LASSITER v. NORTHAMPTON ELECTION BD.
Legal provision: Equal Protection
Argument of Samuel S. Mitchell
Chief Justice Earl Warren: Number 584, Louise Lassiter versus Northampton County Board of Elections.
Mr. Mitchell you may proceed.
Mr. Samuel S. Mitchell: May it please the Court.
This is an appeal from the Supreme Court of North Carolina in case of Louise Lassiter versus Northampton County Board of Elections.
The opinion below was an affirmance of the judgment of the Superior Court of Northampton County which had in turn affirmed the decision of the County Board of Election which had in turn affirmed the decision of Registrar of the C-Board precinct in denying to the appellant the right to register as a voter.
Now the facts of this case are found for the most part in the stipulations that counsel entered into in the Superior Court, by which they submitted to Court the case to the judge without the intervention of the jury, for decision upon about 21 findings of -- of 21 stipulations as to what the facts were.
The facts indicate that the appellant had gone before the registrar of the C-Board precinct on the 22nd day of June 1957 and asked for registration as a voter.
The registrar offered to give the appellant a literacy test which the registrar insisted she was required by law to give to all applicants for registration and the appellant declined to take the literacy test contenting that the literacy was unconstitutional by the rights that she had and which (Inaudible) to her by virtue of Fourteenth, Fifteenth and the Seventeenth Amendments to the Constitution of the United States.
From the registrar's denial on 22nd day of June 1957 to appellant of the right to register, the appellant took the appeal provided by the statute which is North Carolina General Statute 163-28 to the Board of Elections.
Board of Elections heard the appellant's appeal on the 28th day of June 1957 and also declined to register the appellant upon her failure to submit to the literacy test or at least to the educational test provided by the statute.
From the decision of the Board of Elections the appellant found herself in the Superior Court where, as I have stated for the -- all of the facts boil down in 21, stipulations in which counsel entered into, which are found in record here as to what the facts of the case were.
Now the -- prior to this proceeding which began with the registrar in the C-Board precinct in June, there had been a hearing and a trial by a three-judge district -- United States District Court and which opinion is reproduced I believe in the brief here of the -- the brief amicus curiae of the Attorney General and which it referred to in all of the briefs before the Court.
That case is called Lassiter versus Taylor.
In that case the Court had ruled that where the appellant who is the same appellant before this Court, had said that and had claimed that the constitutional provisions of North Carolina provided for the educational test and statutes provided by the educational test were offensive to the rights under the Constitution of the United States, that the section of the constitution involve which is Section 6 -- Section 4 of Article 6 of the Constitution of the United States was unconstitutional when written, when enacted, and of course it was enacted in 1902.
Now the Court provided in that judgment that it was stayed in a further investigation as to the matter or any further inquiry into the case until plaintiff had gone into the state court to get an interpretation upon some new state laws that had been written while that action was pending.
One week before the district court sought to rule upon the matters which plaintiff had placed -- initiated in the district court pertaining to the constitutionality of the literacy test and the applicability of the same to her, the General Assembly of North Carolina had rewritten the statutes involved doing nothing to the constitution provision but had rewritten the statutes in which they had taken out certain language in statutes such as that an applicant for registration would have to satisfy the registrar as to his quantification, they had put in certain appeal mechanism and had provided that from the registrar's decision there would be appeals to the board and also the Superior Court of the county.
It was -- these administrative remedies that the federal court referred to when it said that it was stay execution or it would stay further proceeding in the case of Lassiter versus Taylor until the plaintiff had exhausted the administrative remedies provided under North Carolina General Statute 163-28 as revised and as rewritten just seven or eight days prior to the convenience of the Court to hear the case.
Justice Charles E. Whittaker: (Inaudible)
Mr. Samuel S. Mitchell: Yes.
Justice Charles E. Whittaker: (Inaudible)
Mr. Samuel S. Mitchell: That is the end of that opinion.
Justice Charles E. Whittaker: (Inaudible)
Mr. Samuel S. Mitchell: That's the older part of the opinion.
Justice Charles E. Whittaker: (Inaudible)
Mr. Samuel S. Mitchell: That that's the way that order reads of course in staying that -- under that order the Court cited the case of CIO versus Windsor, the case of CIO versus Windsor at 353 United States 364 in which a similar state had been entered.
There the Court had stayed its jurisdiction in order to allow the appellant to going into the state court to get an interpretation of the state law under the state constitution.
The appellant in going into state court to get that interpretation, only got the law interpreted as the state constitutional (Inaudible) without presenting to his state court the federal issues that he was -- that he was raising.
And when -- he then returned to the federal court after having submitted his state issues, and his state issues only to the state court, while the court so held that he should have presented the entire matter to the state court and that the state court should have had an opportunity to not only pass on the state issues, but also on the federal issues.
Justice Charles E. Whittaker: (Inaudible)
Mr. Samuel S. Mitchell: That's exactly right.
Justice Charles E. Whittaker: (Inaudible)
Mr. Samuel S. Mitchell: Now we didn't do that Your Honor.
What we did is to present the entire case to the state tribunal and then from the state tribunal's decision we brought the appeal here.
This appeal here is taken directly from the opinion of the North Carolina Supreme Court's decision which was --
Justice Charles E. Whittaker: (Inaudible)
Mr. Samuel S. Mitchell: Right.
If it pleases the Court, we may have misinterpreted CIO versus Windsor, but our understanding was that what this court was asking action is that you give your state court a full opportunity to pass upon your state -- upon all of your issues, both state issues and federal issues.
That under the doctrine of the -- that the Court is now pursuing of abstaining from interfering with the state tribunes and their handling of cases, that the Court wanted the state court to fully exhaust all of the possibilities in the case, federal and state before the federal tribune should intervene.
Now following that through and taken what we thought to be the dictate in the CIO case there, we invoked the jurisdiction of the Supreme Court of North Carolina and it is from that opinion that the appeal here is taken.
Justice William J. Brennan: (Inaudible) en banc back to the district court --
Mr. Samuel S. Mitchell: That and the CIO -- after this CIO versus Windsor we weren't sure of what to do there.
Actually we wondered if we hadn't noted and asked this Court for a review, then exactly where our case would be.
Justice William J. Brennan: I think though I am perfectly (Inaudible)
Mr. Samuel S. Mitchell: What did you say?
Justice William J. Brennan: (Inaudible)
Mr. Samuel S. Mitchell: That's exactly what we felt, because both of those cases we have read them over and over and we still don't get too far with it.
Unknown Speaker: (Inaudible)
Mr. Samuel S. Mitchell: I think it, as far as the Fifteenth Amendment is concerned, the argument that the appellant makes is this, that the North Carolina constitution provisions which have to do with the -- and which require the educational test in 1902 when it was passed provided that all people would take -- would submit to that test except those people who either voted in 1868 or whose lineal decedents voted in 1860.
I believe the exact text of that constitutional provision is found on page seven to page eight of our brief.
Justice Felix Frankfurter: Would you mind stating if it wouldn't interrupt your planned argument, what it is you are complaining of?
Are you complaining that North Carolina can't pass -- can't have a literacy test or are you complaining or and are you also complaining that it operates the literacy tests against the Negroes and not against whites, is that what you are complaining?
Mr. Samuel S. Mitchell: Well our contention is more or less a combination of both and yet not quite in the fashion in which it has been stated.
We are contending this firstly, that the educational test for voters is a heavier burden on the Negroes in North Carolina than upon the white.
Justice Felix Frankfurter: But not that it is actually enforced against Negroes and not against whites you don't do that.
Mr. Samuel S. Mitchell: No, but here is what they did.
They devised a scheme by which in 1902, from 1902 to 1908 the idea was that all Negroes would be subjected to literacy tests and no whites.
Beginning -- after 1908 a few whites or at least those whites who would register after 1908 according to the wording of the statute, along with all the Negroes would continue -- would have to submit to literacy test, it was a process of then diluting the discrimination, and we start in 1902 to 1908 with total discrimination.
Beginning with 1908 we dilute that discrimination and we just keep right on diluting it and I suppose the plan would be as one day that everybody would be equal after years of tests for all of the people who had originally qualified for their franchise under the grandfather clause had passed on.
But now we are saying this, two-folds, number one that the very process of setting -- that was set up, set in motion in 1902 and that is still effective today --
Justice Felix Frankfurter: Now is -- was that a -- to most, not most states but many states and other certain parts of the country, the constitutional provision, was that a constitutional provision?
Mr. Samuel S. Mitchell: That was a constitutional provision.
Justice Felix Frankfurter: Now, today 1959, is there a discriminatory process by virtue of your voter's legislation whereby colored citizens are subjected to a literacy test and white voters, any part, any fraction are not subjected to a literacy test, statutory, I'm not asking you whether under the statute enforced in North Carolina, by virtue of which the exercise of a franchise has been determined, today is there discrimination because of race or color?
Mr. Samuel S. Mitchell: Well we have to yes to that when you say in the exercise of the franchise for this reason.
Although the statute provides that everyone who becomes a voter today would have to come in through this educational test, we still have the process of giving the franchise to people who were quiet between 1902 and 1908 --
Justice Felix Frankfurter: The statute merely deals with future voters as of what date?
Mr. Samuel S. Mitchell: The statutes -- the new statute that we have was enacted in April the 12th, 1957.
Justice Felix Frankfurter: Well does that mean that only after April the 8th, 1957 white voters must also pass a literacy test?
Mr. Samuel S. Mitchell: No, I qualify that by saying this; that, that the statute which was enacted to implement the constitutional provision in 1902 which took effect then, provided that everybody would take the educational test beginning in -- after December 1908.
Justice Felix Frankfurter: So since 1908 there has been no discrimination because of color, is that right?
Mr. Samuel S. Mitchell: Well Your Honor we wouldn't be here if there was, if that were the case.
Justice Felix Frankfurter: Some people were here --
Mr. Samuel S. Mitchell: By that --
Justice Felix Frankfurter: (Inaudible) 101 years old, and they become old folks in North Carolina.
I just want to know what it is precisely that you are complaining of, whether that a state can't impose a literacy test, whether it as a practical thing, because of certain educational advantages or disadvantages, colored people are hit harder than white people or whether as a practical result or whether by statute in the operation of constitutional statute, having nothing to do with educational advantages, white people have immunities which colored people have not.
Mr. Samuel S. Mitchell: Well now, I want to say this that we strenuously urge that the mere presence in the statute and in the constitution are these provisions by which we constantly make reference to what was prior to 1860, tends to place a heavier burden on the Negro resident, of the Negro applicant for the vote, for the simple reason that the registrar and I think its only natural would see to it that since he is of that group, that they had such stigma against and that they suspected in 1902 that he undergo a more rigorous examination.
Justice Felix Frankfurter: You mean he gives you a harder piece of reading or is expected to read with less flaws or things like that?
Mr. Samuel S. Mitchell: That's the purpose, we think that --
Justice Felix Frankfurter: Not that the statute requires it, but the psychological impact would be such, is that it?
Mr. Samuel S. Mitchell: We insist on that Your Honor.
Chief Justice Earl Warren: Mr. Mitchell do you have permanent registration down there or must you register periodically?
Mr. Samuel S. Mitchell: Now that is another instance in which we think the discrimination went above.
You have permanent registration only of people who registered between 1902 and 1908.
You can have new registrations as often as a County Board of Elections or the State Board of Elections will call for.
Chief Justice Earl Warren: And they do call for them periodically?
Mr. Samuel S. Mitchell: They call for it often, I wouldn't say exact -- it can vary according to county.
Chief Justice Earl Warren: Yes.
Mr. Samuel S. Mitchell: So once you have registered and you qualified under the education test that does not mean that you won't ever have to do it again.
Chief Justice Earl Warren: All of those --
Mr. Samuel S. Mitchell: Who qualified under --
Chief Justice Earl Warren: All those who came in under the grandfathers clause between 1902 and 1908 are perpetually registered and don't have to register again, where all those who did not come in at that time must register whenever the county registrars require a general registration.
Mr. Samuel S. Mitchell: That's right, in other words they must take the test, they must again be examined.
Now and that's true also for people who move about from one county to another county.
People who are permanently registered and moving about, they undergo no inconvenience because they can call upon their permanent registration.
For those people who came in under the educational test, when they move from place to place, there is no provision in statute and whatsoever that they can move without registration
Justice Felix Frankfurter: May I ask you this Mr. Mitchell, you are also familiar with the case of Yick Wo, an old case --
Mr. Samuel S. Mitchell: That's right.
Justice Felix Frankfurter: -- in which on the face of the statute it looks alright, but the way the health inspectors actually enforced it, it worked all wrong.
Now it is your claim that is that kind of a thing?
Mr. Samuel S. Mitchell: We think it is Your Honor.
Justice Felix Frankfurter: Very well.
Well that would require -- and you know it that case, it was established by proof, that it operated discriminatorily, although everything was fair on paper.
Now is that your kind of a case?
Mr. Samuel S. Mitchell: We have -- there is no evidence in the record as to how and what incident of operation the statute is.
Now in that aspect, the two cases, well we are not like Yick Wo because I quite agree that in that case they did go to, look at all of the laundries that they had there in that area to show that the Chinese laundries were never allowed to be in wooden frame buildings, whereas the other laundries were from time to time.
Justice William J. Brennan: Then I don't follow Mr. Mitchell if -- what's the basis upon which you just answered Mr. Justice Frankfurter described, this is a Yick Wo type --
Mr. Samuel S. Mitchell: No he asked me would I -- I thought he asked me would I say that you would have discrimination here as you had it in the Yick Wo case, I've added that --
Justice William J. Brennan: But you did not present the case to us as such.
Mr. Samuel S. Mitchell: We don't have that case as such here.
Justice William J. Brennan: And you're presenting it on the face of the statutes, are you?
Mr. Samuel S. Mitchell: We are presenting on the face of the statute, under stipulations that we that we entered into in the trial court which included in the opinion that the State Supreme Court issued in that.
Justice Felix Frankfurter: I notice in the stipulation of finding of facts, that the finding of facts, in reading that, I got the impression that the preoccupation of the (Inaudible) certainly was and the literacy test as such offends the constitution.
Mr. Samuel S. Mitchell: We have made that argument Your Honor.
I believe that is our argument too in our brief.
Now it wasn't so particular with -- it wasn't so particular that a literacy test as such, but the type of test we have here.
Now the North Carolina constitution requires that you be able to read and write in a section of the state constitution.
Justice Felix Frankfurter: You mean out of your memory or dictated to you?
Mr. Samuel S. Mitchell: It says that you be able to read, well --
Justice Felix Frankfurter: Read, for that you must have the document before you.
Mr. Samuel S. Mitchell: Read and write in a section, now of course the practice in there is simply this in that there is no way in order -- that there is nothing in the statute that tells a registrar what kind of test he is supposed to give.
Justice Felix Frankfurter: But you won't be have to have something -- he would have to give you the printed matter to the voter to read.
Mr. Samuel S. Mitchell: To read.
Justice Felix Frankfurter: Now secondly, as to writing.
Is it that he must on his own remember some provision?
Mr. Samuel S. Mitchell: Well I'm assuming that it means that registrar will read and you will write, what he reads.
Justice Felix Frankfurter: You will write, he dictates.
Mr. Samuel S. Mitchell: That's the assumption, however that's an assumption and due to the fact that there is nothing, there are no standards in the statute whatsoever to tell --
Justice Felix Frankfurter: And there are some provisions in your constitution that it's more (Inaudible) -- that it's easier to take down than others, is that what you say?
Mr. Samuel S. Mitchell: That's true, that's true and we certainly think this too, that you've got words in the state constitution that only lawyers would know anything about and some of them come -- lawyers don't know too much about.
Justice Felix Frankfurter: Well do they also subject them under the statute to an examination as to what the provision means?
Mr. Samuel S. Mitchell: The practice is that because of this registrars will insist that if you -- that you tell -- that you be able to give a meaning, especially where there is a word mispronounced, or where there is a word misspelled when you're writing from the dictation.
Justice Felix Frankfurter: Is it my fault that I didn't get complaint from your complaint or from the fact?
I didn't derive from it that voters were cross examined as to what some difficult provisions means.
Mr. Samuel S. Mitchell: Well they --
Justice Felix Frankfurter: That would make a lot of difference to me.
Mr. Samuel S. Mitchell: That maybe our fortune.
Justice Felix Frankfurter: I'm not -- no fault, but it's just a question.
Mr. Samuel S. Mitchell: Yeah, well --
Justice Felix Frankfurter: For the record and what the pleadings present.
Mr. Samuel S. Mitchell: The pleading, in this the -- there were no pleadings in this case.
This was a case that was brought pursuant to the mandate of the district court, that we exhaust the administrative remedies in the state.
Administrative remedy in the state which is found in the statute doesn't provide for the filing of any papers and of course none were filed, because we went through the remedy as it was written.
Justice Felix Frankfurter: My question merely intended to indicate Mr. Mitchell that if these various operating discriminations take place, I for one wouldn't get it from what appears in this record.
Mr. Samuel S. Mitchell: On the other hand we say this that because of the looseness and the vague language that's used in the statute, that and especially in a case that had been interpreted before by the State Supreme Court twice, it has been before the State Supreme Court twice on the same statute that, that alone as we see it does place an applicant for the franchise at undue disadvantage.
Justice Felix Frankfurter: Are you suggesting that from the opinion of your Supreme Court the registrar would feel entitled to cross examine perfectly -- well this petitioner, this appellant or some very worthy citizen; nice, good, honest, simple, even wise (Inaudible) even wise who aren't very good at expounding legal provisions and that under the opinion of your Supreme Court, the registrar may make life impossible for such a person as I've indicated, am I to get from the opinion of your Supreme Court?
Mr. Samuel S. Mitchell: That's what we think it is, of course this, we don't think the statute provides that you are not going to register unless you take the test, and that the statute provides that the registrar must give it.
Justice Charles E. Whittaker: (Inaudible)
Mr. Samuel S. Mitchell: The statute doesn't require any interpretation Your Honor but he has been questioned as to whether or not it was ever done.
I merely went outside of the record I suppose in answering this question, but that's certainly is the situation.
Chief Justice William O. Douglas: Very well.
Argument of Beverly Lake
Mr. Beverly Lake: Mr. Chief Justice, in the minute or two remaining this afternoon I would like to clear up some errors in counsel for the appellant's conception of the North Carolina law.
There is no permanent registration in North Carolina.
In the case of Clark against Statesville which cited in our brief I think volume 130 North Carolina decided in 1905, nine years before this Court's decision in the Gwen case, the North Carolina Court had that question before it and said flatly that the grandfather clause did not provide permanent registration, that a person who claimed the right to register under the grandfather clause must reregister every time, a re-registration is ordered in the state.
Now at that time as I say nine years before the decision of this Court, in the Gwen case it was thought that were two avenues to registration in North Carolina; one was by the literacy test, one by the grandfather clause.
Justice Potter Stewart: Quite apart though Mr. Lake from the grandfather clause or the literacy test as far that goes, is there any such thing in your state as permanent registration?
Mr. Beverly Lake: No sir there is not under this decision of the Court.
Justice Potter Stewart: For example, the state where I used to live if you registered and then voted frequently enough you never had to reregister; you don't have anything such as that, do you?
Mr. Beverly Lake: We do not have that in North Carolina, no sir.
Chief Justice Earl Warren: Mr. Lake may I ask you this question, to those who came under the grandfather clause, between 1902 and 1908, have to take a literacy test everytime they register or can they be registered under the grandfather clause again?
Mr. Beverly Lake: It is our position now sir and I of course go into that in detail tomorrow, it is our position that certainly since the 1957 Act there is no question about that.
Chief Justice Earl Warren: Well let's take it beforehand, let's take it before 1957 when this proceeding started.
Mr. Beverly Lake: So far as the statutory provision is concerned yes Your Honor.
Now it is our view, certainly in view of the decision of this Court in the Gwen case, that the grandfather clause was unconstitutional, we are not here undertaking to defend the grandfather clause.
Justice Felix Frankfurter: As against --in favor of anybody?
Mr. Beverly Lake: Yes sir.
Justice Felix Frankfurter: In favor of anybody?
Mr. Beverly Lake: We say that --
Justice Felix Frankfurter: Does that mean that nobody in North Carolina today can vote, and by simply saying that he was born whenever he was born, and get registered.
Mr. Beverly Lake: Let me put it his way Mr. Justice Frankfurter.
No one in North Carolina can do that legally.
Now I'm not here saying that on one in North Carolina ever votes illegally, I can't say that, I'm sure that's not what you mean.
Justice Felix Frankfurter: (Inaudible) legally.
Mr. Beverly Lake: That's right, the law of North Carolina today is that every person presenting himself for registration must be able to read and write any section of the constitution of North Carolina.
Justice Felix Frankfurter: And if any registrar either doesn't give the test or disregarded it, would be violating his oath of office, is that it?
Mr. Beverly Lake: Yes.
Chief Justice Earl Warren: Not since 19 --
Chief Justice William O. Douglas: Since 1957.
Mr. Beverly Lake: That is -- that was the date on which the statute was passed Your Honor.
Justice William J. Brennan: And this applies, I just like to be very sure, to all white voters who registered between the years 1902 and 1908.
Mr. Beverly Lake: Yes, to this extent Mr. Justice Brennan.
I assume and it has to be an assumption I do not know, I assume that there has not been in every county in North Carolina since 1957 a general re-registration, but in every county where there has been a re-registration since 1957, the literacy test applies to everybody and of course in the other counties where there is a re-registration that would be throughout.
I will continue there tomorrow.
Chief Justice Earl Warren: Very well.
Argument of I. Beverly Lake
Chief Justice Earl Warren: Number 584, Louise Lassiter, Appellant versus Northampton County Board of Elections.
Mr. Lake, you may proceed.
Mr. I. Beverly Lake: Mr. Chief Justice, before getting in to our prepared argument, there are two or three other inaccuracies in the argument yesterday by the appellant to which I should like to address the attention of the Court.
In response to a question by Mr. Justice Frankfurter, counsel for the appellant made the statement as I recall about the doctrine of Yick Wo against Hopkins has application to this case.
In the opinion of the three-judge federal court to which appellant first went which opinion is set forth and fold in the motion to dismiss and in the brief filed as amicus curiae by the Attorney General of North Carolina.
The three-judge court said this and this hearing was just two months before the application to the Northampton County Board out of which this present appeal arises.
According from the three-judge court, at the hearing, it was shown without contradiction that the literacy test was applied by the registrar to white persons and negroes alike without discrimination and the cross examination of the three Negro women who were denied registration by the registrar, amply established adequate basis for the denial if their literacy test is valid.
Counsel for the appellant represented her in that case, following that decision, the appellant under their guidance apparently returned to the Northampton County Board and applied again for registration under the 1957 Act.
In this record which consists of stipulated facts, stipulated by counsel for the appellant who represented her in the lower court and before the Board.
There is not a shadow of suggestion of any unfair arbitrary discriminatory administration of the statute by this Board or by any other election board in the State of North Carolina.
Now of course in this case, I do not speak for the entire State of North Carolina, I represent the County Board of Northampton County which is the defendant in this action.
But in this record, there is no suggestion of arbitrary administration of the statute anywhere in the State of North Carolina.
Counsel for the appellant in his argument yesterday also stated at least in substance, that the Negroes of North Carolina are given more difficult sections to read, more difficult sections of the North Carolina constitution to read than are the white people.
May I refer to the stipulations which are set forth beginning with the Stipulation Number 9 on page 8 of these records.
There, it is stipulated, Louise Lassiter declined and refused to read the proper sections of the said Constitution or any other section thereof.
Section -- or Stipulation 15 on page 9 refers to what happened when she appealed to the County Board of Election from the registrar.
That Louise Lassiter, declined and refused to read the said Board's request -- refused the said Board's request and requirement that she read the profit sections of the Constitution or any other section thereof.
Stipulation 19 that the said Louise -- excuse me, Stipulation 16, that the said Board of Elections upon Louise Lassiter's failing and refusing to read the proper sections of the said Constitution or any other section thereof.
Issued a written order and directed that she be denied registration.
That order is quoted in the record at page 3.
The official order from which this appeal originates states that the Board found as a fact, now skipping down to the middle of the paragraph, it further being found as a fact that the said petitioners refused on June 28, 1957 on the de novo hearing before the Board of Elections to read any section of the State Constitution, she was denied registration.
Now then, on page 9 of the record it is stipulated that the said Louise Lassiter because of her lack of educational qualifications on June 22, 1957 and continuously since that said date until the present date is unable to and has failed and refused to write or read or attempt to write or read any section of the Constitution of North Carolina or any Section of the Constitution of the United States and the English language.
Now, that is the basis for her denial.
Now, in appendix B of our brief, the brief for the defendant Board, I have quoted in full Article VI of the Constitution of North Carolina obviously the purpose is not to pick out a part of the Constitution which is easy to read, that is the part of the Constitution which if any, has application to this case.
And I invite the Court's attention the language of that section, Article VI of the North Carolina Constitution.I will not read it because it is too long.
Chief Justice Earl Warren: Where is it quoted?
Mr. I. Beverly Lake: It is in the appendix B to my brief Mr. Chief Justice beginning on page 23.
The entire Article VI of the Constitution of North Carolina is set forth there in full.
I may recall --
Justice Felix Frankfurter: Into what purpose you invite our attention to that?
Mr. I. Beverly Lake: Simply to show the type of material Mr. Chief -- Mr. Justice Frankfurter which this woman was asked to read.
To show that it is not a material.
Now, I don't know sir that these were the sections that she was asked to read, but these are at least part of the sections that she could have read under the invitation to read any other section of the Constitution.
This is typical of the language in the North Carolina Constitution.
Chief Justice Earl Warren: Well, is this the grandfather clause?
Mr. I. Beverly Lake: That is a grandfather clause, yes, sir which I will come to in a moment which I contend is not the law of North Carolina this time, but if I may pass -- differ that for just a moment --
Chief Justice Earl Warren: Yes
Mr. I. Beverly Lake: -- Mr. Chief Justice.
Justice Hugo L. Black: What do you understand -- Stipulation 19 to me is not exposed over.
Mr. I. Beverly Lake: I understand Mr. Justice Black that to mean that she stipulates that she does not have educational qualification to read or write any section of the Constitution of North Carolina.
Now then, a section of the Constitution of the United States is thrown in the -- I think without any particular connection with this case because there is not the test of her eligibility to register.
I can see that.
But have I answered your question sir?
Justice Hugo L. Black: It seems to me like that stipulation probably means that she can't read or write anything.
Mr. I. Beverly Lake: I would conclude that, yes sir.
May I say sir that I was not representing the defendant at that time the stipulations were prepared.
I have to think that the stipulations are on there on the record.
That's all that I know about.
But I conclude from that, that this applicant is unable to read and write anything or approximately anything.
Justice Hugo L. Black: In the English language -- In the English language.
Mr. I. Beverly Lake: In the English language, yes, yes sir.
Justice Hugo L. Black: Any section of the Constitution of United States in English language.
Mr. I. Beverly Lake: Yes, sir.
Justice Felix Frankfurter: Mr. Lake just as a matter -- forgive me.
Just as a matter of curiosity, are there reliable senses or other reliable statistics which show the percentage of illiteracy in North Carolina both among white and Negroes?
Mr. I. Beverly Lake: I assume --
Justice Felix Frankfurter: So far as you know?
Mr. I. Beverly Lake: -- I assume that they are but --
Justice Felix Frankfurter: You don't have (Voice Overlap) --
Mr. I. Beverly Lake: -- it's purely an assumption.
I do not know.
I know of general knowledge that it is extremely small.
Justice Felix Frankfurter: I should deprive if it were --
Mr. I. Beverly Lake: Yes.
I may say, Mr. Justice Frankfurter that in 1900 the same time when this grandfather clause was first put in to the Constitution of North Carolina.
It was in 1900 under the guidance of Governor Aycock that North Carolina began a tremendous crusade for public education in public schools in North Carolina.
And it has been asserted by the Supreme Court of North Carolina that the literacy test was one of the greatest booms to public education that the State ever had.
Justice Felix Frankfurter: Even on Massachusetts may have heard about Govenor Aycock.
Mr. I. Beverly Lake: Yes, I'm sure of that.
Now, it was suggested at least if not stated that the Negro applicants for registration in North Carolina maybe required to explain difficult sections of the Constitution of North Carolina.
There is nothing in this record to suggest that any voter, any applicant for registration in North Carolina white or Negro has ever been asked to explain any section of any Constitution of North Carolina.
The law does not so state and never has so stated in North Carolina.
And if the counsel for the appellant undertakes to make rebuttal argument, I would like to challenge him to call the attention of the Court to any instance in which that has ever occurred in North Carolina.
Now, this distinguishes the North Carolina statute from the Alabama statute the so-called Boswell amendment, I believe, which was held unconstitutional in Davis against Schmidt because there the statute did require the applicant to explain provisions of the Constitution.
And I believe the lower court held that that was an indefinite standard and this Court dismissed the appeal.
Now, I think surely, this Court will not strike down a statute of the State of North Carolina which on its face is a fair test of one's ability to vote intelligently.
It will not strike down such a statute which the Federal Court of the Eastern District of North Carolina has found to be administered fairly and without discrimination solely on the basis of assertion by counsel outside the record without the slightest bit of evidence to support those assertions.
Now, the North Carolina statute sets up a procedure for an applicant for registration which I submit meets comfortably every possible requirement of procedural due process.
May I review it just a moment?
The first step is that this is a 1957 statute that I'm talking about now, the statute under which this appellant was denied registration.
The first step is that the applicant for registration goes to the registrar of a precinct and there establishes her qualifications to vote including her ability to read and write.
If the registrar turns down the applicant for any reason whatsoever, the applicant has an absolute right of appeal to the County Board of Elections.
There, the applicant is heard de novo promptly, fairly and within 10 days after the hearing, that Board is required by statute not only to make its decision but to give the applicant notice of its decision.
If again the applicant is dissatisfied, the applicant has the absolute right of appeal to the courts and I may say if the County Board finds the applicant is qualified to register then there is no appeal on the other side.
But if the applicant is denied registration by the County Board, the applicant has the absolute right of appeal to the courts of her state and there again she is heard de novo.
In her brief, the appellant complains that this is difficult because there is a right of trial by jury in the superior court just as it is in any other civil action.
Now, surely, this is the first time that anyone has ever suggested to this court that the right to have her case determined by a jury of her (Inaudible) is a violation of due process of law.
From the Superior Court of North Carolina she goes then to the Supreme Court of North Carolina.
But of course going back to the jury trial, this appellant wasn't required to go before a jury.
She waived the jury trial and stipulated the facts.
Her rights have been determined by the courts of North Carolina on facts stipulated by her.
Now, the history of the North Carolina suffrage law and Mr. Chief Justice I'm coming now to the grandfather clause, because I think that is very important.
In 1900 the North -- the Constitution of North Carolina was the one which I shall refer to is a Constitution of 1868.
That Constitution had no literacy test and it had no grandfather clause.
In 1899, the legislatures submitted an amendment to the people of North Carolina which did two things.
First, it abrogated the old Article VI, second it substituted a new Article VI.
The new Article VI contained the literacy test and contained the grandfather clause of the type later struck down by this Court in Gwin against the United States.
Now, under that -- that of course was adopted.
That act of the legislation which submitted that amendment stated this amendment is submitted as an entire indivisible plan of suffrage and the whole must stand or fall together.
Now under that, the same legislature -- I believe the next legislature -- that is after the amendment went into the Constitution.
The legislature then adopted what we call General Statutes 16328, the predecessor of the statute from which this case arise.
That Section 16328 provided a literacy test but it went further than the present statute, it provided that the applicant must establish her ability to read and write to the satisfaction of the registrar.
It then contained the grandfather clause exception.
And again, the legislature, the same legislature adopted a companion statute, 16332, which is relied upon in the brief of my opponents.
That Section, 16332, set up the mechanics for registration under the grandfather clause.
That's all that it did.
Now then, we come on to Clark against Statesville, the Supreme Court of North Carolina there held in 1905 as I stated to the Court yesterday that the grandfather clause did not provide a permanent registration.
It provided a list of people eligible for registration.
Now, that may sound like the same thing.
I'm coming back to that in just a moment.
The Court held in the Clark case, that every time there is a re-registration of voters in North Carolina, everybody must re-register grandfather clause electors and others.
Now, there were two supposedly that time, two roads to registration, one was by way of the grandfather clause, one was by way of a literacy test.
The 1957 Act, even if we can assume that the Gwin case did not have that effect because I think it did.
The 1957 Act closed forever the grandfather clause road to registration.
So today, the law of North Carolina --
Justice Felix Frankfurter: -- (Voice Overlap) statute so far as your statutes are –- directions go.
And if the grand – if there is a grandfather clause in terms in the statute and the only way that's taken out as you indicate by enforcing the Gwin case.
Is that it?
Mr. I. Beverly Lake: The Constitution you mean Your Honor?
Justice Felix Frankfurter: (Inaudible)
Mr. I. Beverly Lake: That --
Justice Felix Frankfurter: The 1957 statute -- my comment on that was that that road is closed by the statute --
Mr. I. Beverly Lake: That is closed by statute.
Justice Felix Frankfurter: -- which it may be opened tomorrow so far as your constitution is concerned but you say it's barred again by the Gwin case.
Mr. I. Beverly Lake: Barred by the Gwin case.
Justice Felix Frankfurter: Now, the only way you'll argue -- the only way that the grandfather clause or the grandfather ideas that have any efficacy, adverse -- the appellant is its state official disobey the law of this Court.
Mr. I. Beverly Lake: Not -– yes, Your Honor.
Not only the law of this Court as I'm going to point out in a moment.
I think that is necessarily implicit in the very decision of the North Carolina court from which this case arises and I'll show you in just a moment if I may --
Justice Felix Frankfurter: You think that have been a little more (Voice Overlap) --
Mr. I. Beverly Lake: I would --
Justice Felix Frankfurter: -- if I may say.
Mr. I. Beverly Lake: Well, I share that view, Your Honor.
But I think that it does come to that conclusion in state reply.
Now then, we come on now to the case from which this appeal arises.
I'll pass over the details of the 1945 amendment to the North Carolina Constitution because those details are inconsequential.
In the North Carolina Court, the opinion from which this case arises shows that the appellant there argue that the 1957 statute violates the North Carolina Constitution for this reason; it is a well established rule in North Carolina of course, that the legislature cannot add to the qualifications for voting which are prescribed to those prescribed by the state constitution.
That has long been the rule in North Carolina.
Now, the appellants argued below that the North Carolina Constitution of the amendment of 1902 failed, because of the grandfather clause.
The entire amendment, being indivisible, went out the window so we came back to the 1868 Constitution.
Since that Constitution did not have a literacy clause in it, they contend that the 1957 statute was beyond the power of the legislature.
It was in an answer to that contention that the North Carolina Court said what it did about the 1945 amendment.
They say that the 1945 amendment, while admittedly, it did not specifically relate to the grandfather clause.
The 1945 amendment undertook to readopt the entire Article VI as it then read in the Constitution.
Now, I too wish Mr. Justice Frankfurter that the opinion had been stated in somewhat different terms.
But the clear effect of the opinion is that the 1945 amendment undertook to readopt the Article VI of the Constitution and freed whether it was already free or not, we won't go in to it, I think it was, said that in 1945 amendment, freed the general assembly to pass the 1957 statute, so the 1957 statute is clearly the law in North Carolina today unless it conflicts with the Constitution of the United States.
Justice Felix Frankfurter: Well, if -- however obscurely, North Carolina Supreme Court may have spoken it and in fact gather from it that the legislature has the power that it exercised in 1957 insofar I take it by United States Constitution is concerned, none of our business whether the North Carolina Supreme Court did or didn't disregard your constitution.
Mr. I. Beverly Lake: I wouldn't put it in those terms but I agree with your conclusion, Your --
Justice Felix Frankfurter: But that's what it amounts to, doesn't it?
Mr. I. Beverly Lake: Yes, yes.
I think the that --
Justice William O. Douglas: I am puzzled --
Mr. I. Beverly Lake: -- that --
Justice William O. Douglas: -- I'm puzzled by the -- some statements of fact on page 26 of the appellants brief which seem to indicate to mean that the existence of this grandfather clause which is preferential in operation to the white people has projected itself down into May 1959 or whenever this writ was written to give a body of permanent -- permanently registered under a standard that is -- that the Court has held to be unconstitutional --
Mr. I. Beverly Lake: I think --
Justice William O. Douglas: -- so that there is in fact an existing -- and operating existing discrimination.
Mr. I. Beverly Lake: That is her assertion, Mr. Justice Douglas.
Justice William O. Douglas: Yes.
Mr. I. Beverly Lake: I think that's clearly what she asserts but it is contrary to the fact.
It's contrary to the law of North Carolina.
Justice William O. Douglas: Well, that's the thing that I wanted to have you talk a little bit about because I'm a little confused on that.
There are no permanent registrations under the grandfather clause?
Mr. I. Beverly Lake: There are no permanent registrations in North Carolina under any clause, under the decision of Clark against Statesville in 139 North Carolina.
There just aren't any permanent registrations in North Carolina.
Now, of course back in the days of long ago, there were people registered under the grandfather clause.
I'm not able to say, as a matter of fact whether some of those people now vote or not, but if they do, there is no legal right in those people to vote in North Carolina.
Now, may I just say this with reference to the decision of the North Carolina Court in this case?
Counsel in her -- in their brief say that the North Carolina Court has never recognized the invalidity of the grandfather clause of course it did in this very case because they could not have sustained on the -- forgetting United States Constitution, they could not have sustained the 1957 Act under the North Carolina Constitution unless the grandfather clause is a nullity because of the very doctrine that she argued in the North Carolina Court.
That the legislature cannot add to qualifications imposed by the Constitution.
The Constitution says -- the statute says everybody must be able to read and write.
The Constitution says grandfather clause folks don't have to.
So the statute is clearly in conflict with the Constitution and the Court sustained the statute.
Justice Potter Stewart: Mr. Lake (Voice Overlap) you made clear that there's no permanent registration in North Carolina.
Mr. I. Beverly Lake: That's correct.
Justice Potter Stewart: How frequently must the people register in order to vote?
Mr. I. Beverly Lake: That might -- I'm speaking only from recollections.
There is no state by law on that except that that can be ordered county by county.
I know in my own county for example there have been several in recent years.
I would say perhaps every three to four years perhaps.
Justice Potter Stewart: Is it within the discretion of the County Board of Elections?
Mr. I. Beverly Lake: My recollection is that it is.
Justice Potter Stewart: So a county and the Board of Elections could go over 20 or 30 years without ordering a registration?
Mr. I. Beverly Lake: There are -- again, I -- I cannot speak with assurance but I believe that there have been statewide re-registration but I can't answer that positively.
Justice Felix Frankfurter: Your answer to the question is, the case in the District Court was civil argument, is it?
Mr. I. Beverly Lake: I take it that it is.
Justice Felix Frankfurter: If they go back, if -- if it is alive, may they -- may the appellant in that District Court now offer proof can be allowed to show that in fact, although everything you say is so, in fact, there is the equal situation that leads to this county or that county, would that be opened either under the pleadings as they are or with the right to amend the pleadings.
Mr. I. Beverly Lake: I can't --
Justice Felix Frankfurter: If -- if what you say is sure, at least to my view if what you say is so under the law then as a matter of law the statute doesn't defend the federal constitution because it doesn't respect to make a discrimination.
I think as a matter of fact it makes discrimination the result maybe the same as far as the appellant is concerned.
My question is whether that issue is open on the return of the state -- should it be returned to the District Court?
Mr. I. Beverly Lake: Mr. Justice Frankfurter, I was not the counsel in the federal court case.
So, again, I'm speaking only from the printed record.
I don't know the answer to that.
I suppose that she could but certainly she can do this.
She can go any days, any time she wants to.
She can go back to the Board and apply again for registration and start and prove in the state court such discrimination.
She is not precluded forever from proving anything she can prove.
Chief Justice Earl Warren: Mr. Mitchell.
Argument of Samuel S. Mitchell
Mr. Samuel S. Mitchell: May it please the Court.
I believe I have about two minutes and at that time I just want to make reference to two things that seem to be getting in our way here.
Number one is this, the counsel for appellee says that the permanent registration situation doesn't exist in North Carolina be just that he said as of 1957.
Now, we want to point out this that the statutes that set up the permanent registration of the exemptions in 1900 where general statutes 163 Section 32 and Sections that follow Section 32.
In revising and in rewriting the registration statute in 1957, the journalist seemed only purported to rewrite Section 28 which only dealt with the literacy test.
They did not purport to repeal the Section 32 and the Section that followed that.
They did not attempt to rewrite those sections.
They left those sections fully intact.
Also, the Court in its opinion below in passing the appellant's case made no allusion whatsoever to the fact or to this any supposition that permanent registration is unconstitutional and can be.
In a prior decision in 1936, all the Court said, all our State Supreme Court said was, that we all not to worry about that because the time for registering under those statutes has left so we have to wait for this situation.
In the revival that the Court made of the -- of the constitution provision, in the opinion below, what the Court did was to revive the whole business, grandfather clause and all and appellate admits that in his brief.
They revived the entire business except the indivisibility clause.
Now, we say that this business of the repeal can be inferred because of other decisions in our court which say that a general -- such as the repeal of Section 28 which dealt with the literacy test.
There was a general repeal there which says that all laws inconsistent would be repealed but now in State -- our court says that that clause does not repeal other sections unless it is just uninterpretable that the two sections could stand and that is not the situation that we have here.
Justice Felix Frankfurter: Are you saying -- may I ask a question?
Are you saying that the Supreme Court of North Carolina in this case as ruled or taken for granted or recognized that the grandfather clause of the old constitution exists in 1958 or 1959 (Inaudible) is that what you are saying?
Mr. Samuel S. Mitchell: We are saying that Your Honor.
Justice Felix Frankfurter: And that would appear from a reading of that opinion?
Mr. Samuel S. Mitchell: That will appear from the reading of the opinion.
From the reading of the opinion what they said that the whole business, all of Article VI of the State Constitution came forward with the exception of the indivisibility clause that was put in --
Justice Felix Frankfurter: But in the indivisibility clause included that the (Inaudible)
Today we would call it a packet.
The packet is broken as I understood --
Mr. Samuel S. Mitchell: That's -- the thing about it was in 1902 they said that if anything about the whole plan is unconstitutional then the whole plan would fall.
There will be no amendment.
But now in this revival, in the court below, what they did, they said that they merely took recognize -- they merely took out the indivisibility clause in that state.
Justice Felix Frankfurter: The indivisibility clause has significance because there was a changing feature, namely, the grandfather clause and this Court in Gwin not only knock out the grandfather clause but said if it's project of an inclusive provision then the included thing goes to the indivisibility so far as I understand it.
To knock that out means to knock out the thing whereby it would all fall and I suppose that was the response of the Gwin case to this Court.
That might have --
Mr. Samuel S. Mitchell: I see.
Well, the indivisibility clause in the North Carolina Constitution, merely have reference to all the provisions in that plan.
Now all they said in the opinion below is that the whole plan came forth and the indivisibility clause was no longer necessary.