Althiser v. New York State Department of Correctional Services Brief in Opposition

    I l f  T H E(Emxrt of tip? Itmtpft States
O ctober T e r m , 1963 

No. 51

D u p u y  H. A nderson  and A cie J . B e l t o n ,

Appellants,

W ade 0 .  M a r t in , J r .

A PPEA L  FR O M  T H E  U N IT E D  STA TES D ISTR IC T  COU RT 

FO R T H E  E A ST E R N  D ISTR IC T OF L O U ISIA N A

BRIEF FOR APPELLANTS

J ack  G reenberg  
J am es M . N abrit , III 

10 Columbus Circle 
New York 19, New York

J o h n n ie  A . J ones
530 South 13th Street 
Baton Rouge 2, Louisiana

M u r p h y  W . B ell  
B ruce  A . B ell  
L eonard P. A very 
S a m u el  D ic k e n s  
W il m o n  L. R ichardson  

Baton Rouge, Louisiana
Attorneys for Appellants

M ic h a e l  M e l t sn e r  
N orman  C. A m a k er  
F r a n k  H . H effr o n  

Of Counsel



I N D E X
PAGE

Opinions Below.............. ................-..............................  1

Jurisdiction ..........................................................-......... 1

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

Question Presented .....................   3

Statement .......................................................................  3

Summary of Argument ................................................ 5

Argument ................................. -............. -......................  6
I. Louisiana’s Statute Providing for Racial Desig­

nation of Candidates on the Ballot Denies Equal 
Protection of the Laws .....................................  6
A. Racial classifications are presumptively in­

vidious and Louisiana has no legitimate gov­
ernmental purpose in making such a classifi­
cation on its ballots ....................................... 7

B. This statute imposes special burdens on
Negro candidates in Louisiana....................... 10

II. Louisiana’s Statute Requiring Each Candidate to 
Disclose His Race for Publication on the Ballot 
Constitutes a Denial of Liberty Without Due 
Process of L aw .....................................................  16

Conclusion.............. ............................. ..........................  18



11
T able of Cases

page

American Communications Ass’n v. Douds, 339 U. S.
382 ....................................................................... -...... 7

Anderson v. Courson, 203 F. Supp. 806 (M. D. G-a. 
1962) ................... .......................................................  10

Barrows v. Jackson, 346 U. S. 249 ...............................  9
Bolling v. Sharpe, 347 IT. S. 497 ............................8,10,17
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th

Cir. 1960) .............. ................................................. 9
Brown v. Board of Education, 347 U. S. 483 .................  10

Gantt v. Clemson Agricultural College of South Caro­
lina, -----  F. 2d -----  (4th Cir., No. 8871, Jan. 16,
1963) ........................................................................... 9

Gibson v. Florida Investigation Committee, 360 U. S.
919 ................................................................................  16

Gomillion v. Lightfoot, 364 U. S. 339 .............................. 15
Goss v. Board of Education, 373 IT. S. 683 ................. 8,10
Green v. City of New Orleans, 88 So. 2d 76 (La. App. 

1956) ............................................................................  13

Hirabayashi v. United States, 320 U. S. 8 1 .................  8

Korematsu v. United States, 323 U. S. 214.................  8

Lane v. Wilson, 307 U. S. 268 ....................................... 15
Lee v. New Orleans, G. N. R.R., 125 La. 236, 51 So. 182 

(1910) ......................... ...............................................  14

MacDonald v. Key, 224 F. 2d 608 (10th Cir., 1955), 
cert, den., 350 U. S. 895 ..........................................  15

May v. Shreveport Traction Co., 127 La. 420, 53 So. 
671 (1910) .................................................................. 13



I l l

PAGE

NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 ....9,16

Peterson v. City of Greenville, 373 IT. S. 244 ................  9
Plessy v. Ferguson, 163 IT. S. 537 ____ ___ ________  7

School District of Abington Township v. Schempp, 374
IT. S. 203 ........ ........... ..... ........................... ................ 16

Shelton v. Tucker, 364 U. S. 479 ............................. .....  9
Smith v. Texas, 311 U. S. 128.............. ................ ....... 15
State v. Treadway, 126 La. 300, 52 So. 500 (1910) ......  14
State ex rel. Rodi v. City of New Orleans, 94 So. 2d 108

(La. App. 1957) ...... ..... ......... .............. ............. ........ 13
State ex rel. Treadway v. Louisiana State Board of 

Health, 56 So. 2d 249 (La. App. 1952), aff’d 61 So. 2d
735 (1958) ...................... ........... ..... ..........................  13

State ex rel. Troselair v. Parish Democratic Committee,
120 La. 620, 45 So. 526 (1908) _________________ 12

State of Louisiana ex rel. Dupas v. City of New Orleans,
et al., 125 So. 2d 375 (La. App. 1958) ___ _________ 13

Sunseri v. Cassagne, 191 La. 209, 185 So. 1 (1938) ___  13

Talley v. California, 360 IT. S. 928 .................... ..........  16

United States v. The Association of Citizens Councils 
of Louisiana, et al., 196 F. Supp. 908 (W. D. La.
1961) ................. ........... ......... ............. .................. 12

United States v. Deal,-----F. Supp.------ , 6 Race Rel.
L. Rep. 474 (W. D. La. 1961) .......... ......................... 12

United States v. Manning, 205 F. Supp. 172 (W. D. La.
1962) ..................... .......................... .......................... 12

United States v. McElveen, 180 F. Supp. 10 (E. D. La.
1960) ----------------------------- ------- --------------- - 12

Upton v. Times Democrat, 104 La. 141, 28 So. 970 
(1900) ................. ............ ......... ......... .......................  13

Villa v. Lacoste, 35 So. 2d 419 (1948) ...................... . 13



IV

S tatu tes

page

28 U. S. C. §2281 ........................................................... 3
28 U. S. C. §2284 ..................................... .....................  3
La. Const. 1921, Art. X, §5.1, as amended 1960 .............. 12
La. R. S. 4 :5 ..............................................     12
La. R. S. 4:451............    12
La. R. S. 4:452 ...............   12
La. R. S. 9 :201...........    12
La. R. S. 13:917 .............        12
La. R. S. 13:1219 ................   12
La. R. S. 15:422(6) ........... .    12,13
La. R. S. 15:442 ........................................................... 12
La. R. S. 15:752 ........................................................... 12
La. R. S. 15:854 .....................................       12
La. R. S. 17:10............................................................  12
La. R. S. 17:11............................................................  12
La. R. S. 17:12............................................................  12
La. R. S. 17:443 ........................................................... 12
La. R. S. 17:462 ........................................................... 12
La. R. S. 17:493 ........................................................... 12
La. R. S. 17:523 ....................................    12
La. R. S. 18:1174.1 .......... ....................................2, 3,4, 5, 6
La. R. S. 23:971 ...............   12
La. R. S. 23:972 12



V
PAGE

La. R. S. 23:973 ....................... ...............-............ ........  12
La. R. S. 23:974 ..................................... .......................  12
La. R. S. 23:975 .......... ...............„.......................-........  12
La. R. S. 33:4558.1 ..       12
La. E. S. 33:5066-5068 ......             12
La. R. S. 40:244........... ............................... ................ 12
La. E. S. 40:246 ...................       12
La. E. S. 46:181 .................         12
La. Acts, 1906, Act No. 49, §9 ........          12
La. Acts, 1960, Act No. 630 .................     11

O t h e r  A u t h o r it ie s

Black, “The Lawfulness of the Segregation Decisions,”
69 Tale L. J. 421 (1960) ............ ...............................  14

U. S. Commission on Civil Eights, Eeport on Voting 
(1961) ....................................... ..........................10,12,15

Wollett, Eace Relations, 21 La. L. Eev. 85 (1960) ___  13
Woodward, The Strange Career of Jim Crow (1963) .... 12



I n  t h e

fe u p r o n *  (B urnt n f  tljr THuittb S t a t e s
O ctober T e e m , 1963 

No. 51

D tjptjy H. A nderson  and A cie  J. B e lto n ,

Appellants,
■—v.—

W ade 0 .  M a r t in , J e.

A PPEA L  FR O M  T H E  U N IT E D  STA TES D IST R IC T  COU RT 

FO R T H E  EA ST E R N  D ISTR IC T OF L O U ISIA N A

BRIEF FOR APPELLANTS

Opinions Below

The opinion of the three-judge District Court (R. 27) 
is reported at 206 F. Supp. 700. The dissenting opinion of 
Judge Wisdom (R. 34) is reported at 206 F. Supp. 705.

Jurisdiction

The order of the District Court denying the prayer for 
issuance of a permanent injunction was entered on Octo­
ber 3, 1962 (R. 44; Jurisdictional Statement, p. A24). 
Notice of Appeal to this Court was filed in the District 
Court on October 25, 1961 (R. 48). Appellants’ Jurisdic­
tional Statement was filed on December 21, 1962, and prob­
able jurisdiction was noted on February 18, 1963.



2

Statutes Involved

La. R. S. §18:1174.1 (1960 Supp.) was enacted as Act 
No. 538 of the 1960 Regular Session of the Louisiana Legis­
lature. It provides as follows:

Designation of race of candidates on paper and ballots
A. Every application for or notification or declara­

tion of candidacy, and every certificate of nomination 
and every nomination paper filed in any state or local 
primary, general or special election for any elective 
office in this state shall show for each candidate named 
therein, whether such candidate is of the Caucasian 
race, the Negro race or other specified race.

B. Chairman of party committees, party executive 
committees, presidents or boards of supervisors of 
election or any person or persons required by law to 
certify to the secretary of state the names of candi­
dates to be placed on the ballots shall cause to be shown 
in such certification whether each candidate named 
therein is of the Caucasian race, Negro race or other 
specified race, which information shall be obtained 
from the applications for or notifications or declara­
tions of candidacy or from the certificates of nomina­
tion or nomination papers, as the case may be.

C. On the ballots to be used in any state or local
primary, general or special election the secretary 
of state shall cause to be printed within parentheses 
( ) beside the name of each candidate, the race of the
candidate, whether Caucasian, Negro, or other specified 
race, which information shall be obtained from the 
documents described in Sub-section A or B of this 
Section. The racial designation on the ballots shall be 
in print of the same size as the print in the names of 
the candidates on the ballots.



3

This case also involves the Fourteenth and Fifteenth 
Amendments to the United States Constitution.

Question Presented

Whether La. R. S. §18:1174.1, which provides for the 
designation of the race of candidates for elective office 
on nomination papers and ballots in all primary, general or 
special elections, violates the equal protection and due 
process clauses of the Fourteenth Amendment, and the 
Fifteenth Amendment, to the Constitution of the United 
States.

Statement

Appellants Dupuy H. Anderson and Acie J. Belton are 
Negro citizens of the United States and the State of 
Louisiana, residing in the Parish of East Baton Rouge, 
Louisiana (R. 3-4, 25). Both were candidates for nomina­
tion to the office of Member of the School Board of the 
Parish of East Baton Rouge in the Democratic Party 
primary election held on July 28, 1962 (Ibid.). They filed 
a complaint in the District Court for the Eastern District 
of Louisiana on June 8, 1962 to enjoin the enforcement of 
Act. No. 538 of the 1960 Session of the Louisiana Legisla­
ture (R. 1), which requires that each candidate’s race ap­
pear beside his name on all nomination papers and ballots. 
The complaint named as defendant Wade 0. Martin, who, 
as Secretary of State of the State of Louisiana, was charged 
by the terms of the statute with its enforcement. Assert­
ing that the statute violated inter alia the Fourteenth and 
Fifteenth Amendments to the Constitution, plaintiffs re­
quested preliminary and permanent injunctions and a tem­
porary restraining order. They also asked that a three- 
judge court be convened pursuant to 28 U. S. C. §2281, 
2284.



4

On June 11, 1962 the motion for temporary restraining 
order was denied by District Judge West (R. 15).

A three-judge court was convened (R. 17) and the cause 
was heard on June 26, 1962. At the hearing a responsive 
pleading was filed admitting many facts alleged in the 
complaint (R. 25). Defendant had previously filed a mo­
tion to dismiss for lack of jurisdiction (R. 22). The court 
denied the motion to dismiss and proceeded to a hearing 
on the merits (R. 21). In open court the parties stipulated 
that the defendant was a ministerial officer required to 
enforce R. S. §18:1174.1 and that he caused the ballots to 
be printed in accordance with the provisions of the stat­
ute (R. 45-47). After argument, the motion for preliminary 
injunction was denied on June 26, 1962, with Judge Wisdom 
dissenting (R. 21-22). The majority and dissenting opinions 
were filed on June 29,1963 (R. 27, 34).

On September 19, 1962 Judge West denied (R. 43) plain­
tiffs’ motion for leave to file a proposed amended or sup­
plemental complaint, which alleged that the aforementioned 
primary election was held on July 28, 1962 and that in 
accordance with the statute in issue the race of each 
plaintiff was noted beside his name on the ballot; that 
plaintiff Anderson was defeated in the primary and plain­
tiff Belton was defeated in a subsequent run-off primary 
held on September 1, 1962; that the plaintiffs’ unsuccess­
ful candidacies were substantially influenced by the opera­
tion and enforcement of the statute; and that the plaintiffs 
“intend to be candidates in the next duly constituted 
democratic primary election for nomination as members 
of the East Baton Rouge Parish School Board and fur­
ther that they intend to seek other public office” in the 
parish and the state in the future (R. 37-42).



5

On September 28, 1962 the three-judge District Court 
signed (E. 41), and on October 3, 1962 entered (Jurisdic­
tional Statement, p. A24), a final order denying the prayer 
for permanent injunctive relief. This order incorporated 
by reference the opinion of June 29, 1962, and again Judge 
Wisdom noted his dissent.

Notice of Appeal from the denial of a permanent in­
junction was filed in the District Court on October 25, 
1962 (R. 48). The jurisdictional statement was filed in 
this Court on December 21, 1962, and probable jurisdiction 
was noted on February 18, 1963.

Summary of Argument

La. R. S. §1174.1 compels each candidate for public office 
to disclose his race and requires the state to publish the 
race of each candidate on the ballot. The Constitution is 
color blind, and this statute denies equal protection of the 
laws because on its face it compels a classification accord­
ing to race. Although racial classifications are presump­
tively invidious, Louisiana has shown no legitimate end to 
be served by the statute, and in fact the statute unconstitu­
tionally makes racial discrimination possible and encourages 
the practice. Because racial classifications stigmatize the 
minority, they are just as much proscribed by the Con­
stitution as more obvious forms of discrimination and phy­
sical segregation.

The racial ballot statute clearly is void because it operates 
with unequal effect against Negro candidates. In Louisiana 
society, the Negro has been relegated to an inferior status 
by both private and governmental action; designation as 
a Negro identifies the candidate with a group that is, by 
hypothesis according to state policy, unfit for office. More­
over, Negro voters constitute a relatively insignificant



6

minority of Louisiana’s electorate, so that normal patterns 
of bloc voting, as encouraged by this statute, usually favor 
the white candidate.

The statute also denies individual liberty without due 
process of law. The state is requiring the disclosure of 
information with no bona fide public purpose, much less a 
compelling interest. By this statute, Louisiana has selected 
a single, highly prejudicial factor for universal publication, 
and thus denies the individual the liberty to seek office and 
campaign for office according to his own estimate of effec­
tive campaign tactics.

A R G U ME N T

I .

Louisiana’s Statute Providing for Racial Designation 
of Candidates on the Ballot Denies Equal Protection of 
the Laws.

Section 18.1174.1 of the Louisiana Revised Statutes 
(Supp. 1961) requires candidates for elective office to state 
on all applications, declarations of candidacy, and nomina­
tion papers whether they are “of the Caucasian race, the 
Negro race, or other specified race.” The Secretary of 
State is directed by the statute to print each candidate’s 
race in parentheses beside his name on the ballot. The ap­
pellants, Negro candidates for state office, challenge the 
statute’s validity under the Fourteenth Amendment.

Without serving any legitimate governmental object, this 
statute introduces a racial classification into the electoral 
process. It forces a candidate to disclose information that 
can prejudice his chances for success at the polls. It posi­
tively assures that bigoted voters will not lose, through 
indolence, apathy, or inattention, an opportunity to enforce



7

their racial prejudices at the polls. And it drives home to 
every voter in Louisiana that the State considers a candi­
date’s race to be a factor worthy of the voter’s considera­
tion.

A. Racial classifications are p resu m p tive ly  invid ious and  
Louisiana has no leg itim ate govern m en ta l p u rp o se  in m ak­
ing such a classification on its ballots.

Contrary to the equal protection clause of the Four­
teenth Amendment, this statute on its face classifies per­
sons according to race. It does so no less than a require­
ment that every man wear an arm band signifying his race 
or religion or nationality, cf. American Communications 
Ass’n v. Douds, 339 U. S. 382, 402 (1950) (dictum). But, 
“In the eyes of the Constitution a man is a man. He is not 
a white man, he is not an Indian, he is not a negro.” Instant 
case, R. 34; 206 F. Supp. at 705 (Wisdom, J dissenting). 
Before the turn of the century, the first Justice Harlan 
called for recognition of the essential equality of citizens, 
rather than an emphasis on irrelevant distinctions:

. . .  in view of the Constitution, in the eye of the law, 
there is in this country no superior, dominant, ruling 
class of citizens. There is no caste here. Our Constitu­
tion is color-blind and neither knows nor tolerates 
classes among citizens. In respect of civil rights, all 
citizens are equal before the law. The humblest is the 
peer of the most powerful. The law regards man as 
man, and take no account of his color when his civil 
rights as guaranteed by the supreme law of the land 
are involved. Plessy v. Ferguson, 163 U. S. 537, 559 
(dissenting opinion).

Racial differences do exist, and acknowledgment of these 
differences, even by the State, can occasionally serve some



8

■useful purpose. The national census, by taking note of race, 
contributes information of considerable value to social re­
search. The constitutional ban on racially discriminatory 
state action could not be enforced if courts were truly blind 
to racial groupings. In such cases the notation of racial 
differences is unlikely to be objectionable to any person 
or group, and in any event, it has some reasonable relation 
to the achievement of a legitimate governmental object.

Here, Louisiana has undertaken to place men in racial 
categories without serving any legitimate end of the State. 
Eacial designation of candidates has no connection what­
ever with the State’s function of regulating elections. Mem­
bership in a given race is not a qualification for office, and 
it could not be. A voter’s knowledge of the race of the 
respective candidates has no bearing on his qualifications 
as a voter. If any valid purpose is served by the designa­
tion statute, Louisiana’s attorney-general has given no hint 
of it.

“Classifications based solely upon race must be scru­
tinized with particular care, since they are contrary to our 
traditions and hence constitutionally suspect.” Bolling v. 
Sharpe, 347 U. 8. 497, 499; Korematsu v. United States, 
323 IJ. S. 214, 216; Hirabayashi v. United States, 320 U. S. 
81, 100. As this Court reiterated in the last term, “racial 
classifications are ‘obviously irrelevant and invidious.’ ” 
Goss v. Board of Education, 373 IJ. S. 683, 687. When the 
state mandates that its ballots classify all candidates for 
public office according to race, it must come forward with 
some explanation.

The only explanation offered anywhere in the record is 
the conclusion of the court below that racial designation 
“contributes to a more informed electorate.” E. 29; 306 
F. Supp. at 702. This conclusion is of course correct, but 
the only conceivable result of disseminating information



9

to voters while they are marking their ballots in the voting 
booth is to encourage voting on the basis of that informa­
tion. Thus, if this statute has any purpose at all, it is to 
stimulate and facilitate the racial prejudices of Louisiana’s 
voters. In NAACP v. Alabama ex rel. Patterson, 357 U. S. 
449, 463, where state-compelled disclosure of the Associa­
tion’s membership list was resisted on the ground that 
private reprisals would follow, this Court declared that 
“the crucial factor is the interplay of governmental and 
private action, for it is only after the initial exertion of 
state power . . . that private action takes hold.” See also, 
Barrows v. Jackson, 346 IT. S. 249, 254 (award of damages 
would encourage use of restrictive covenants). Here the 
state is acting to employ the full potential of possible dis­
crimination by its private citizens. The State can no more 
encourage voters to discriminate according to race than 
it can exhort restaurateurs, Peterson v. City of Greenville,1 
373 IT. S. 244, common carriers, Boman v. Birmingham 
Transit Co., 280 F. 2d 531 (5th Cir. 1960), or school officials, 
Gantt v. Clemson Agricultural College of South Carolina,
----- F. 2d —  (4th Cir., No. 8871, January 16, 1963), to
practice segregation. And having furnished the opportunity 
for private discrimination, the State is not in a position 
to assert that discrimination would have occurred without 
the State’s intervention, cf. Peterson v. City of Greenville, 
373 IT. S. 244, or to insist on proof that discrimination 
actually results from the state’s conduct, see Shelton v. 
Tucker, 364 U. S. 479.

The opinion below errs—it is submitted—in its refusal 
to acknowledge that this Court’s repeated condemnation

Nn Peterson v. City of Greenville, supra, the segregation ordi­
nance was clearly void and amounted to no more than an exhorta­
tion, although by its terms it appeared to be a requirement.



10

of racial classifications, e.g., Bolling v. Sharpe, supra; 
Goss v. Board of Education, supra, literally means that 
unjustified classifications, as well as outright discrimina­
tion and physical segregation, are constitutionally im­
permissible. For a time it was thought that racial segre­
gation did not fall within the ambit of the Fourteenth 
Amendment, but Brown v. Board of Education, 347 U. S. 
483, dissolved that confusion. It is now recognized that 
when a dominant majority relegates a racial minority to 
separate facilities, an inherent inequality of treatment 
springs from the inevitable stigma attached to the separa­
tion. The same is true of classification, particularly when 
the classification contributes to the attainment of no per­
missible legislative goal. The Negro candidate who must 
declare his race and the Negro voter who sees racial des­
ignation on the ballot are set apart and stigmatized fully 
as much as when forced to vote at a segregated polling 
place.2 If the official classification served some justifiable 
governmental purpose, an acknowledgment of physical 
characteristics might not necessarily stigmatize the minor­
ity, but classification for the sake of classification serves 
only to make an issue of irrelevant differences.

B. This sta tu te  im poses special burden  on Negro  
candidates in Louisiana.

The presumption that racial classifications are invidious 
is of course demonstrable here. There need be no diffidence 
in applying such a presumption when appraising a racial 
classification imposed by a state whose deepest public

2 Segregated polling places and voting lists were condemned in 
Anderson v. Courson, 203 F. Supp. 806 (M. D. Ga. 1962). The 
U. S. Civil Rights Commission’s Report on Voting, 67-68 (1961) 
reported on the use of segregated voting machines in St. Helena 
Parish, Louisiana.



11

policy commitment is to the maintenance of segregation 
and white supremacy.3

This statute, by its mere existence, is an assertion of 
the obvious fact that publicizing a candidate’s race will 
have some impact upon elections. If Louisiana cared to 
deny this, it could do so only by asserting that its Legis­
lature did a meaningless thing in passing this law.

It requires only an ordinary citizen’s knowledge of the 
world about us to be sure that in Louisiana it does indeed 
make a difference whether a man is known and regarded 
as white or Negro, and that Louisiana’s past and present 
laws have something to do with this difference.4 Louisiana 
has so ostracized its Negro citizens, worked so long and 
hard to brand Negroes as in inferior class and so clearly 
succeeded in its efforts to stigmatize Negroes, that it is 
hard to imagine that the State would care to argue that 
a publication of a Negro candidate’s race does not work 
to his disadvantage. To make such an argument, the State 
must deny the effectiveness and impact of its most massive 
and coveted policies.

Louisiana has branded Negroes as inferior and treated 
them accordingly by virtually every means available. It

3 Louisiana expressed this policy unequivocally in 1960, the same 
year the present racial ballot law was passed, by the preamble to 
Act No. 630, declaring:

“W hereas, Louisiana has always maintained a policy of 
segregation of the races, and

“W hereas, it is the intention of the citizens of this sov­
ereign state th a t such a policy be continued.”

(La. Acts 1960, p. 1200.)
4 Even if Louisiana’s government had no responsibility at all 

for the “low-caste” status of Negroes in Louisiana life, this law 
which encourages voters to make decisions on a racial basis effec­
tively operates to maintain the Negro’s disadvantaged position by 
encouraging racism in the voting booth.



12
is Negroes who have been denied access to the polls in 
Louisiana, first by the white primary,5 and now by more 
sophisticated means.6 Numerous state laws still command 
segregation of Negroes in public facilities7 in the teeth of

5 See, State ex rel. Trosclair v. Parish Democratic Committee, 
120 La. 620, 622, 45 So. 526 (1908) :

“It is conceded that none but a ‘white Democrat is entitled to 
become a candidate for a Democratic nomination in this State, 
under the rules adopted by the Party Central Committee, pur­
suant to Section 9 of Act No. 49, p. 69 of 1906.’ ”

See also, Woodward, The Strange Career of Jim Crow 68 
(1963) : “The effectiveness of disenfranchisement is suggested by 
a comparison of the number of registered Negro voters in Louisiana 
in 1896, when there were 130,334, and in 1904, when there were 
1,342. Between the two dates the literacy, property, and poll-tax 
qualifications were adopted. In 1896 Negro registrants were in a 
majority in twenty-six parishes—by 1900 in none.”

6 See, e.g., United States v. Manning, 205 F. Supp. 172 (W. D.
La. 1962) ; United States v. Deal,----- F. Supp. -------, 6 Race Rel.
L. Rep. 474 (W. D. La. 1961) ; United States v. The Association of 
Citizens Councils of Louisiana, et al., 196 F. Supp. 908 (W. D. 
La. 1961); United States v. McElveen, 180 F. Supp. 10 (E. D. 
La. 1960).

Although non-whites comprised 28.5 percent of the population 
of Louisiana they account for only 13.8 percent of the registered 
voters. TJ. S. Commission on Civil Rights, Report on Voting 107 
(1961).

7 La. R. S. 40:244 (birth certificates) ; La. R. S. 33 :5066-5068 
(housing) ; La. R. S. 33:4558.1 (parks, playgrounds, swimming 
pools, etc.); La. R. S. 4:5 (circus entrance); La. R. S. 4:452 
(seating at entertainments and athletic contests) ; La. R. S. 4:451 
(social functions); La. R. S. 23:971-975 (eating and sanitary fa­
cilities in businesses) ; La. R. S. 9 :201 (anti-miscegenation) ; La. 
R. S. 13:917, 13:1219 (divorce proceedings); La. R. S. 17:10-12 
(institutions for blind and deaf) ; La. R. S. 46:181 (homes for 
the aged and infirm) ; La. R. S. 15:752, 15 :854 (prisons); La. R. S. 
40:246 (death certificates); La. R. S. 23:972 (separate utensils 
and eating facilities for employees in businesses) ; La. R. S. 
15:422(6) (Louisiana criminal courts take judicial notice of extra- 
legal racial customs) ; La. R. S. 17:443, 17:462, 17 :493, 17:523 
(State employees enjoined from advocating integration under pen­
alty of losing jobs) ; La. Const., 1921, Art. X, as amended 1960, 
§5.1 (State segregates all facilities).



13

this Court’s rulings that segregated public facilities can 
never be equal for the minority group. Louisiana makes 
it actionable to call a white man a Negro, no matter how 
innocent the defendant’s mistake or how slight the plain­
tiff’s apparent injury; the premise of Negro inferiority 
shines clearly in this jurisprudence. Upton v. Times Demo­
crat, 104 La. 141, 28 So. 970 (1900); May v. Shreveport 
Traction Co., 127 La. 420, 53 So. 671 (1910). That Louisi­
ana’s political power and high offices, forming a regime 
notorious for its history of massive resistance to desegre­
gation,8 lies in the hands of white men alone is a fact 
which the Court can notice.9 Louisiana’s reports, too, are 
filled with proof that both the Courts and litigants regard 
race as “a matter of supreme importance to those who are 
involved.” State ex rel. Rodi v. City of New Orleans, 94 
So. 2d 108, 116 (La. App. 1957). It was said by a Louisiana 
court in the last mentioned case, which is but one of many 
where courts were called on to decide whether race was 
correctly stated in birth or death records,10 that:

We feel that nothing can possibly be of more impor­
tance than for a person to be absolutely certain as to 
his genealogy and particularly as to his race; we 
know that a white person has an absolute right to be 
known as wdiite and a colored person has the same 
right to be known as colored, and we know that in

8 See Wollett, Race Relations, 21 La. L. Rev. 85, 86 (1960).
9 La. R. S. §15-422(6) (1950) allows Louisiana’s courts to take 

judicial notice of “the political, social and racial conditions pre­
vailing in this State.”

10 E.g., Sunseri v. Cassagne, 191 La. 209, 185 So. 1 (1938) ; Villa 
v. Lacoste, 35 So. 2d 419 (1948) ; State ex rel. Treadway v. Loui­
siana State Board of Health, 56 So. 2d 249 (La. App. 1952), aff’d 
61 So. 2d 735 (1958) ; Green v. City of New Orleans, 88 So. 2d 
76 (La. App. 1956); State of Louisiana ex rel. Dupas v. City of 
New Orleans, et al., 125 So. 2d 375 (La. App. 1958).



14

this area nothing can cause greater distress and humil­
iation to those who believe themselves to be of one 
race and then to find that they have in their veins the 
blood of another. Id. at 116-17.

It is of course a part of the mystique of racism to define 
Negroes as those with “any appreciable mixture” of Negro 
“blood.” 11 “A small proportion of Negro ‘blood’ puts one 
in the inferior race for segregation purposes; this is the 
way in which one deals with a taint, such as a carcinogene 
in cranberries.” 12 It is extremely difficult to “qualify” as a 
white man in Louisiana.

In the circumstances of life in Louisiana, it is vacuous 
to assert that the racial designation operates equally with 
respect to all races because all races must be designated 
on the ballot. To be designated on the ballot by the state 
as a Negro is to be designated as a legally inferior citizen, 
one deemed unfit to participate equally in the affairs of 
the community. To be designated as white is to be grouped 
with the dominant majority.

Beyond all this, the simple mathematics of population 
and voter registration remain as an obstacle to the asser-

11 Neither the statute challenged in this case nor any other 
Louisiana statute defines the term “Negro” or any similar term. 
In Lee v. New Orleans G. N. R.B., 125 La. 236, 51 So. 182 (1910), 
the Supreme Court of Louisiana defined the word “colored” as 
“a term specifically applied in the United States to negroes or 
persons having an admixture of Negro blood, the same word is 
often applied to black people, Africans, or their descents, mixed 
or unmixed, and to persons who have any appreciable mixture of 
African blood. . . . ”

In State v. Treadway, 126 La. 300, 52 So. 500 (1910), the 
same term was defined to mean “of some other color than white, 
having a dark or black color of the skin, specifically in the United 
States belonging wholly or partially to the African race, having 
or partaking of the color of the Negro . . .  a person having Negro 
blood in his veins.”

12 Black, “The Lawfulness of the Segregation Decisions”, 69 
YaleL. J. 421, 426 (1960).



15

tion that this law treats Negroes equally. Again, assuming, 
as the Louisiana law at bar assumes, that race does 
make a difference to voters, racial bloc voting is facilitated 
by this law and vastly favors white candidates in Louisiana. 
No parish in Louisiana has a majority of Negro voters. 
In all but five of the sixty-four parishes, whites constitute 
more than 70% of the registered voters.13 Only at the ward 
or precinct level is there a possibility, perhaps, that there 
are areas where racial bloc voting could aid a Negro candi­
date. So the obvious effect of the law is to aid white candi­
dates through white bloc voting in any interracial election 
contest.

This attempt by Louisiana to codify racism cannot really 
be regarded as different from that made by Oklahoma, a 
decade ago, in passing a statute requiring Negroes, and 
only Negroes, to disclose their race for designation on the 
ballot. The Tenth Circuit struck down the law because it 
was blatantly discriminatory against Negroes. McDonald 
v. Key, 224 F. 2d 608 (1955), cert, denied, 350 U. S. 895. 
The draftsman of Louisiana’s law was more astute, but the 
Constitution forbids “sophisticated as well as simple- 
minded modes of discrimination.” Lane v. Wilson, 307 U. S. 
268, 275; Go-million v. LigMfoot, 364 U. S. 339, 342; cf. 
Smith, v. Texas, 311 IT. S. 128, 132.

In summary, Louisiana’s statute operates with unequal 
effect against the Negro. It is invalid because the State has 
no more right to encourage voters to discriminate by race, 
or to act to insure that they will, than it has to require 
voters to discriminate racially. This statute is also defec­
tive because it ignores the fundamental assumption of the 
Fourteenth Amendment. Racial distinctions are invalid 
“simply because our Constitution presupposes that men are

13 U. S. Commission on Civil Rights, Report on Voting 266-69 
(1961).



16

created equal, and that therefore racial differences cannot 
provide a valid basis for governmental action.” School Dis­
trict of Abington Township v. Schempp, 374 U. S. 203, 
317 (Stewart, J., dissenting). “ [T]he Fourteenth Amend­
ment requires that race not be treated as a relevant factor” 
Ibid. Repudiating these fundamental principles, the State 
of Louisiana is, by its racial ballot law, enforcing an official 
policy, however inexplicit, that differences in race justify 
differences in treatment.

II.
Louisiana’s Statute Requiring Each Candidate to Dis­

close His Race for Publication on the Ballot Constitutes 
a Denial of Liberty Without Due Process of Law.

Louisiana’s statute also deprives the individual of his 
liberty without due process of law. It deprives him of the 
opportunity to seek public office without identifying with 
an ethnic group and disclosing that identity for official pub­
lication. The plaintiffs choose to run for office as men 
rather than as Negroes and to have the publication of their 
racial background, and indeed of any other facts, left to 
normal campaign channels, but this liberty the State denies 
by taking the matter into its own hands.

If any bona fide public purpose were served by the 
operation of this statute the Court would be faced with a 
difficult issue such as those posed in Talley v. California, 
360 U. S. 928; NAACP v. Alabama ex rel. Patterson, 357 
U. S. 449; and Gibson v. Florida Investigation Committee, 
360 U. S. 919, where the governmental object to be served 
by compulsory disclosure had to be weighed against the 
individual’s constitutional rights. Here, the statute serves 
no legitimate governmental object.



17

Balanced against the state’s utter absence of a valid gov­
ernmental purpose is a serious invasion of the individual’s 
right to campaign for office on his own ground. The court 
below refused to recognize any claim to the right of privacy 
in this case, declaring that it was “not disposed to create 
a shield against the brightest light of public examination 
of candidates for public office.” This misstates the issue, 
for the question is not whether the court should create 
a shield, but whether the state can shine the light.

Voters often judge candidates by strange criteria. Race 
is important in Louisiana. Health, religion, nationality, 
age, and sex are other factors that can influence a voter’s 
decision. In some circumstances such factors could con­
ceivably relate rationally to a man’s conduct in the office 
he seeks. Often such factors are seized upon unthinkingly. 
None could deny the individual voter’s right to give them 
whatever importance he chooses.

It is equally clear that each person who seeks public 
office has the right to advertise his virtues and try to mini­
mize his deficiencies. In his attempt to persuade the elec­
torate, the candidate must carefully select those items of 
information that he believes to be most helpful to his 
cause and give them the broadest publication. If his oppo­
nent plays up the candidate’s weaknesses, there can be no 
complaint. But the government has no business trying to 
influence the electorate. When the state disseminates cam­
paign information it intrudes into an area where it can 
do incalculable harm. Here, the State of Louisiana is dis­
seminating information on each candidate’s race while the 
voter is recording his decision. In order to do so the state 
forces the candidate to provide it with the needed infor­
mation. Compulsory disclosure destroys the candidate’s 
freedom to conduct his own campaign; due process requires 
that some legitimate governmental end be served. Bolling 
v. Sharpe, 347 U. S. 497.



18

CONCLUSION

For the foregoing reasons, appellants respectfully 
submit that the judgment below should be reversed.

Respectfully submitted,

J ack  Greenberg  
J am es M. N abrit , III 

10 Columbus Circle 
New York 19, New York

J o h n n ie  A . J ones
530 South 13th Street 
Baton Rouge 2, Louisiana

M u r p h y  W . B ell  
B ruce  A . B ell  
L eonard P. A very 
S a m u el  D ic k e n s  
W il m o n  L . R ichardson

Baton Rouge, Louisiana
Attorneys for Appellants

M ic h a e l  M e l t sn e r  
N orm an  C. A m a k er  
F ra n k  H . H effr o n  

Of Counsel