election Commission;

3. That I was thereafter advised by the Madison County 
Election Commission that I had been disqualified or chal­
lenged because my petition contained insufficient signatures, 
some of the signatures did not list the precincts and all of 
the signatures were not signed personally by the electors, 
and that my name would not be placed on the ballot in the 
November 7, 1967 general election.

2. I am informed and believe that my petition would 
have been proper and in compliance with Section 3260 of 
the Mississippi Code of 1942, prior to its amendment in 
1966.

B ennie L. T hompson

Sworn to and subscribed before me 
this 7th day of October, 1967.

Sabah H abvey Stevens 
Notary Public

State of Mississippi
County of Hinds

AFFIDAVIT

My commission expires: May 9, 1970



27

Floyd Moore, being duly sworn deposes and says:
1. That I am a Negro citizen of Madison County, Missis­

sippi ;
2. That I attempted to qualify as an Independent candi­

date for the office of Justice of the Peace, Beat 3, Post 2, 
Madison County, in the November 1967 general election by 
filing a petition with the Madison County Election Commis­
sion;

3. That I was thereafter advised by the Madison County 
Election Commission that I had been disqualified or chal­
lenged because my petition contained insufficient signa­
tures, isome of the signatures did not list the precincts and 
all of the signatures were not signed personally by the 
electors, and that my name would not be placed on the 
ballot in the November 7, 1967 general election.

4. I am informed and believe that my petition would 
have been proper and in compliance with Section 3260 of 
the Mississippi Code of 1942, prior to its amendment in 
1966.

F loyd Moore

Sworn to and subscribed before me 
this 13th day of October, 1967.

S arah H arvey Stevens 
Notary Public

State of Mississippi
County of Hinds

AFFIDAVIT

My commission expires: May 9, 1970



State of Mississippi
County of Hinds

28

AFFIDAVIT

Johnnie Ross, being duly sworn, deposes and says:

1. That I am a Negro citizen of Hinds County, Missis­
sippi;

2. That I attempted to qualify as an Independent candi­
date for tbe office of Justice of the Peace, Beat 3, Hinds 
County, in tbe November 1967 general election by filing a 
petition with tbe Hinds County Election Commission;

3. I was thereafter advised by the Hinds County Election 
Commission that I bad been disqualified or challenged be­
cause I bad voted in the August 1967 Democratic Primary 
and that my name would not be placed on tbe ballot in the 
November 7, 1967 general election.

4. I am informed and believe that my petition would 
have been proper and in compliance with Section 3260 of 
the Mississippi Code of 1942, prior to its amendment in 
1966.

J ohnny Ross

Sworn to and subscribed before me 
this 13th day of October, 1967.

Sarah Harvey Stevens 
Notary Public

My commission expires: May 9,1970



29

AFFIDAVIT
Bev. J. L. Brown, being duly sworn, deposes and says:
1. That I am a Negro citizen of Hinds County, Missis­

sippi;
2. That I attempted to qualify as an Independent candi­

date for the office of Supervisor, Beat 3, Hinds County, in 
the November 1967 general election by filing a petition 
with the Hinds County Election Commission;

3. I was thereafter advised by the Hinds County Election 
Commission that I had been disqualified or challenged be­
cause I had voted in the August 1967 Democratic Primary 
and that my name would not be placed on the ballot in the 
November 7, 1967 general election.

4. I am informed and believe that my petition would 
have been proper and in compliance with Section 3260 of 
the Mississippi Code of 1942, prior to its amendment in 
1966.

B ev. J. L. B rown

Sworn to and subscribed before me 
this 13 day of October, 1967.

Sarah H arvey Stevens 
Notary Public

State of Mississippi
County of Hinds

My commission expires: May 9, 1970



30

AFFIDAVIT
H. L. Gray, Sr., being duly sworn deposes and says:
I. That I am a Negro citizen of Madison County, Missis­

sippi;
2. That I attempted to qualify as an Independent candi­

date for the office of Constable, Beat 3, Post 1, Madison 
County, in the November 1967 general election by filing a 
petition with the Madison County Election Commission;

3. That I was thereafter advised by the Madison County 
Election Commission that I had been disqualified or chal­
lenged because my petition contained insufficient signa­
tures, some of the signatures did not list the precincts and 
all of the signatures were not signed personally by the 
electors, and that my name would not be placed on the 
ballot in the November 7, 1967 general election.

4. I am informed and believe that my petition would have 
been proper and in compliance with Section 3260 of the 
Mississippi Code of 1942, prior to its amendment in 1966.

H. L. Gray, Sr.

Sworn to and subscribed before me 
this 13 day of October, 1967.

Sarah H arvey Stevens 
Notary Public

State of Mississippi
County of Hinds

My commission expires: May 9, 1970



31

Ellis Saddler, being duly sworn deposes and says:
1. That I am a Negro citizen of Madison County, Missis­

sippi ;
2. That I attempted to qualify as an Independent candi­

date for the office of Justice of the Peace, Beat 3, Post 1, 
Madison County in the November 1967 general election by 
filing a petition with the Madison County Election Com­
mission ;

3. That I was thereafter advised by the Madison County 
Election Commission that I had been disqualified or chal­
lenged because my petition contained insufficient signatures, 
some of the signatures did not list the precincts and all of 
the signatures were not signed personally by the electors, 
and that my name would not be placed on the ballot in the 
November 7, 1967 general election.

4. I am informed and believe that my petition would have 
been proper and in compliance with Section 3260 of the 
Mississsippi Code of 1942, prior to its amendment in 1966.

E llis Saddler

Sworn to and subscribed before me 
this 13 day of October, 1967.

Sarah H arvey Stevens 
Notary Public

My commission expires: May 9, 1970

State of Mississippi
County of Hinds

AFFIDAVIT



32

Alvin J. Bronstein being duly sworn deposes and says:
1. That I am a member of tbe bar of this Court and tbe 

attorney of record for tbe plaintiffs in this action.
2. That I recite all tbe foregoing facts upon information 

and belief:
a. Tbat John Daniel Wesley is a Negro citizen of Holmes 

County, Mississippi; tbat be attempted to qualify as an 
Independent candidate for tbe office of Justice of tbe Peace, 
Beat 5, Holmes County in tbe November 1967 general elec­
tion by filing a petition with tbe Holmes County Election 
Commission; that be has been advised tbat he may be dis­
qualified because he voted in the August 1967 Democratic 
Primary and that his name may not be placed on the ballot 
in the November 7, 1967 general election;

b. That Mrs. Fannie Lou Hamer is a Negro citizen of 
Sunflower County, Mississippi; that she attempted to quali­
fy as an Independent candidate for the office of State 
Senator, District 17, Sunflower County, in the November 
1967 general election by filing a petition with the Sun­
flower County Election Commission; that she has been ad­
vised that she has been disqualified by said election com­
mission because she voted in the August 1967 Democratic 
Primary and that her name will not be placed on the ballot 
in the November 7, 1967 general election.

c. That Philip McKinney is a Negro citizen of DeSoto 
County, Mississippi; that he attempted to qualify as an 
independent candidate for the office of Supervisor, Beat 4, 
DeSoto County in the November 1967 general election by 
filing a petition with the DeSoto County Election Commis­
sion; that he was advised that bis petition was filed too late 
and tbat his name would not be listed on the ballot in the 
November 7, 1967 general election.

State of Mississippi
County of Hinds

AFFIDAVIT



33

3. That I am informed and believe that each of the above 
petitions would have been proper and in compliance with 
Section 3260, Mississippi Code of 1942, prior to its amend­
ment in 1966.

A lvin J. B ronstein

Sworn to and subscribed before me 
this 13th day of October, 1967.

Sarah H arvey Stevens 
Notary Public

My commission expires: May 9, 1970

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OP MISSISSIPPI 

JACKSON DIVISION

Civil Action No. 402:5 
Clifton W hitley, et al., Plaintiffs 

versus
P aul B. J ohnson, Grovernor of the State of Mississippi, 

et al., Defendants
Opinion of the District Court—Filed October 27, 1967

Before A insworth, Circuit Judge, and Cox and R ussell, 
District Judges.
B y  the Court :

The parties to this suit have stipulated: “ That the only 
issue before the Court at this time is whether or not House 
Bill 68, Mississippi Laws 1966, whch amended Seoton 3260 
of the Mississippi Code of 1942, is an attempt by the State 
of Mississippi to enact or seek to administer any voting 
qualification or prerequisite to voting, or standard, practice 
or procedure with respect to voting different from that in



34

force or effect on 'November 1,1964; (language of 42 U.S.C. 
1973c).”  (See Stipulation, dated September 25, 1967, at­
tached as Appendix A .)

This complaint was filed on October 20, 1966 by three 
named plaintiffs, Reverend Clifton Whitley, Dock Drum­
mond and Emma Sanders, on behalf of themselves and all 
other persons similarly situated, as a class action pursuant 
to Rule 23, Federal Rules of Civil Procedure. In the com­
plaint plaintiffs prayed that this Court adjudge and declare 
House Bill 68, Mississsippi Laws 1966 (sometimes referred 
to as Chapter 613 of the Mississippi Laws of 1966), which 
amended Section 3260 of the Mississippi Code of 1942, to be 
in violation of Section 5 of the Voting Rights Act of 1965 
and the Fourteenth and Fifteenth Amendments of the 
United States Constitution; that a preliminary and perma­
nent injunction issue enjoining defendants from enforcing 
Chapter 613, from failing to accept the petitions of the 
named plaintiffs as independent candidates in the Novem­
ber 8, 1966 Mississippi general election, and from failing or 
refusing to include the names of plaintiffs, and all others 
similarly situated, as candidates who qualify on the official 
ballots for the November 8, 1966 general election.

A three-judge District Court was requested and there­
after convened for a hearing at Biloxi, Mississippi, on Octo­
ber 26, 1966. The Court, under its full equity jurisdiction, 
suspended the application of House Bill 68, Mississippi 
Laws 1966, and ordered that the names of the plaintiffs who 
were candidates for national office be placed on the ballot to 
be used by the electors at the general election in Missis­
sippi on November 8, 1966. The Court did not pass on the 
question whether House Bill 68 denies or abridges any right 
to vote on account of race or color as provided by 42 U.S.C. 
§ 1973c.

Subsequently, counsel for complainants requested that we 
set this case for hearing on the merits, and a Stipulation 
was entered into September 25, 1967 between counsel for



35

complainants and defendants which, has been filed here­
with in the record and is submitted to eliminate the need 
for further hearings in this case.1 Plaintiffs submitted their 
brief on October 6, 1967 and defendants’ reply brief was 
received on October 18, 1067. Plaintiffs seek a prompt de­
cision on behalf of the class of plaintiffs who have at­
tempted to qualify and run as independent candidates in the 
impending Mississippi general election on November 7, 
1967. The matter, therefore, is before us on the merits for 
final decision.

House Bill 68, Mississsippi Laws 1966, amended the exist­
ing Mississippi law by making four changes from the orig­
inal statute as follows: (1) No person who has voted in a 
primary election may thereafter be placed on the ballot 
as an independent candidate in the general election; (2) 
the numbers of signatures of qualified electors needed on 
the petition of an independent candidate have been in­
creased; (3) each qualified elector must personally sign 
the petition for an independent candidate and include his 
polling precinct and county; and (4) the time for filing as 
an independent candidate is substantially earlier. All such 
amendatory sections apply equally to white and Negro 
candidates.2

According to the Stipulation, it is clear that the State of 
Mississippi is a State with respect to which the prohibi­
tions set forth in 42 U.S.CI § 1973b (a) (Voting Rights Act 
of 1965) are in effect and is, therefore, subject to the pro­
visions of 42 U.S.O. § 1973c (Section 5, Voting Rights Act of 
1965) and that said State was affected by the aforesaid pro­
visions on June 11, 1966 (when House Bill 68, Mississippi

1 See letter dated September 25, 1967 to counsel for plaintiffs to the mem­
bers of this Court reproduced as Appendix B.

2 In 1927, the Supreme Court of Mississippi interpreted this statute which 
was then Section 3717, Mississippi Code o f 1906, in Ruhr v. Cowan, 112 So. 
386. After amendments, the statute became Section 3260, Mississippi Code of 
1942. Following a ruling o f the Court in B ow en  v. W illiam s, 117 So. 2d 710, 
the 1966 amendment followed.



36

Laws 1966, was enacted) and continuously to this date. It 
is also true that the State of Mississippi in enacting House 
Bill 68, Mississippi Laws 1966, did not comply with the 
provisions of 42 U.S.C. § 1973c (Section 5, Voting Rights 
Act of 1965) in that it did not submit said statute either to 
the United States District Court for the District of Colum­
bia for a declaratory judgment, that such enactment does 
not have the purpose and will not deny or abridge the right 
to vote on account of race or color, or to the Attorney Gen­
eral of the United States for his approval or objection. The 
Court notes that 42 U.S.C. § 1973c (Section 5, Voting Rights 
Act of 1965) is concerned with enactments by a state with 
respect to which the prohibitions set forth in § 1973b(a) 
are in effect, and in order to enact or seek to administer 
any voting qualification or prerequisite to voting, or stand­
ard, practice or procedure with respect to voting different 
from that in force or in effect on November 1, 1964, such 
state must institute the declaratory action in the United 
States District Court for the District of Columbia or sub­
mit the matter for approval or rejection to the Attorney 
General of the United States.

The Mississippi statute under consideration (House Bill 
68) is directed solely to the qualifications of candidates, 
whereas Section 5 has reference to the qualifications of 
voters. We do not believe that the Mississippi statute is 
of the kind which Section 5 of the Voting Rights Act of 
1965 was designed to prevent. The Mississippi statute 
under attack does not appear on its face to be one designed 
or intended to effect a discrimination or qualification re­
lating to the person or voting rights of the individual. The 
Act does not deal with voting but deals with elections, and 
more particularly the candidates; therefore, it does not im­
pinge upon Section 5 of the Voting Rights Act of 1965.

The State of Mississippi, prior to this Act, suspended its 
enforcement of statutory voter qualifications, including 
tests of literacy, and the Court takes judicial notice of the 
fact that over 160,000 Negroes have qualified to vote since



37

1963. Cases cited in plaintiffs ’ brief bave been noted, and 
none show the application of Section 5 of the Voting Rights 
Act of 1965 to the kind of statute here involved. The legis­
lative history of the Act is indicated in both plaintiffs’ and 
defendants’ briefs, citing portions of a hearing before the 
Judiciary Committee of the Senate. These exchanges be­
tween Attorney General Katzenbach and the senators are 
confined to questions involving qualifications of voters. On 
the 1966 motion in this case, the Court took jurisdiction 
under 42 U.S.C.A. § 1983 and § 1973c but made no applica­
tion of § 1973c to the ruling therein. It declines to do so 
here.

The Court judicially knows (from all but seven counties 
in Mississippi in which the information was not available) 
that sixty-seven Negroes did qualify as candidates in the 
Democratic primary elections of 1967 and seventeen were 
nominated for the general election.

The motion for an interlocutory injunction is accordingly 
denied, and the complaint in its entirety is without merit 
and is dismissed.

The judgment incorporating this per curiam opinion by 
reference thereto may be presented and signed by the man­
aging judge of this Court as the order of the entire Court.

R obert A . A insworth, J r.
United States Circuit Judge

W illiam H arold C ox
United States District Judge

Dan M. R ussell, Jr.
United States District Judge



38

APPENDIX A
IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 
JACKSON DIVISION

Civil Action No. 4025 

Clifton W hitley, et al., Plaintiffs

v.

P aul B. J ohnson, Governor o f the State of 
Mississippi, e t  al., Defendants

Stipulation— Filed September 25, 1987

It is hereby stipulated and agreed by and between the 
attorneys for all of the parties as follows:

1. That the state of Mississippi is a State with respect 
to which the prohibitions set forth in 42 U.S.C. § 1973b(a) 
(Voting Eights Act of 1965) are in effect and is therefore 
subject to the provisions of 42 U.S.C. § 1973c (Section 5, 
Voting Eights Act of 1965). The State of Mississippi was 
affected by the aforesaid prohibitions and subject to the 
aforesaid provisions on June 11, 1966 and continuously to 
this date;

2, That the State of Mississippi, in enacting House Bill 
68, Mississippi Laws 1966, which amended Section 3260 
of the Mississippi 'Code of 1942, did not comply with the 
provisions of 42 U.S.C. § 1973c (Section 5, Voting Eights 
Act of 1965) in that the State of Mississippi did not sub­
mit said statute either to the United States District Court 
for the District of Columbia for a declaratory judgment 
or to the Attorney General of the United States for his 
approval or objection. This is not to be construed as a 
concession by the defendants that the State of Mississippi 
was under any lawful obligation to so comply with the 
provisions of 42 U.S.C. § 1973c;



39

3. That one or more Negro independent candidates for 
political office in the Mississippi general election scheduled 
for November 7, 1967 has or have been challenged and dis­
qualified from having his or their names placed on the 
ballot in said election by virtue of having certain provi­
sions of House Bill 68, Mississippi Laws 1966, which 
amended Section 3260, Mississippi Code of 1942, applied to 
him or them. In particular, the following provisions of 
said statute have been applied to one or more of said 
Negro independent candidates who attempted to so qualify:

“ No person who has voted in a primary election shall 
thereafter have his name placed upon the ballot as 
an independent candidate for any office to be deter­
mined by the general election . . . ”

4. That some of the aforesaid Negro independent can­
didates who have been so challenged or disqualified are 
members of the class of plaintiffs described in the com­
plaint herein;

5. That the only issue before the Court at this time is 
whether or not House Bill 68, Mississippi Laws 1966, which 
amended Section 3260 of the Mississippi Code of 1942, is 
an attempt by the State of Mississippi to enact or seek to 
administer any voting qualification or prerequisite to vot­
ing, or standard, practice or procedure with respect to 
voting different from that in force or effect on November 
1, 1964; (language of 42 H.S.C. 1973c).

6. That this stipulation shall be filed with the Court. 
Dated: September 25,1967

A lvin J. B bonstein 
Attorney for Plaintiffs

Dated: September 25,1967
W ill S. W ells 

Attorney for Defendants



40

APPENDIX B
LAWYERS CONSTITUTIONAL DEFENSE COMMITTEE 

OF THE AMERICAN CIVIL LIBERTIES UNION 
SOUTHERN OFFICE

603 NORTH FARISH STREET, JACKSON, MISSISSIPPI 39202 
(601) 948-4191

ALVIN J. BRONSTEIN, CHIEF STAFF COUNSEL

September 25,1967
Hon. Robert A. Ainsworth, Jr.
United States Court of Appeals
400 Royal Street
New Orleans, Louisiana
Hon. W. Harold Oox 
P. O. Box 2447 
Jackson, Mississippi
Hon. Dan M. Russell, Jr.
P. O. Box 1930 
Gulfport, Mississippi

R e: Whitley v. Johnson
Civil Action No. 4025 ( J)

To the Judges of this Honorable Court:
Mr. Wells, on behalf of the defendants, and myself have 

finally entered into a stipulation in the above cause. We 
have today filed the original and three copies of same with 
the Clerk in Jackson, but I am enclosing additional copies 
herewith so that the Court may see that we have stipulated 
both as to all of the facts as well as to the sole issue we 
believe to be before the Court at this time.

Since all of the parties would hope to obtain a ruling 
from the Court prior to the November 7, 1967 general 
election in Mississippi, Mr. Wells and I have agreed that 
I will submit a brief on behalf of the plaintiffs within 
ten days from today and Mr. Wells will submit his brief



41

on behalf of the defendants within ten days after he re­
ceives plaintiffs’ brief, all, of course, subject to any differ­
ent or further direction from the Court.

Both Mr. Wells and myself would welcome the oppor­
tunity, if possible, to attend before the Court for the pur­
pose of answering any questions the Court might have, as 
well as to amplify our written argument.

Respectfully,

A lvin J. Bronstein 
Alvin J. Bronstein

cc : Will S. Wells, Esq.

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

JACKSON DIVISION

Civil Action No. 4025 

Clifton W hitley, et a l ., Plaintiffs

v.

Paul B. J ohnson, Governor of the State of 
Mississippi, e t  a l ., Defendants

Final Judgment—Filed October 31, 1967

This action having been heard on the merits pursuant to 
a stipulation entered into by counsel for the parties, and 
the plaintiffs’ motion for an interlocutory injunction hav­
ing been submitted together with the case on the merits, and 
the curiam opinion filed in this Court on October 27, 1967, 
which opinion is incorporated in its entirety herein by 
reference;



42

I t I s, Ordered, A djudged and Decreed by the C ourt:

That the plaintiffs’ motion for an interlocutory injunc­
tion is denied, and the complaint herein in its entirety, 
be and is hereby, dismissed.

Ordered, A djudged and Decreed, this 30th day of October, 
A.D., 1967.

Dan M. R ussell, J r.
United States District Judge

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

JACKSON DIVISION

Civil Action No. 4025 
Clifton W hitley, et al., Plaintiffs 

v.
P aul B. J ohnson, Governor of the State of 

Mississippi, et al., Defendants

Notice of Appeal to the Supreme Court of the United States—  
Filed October 31, 1967

1. Notice is hereby given that Rev. Clifton Whitley, 
Dock Drummond and Emma Sanders, on behalf of them­
selves and all others similarly situated, the plaintiffs 
above named, hereby appeal to the Supreme Court of the 
United States from the final judgment denying plaintiffs’ 
motion for an interlocutory injunction and dismissing the 
complaint entered in this action on October 30, 1967.

2. This appeal is taken pursuant to 28 U.S.C. § 1253.
3. The clerk will please prepare a transcript of the 

record in this cause for transmission to the Clerk of the 
Supreme Court of the United States, and include in said 
transcript, the following:

Complaint
Answer of Defendants



43

Affidavit of Lawrence Guyot filed as exhibit P-1 on 
October 26,1966.

Certified copy of population census of Mississippi, 1950 
and 1960, filed as exhibit P-2 on October 26, 1966.

Copy of House Bill #68 filed as exhibit D-2 on October 
26,1966,

Opinion of this three-judge Court dated October 26, 
1966 and filed October 26,1966.

Order granting temporary injunction dated and filed 
October 27,1966.

Stipulation dated September 25, 1967 and filed Sep­
tember 25,1967.

Motion for Interlocutory Injunction and affidavits at­
tached thereto filed on October 13,1967.

Opinion of this three-judge Court filed October 27, 
1967.

Final Judgment dated October 30, 1967 and filed Octo­
ber 31,1967.

Notice of Appeal and Certificate of Service.

The following questions are presented by this appeal:
a. Did the District Court err:
(i) In finding that House Bill 68, Mississippi Laws 

1966, which amended Section 3260 of the Mississippi Code 
of 1942, does not come within the purview of and is not 
covered by Section 5 of the Voting Eights Act of 1965 (42 
TLS.C. § 1973c) so as to require compliance with said Sec­
tion 5 by the State of Mississippi prior to enforcing or 
applying said Section 3260- as amended?

(ii) In not finding that the provision of House Bill 68, 
Mississippi Laws 1966, amending Section 3260 of the Mis­
sissippi Code of 1942, which requires that “ each elector 
shall personally sign”  the petition of an independent can­
didate, violates the Voting Eights Act of 1965 in that it



44

imposes a requirement for literacy and the ability to read 
and write which requirements are prohibited by 42 U.S.C. 
§ 1973b (a) and (c)f

(iii) In not finding that the provision of House Bill 68, 
Mississippi Laws 1966, amending Section 3260 of the Mis­
sissippi Code of 1942, which prohibits independent can­
didates from voting in a primary election violates the 
privileges and immunities clause of the Fourteenth Amend­
ment to the Constitution of the United States?

(iv) In not finding that the provision of House Bill 
68, Mississippi Laws 1966, amending Section 3260 of the 
Mississippi Code of 1942, which prohibits independent can­
didates, but not Republican candidates, from voting in the 
Democratic Primary, violates the equal protection clause 
of the Fourteenth Amendment to the Constitution of the 
United States ?

(v) In denying plaintiffs’ motion for an interlocutory 
injunction and dismissing plaintiffs’ complaint?

b. Whether, if the Supreme Court of the United States 
answers any of the foregoing questions in the affirmative 
after the November 7, 1967 general election, said Court 
should order a new election for each of the affected offices 
pursuant to Section 3260 prior to its amendment in 1966.

Respectfully submitted,
A lvin J. Bronstein 
Alvin J. Bronstein 
J ames A. Lewis 

603 N. Parish Street 
Jackson, Mississippi

R ichard B. S obol,
606 Common Street 
New Orleans, Louisiana

Attorneys for Appellants

[Certificate of Service omitted in printing].



45

SUPREME COURT OF THE UNITED STATES

October Term, 1967 
Nos. 1058,1059 and 1174 

J. C. F airley, et al., Appellants,

35-
J oe T. P atterson, et al. ;

Charles E. B unton, et al., Appellants,

%
J oe T. P atterson, et al. ; and 

Clifton W hitley, et al., Appellants, 

v>
John B ell W illiams, Governor of Mississippi, et al.

A ppeals from tlie United States District Court for  the 
Southern District of Mississippi.

Order Postponing Jurisdiction— June 10, 1988

The statements of jurisdiction in these cases having 
been submitted and considered by the Court, further con­
sideration of the question of jurisdiction is postponed to 
the hearing of the cases on the merits. The cases are 
consolidated and a total of two hours is allotted for oral 
argument.