ANDERSON v. MARTIN

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Argument of Jack Greenberg

Chief Justice Earl Warren: Number 51, Dupuy H. Anderson, et al., Appellants, versus Wade O. Martin.

Mr. Greenberg.

Mr. Jack Greenberg: May it please the Court.

This is an appeal from the United States District Court for the Eastern District of Louisiana which denied preliminary and permanent injunctions sought by the appellants.

This was a statutory three-judge court because the appellants sought an injunction against state officers seeking to enjoin them from enforcing a state statute.

The opinion below -- the decision below was 2-to-1.

The majority opinion by Judges West and Ellis voting for denial of the injunction and the dissenting opinion by Judge John Minor Wisdom of the United States Court of Appeals for the Fifth Circuit for granting the injunction.

Judge Wisdom also dissented on the denial of the permanent injunction.

The statute which the appellants sought to enjoin is Louisiana Revised Statutes Section 18-1174.1, which was enacted in 1960 along with 35 other laws bearing on interracial relations which are set forth and discussed in a law review article in the Louisiana Law Review by Professor Wollett.

And this statute essentially requires that in every application or notification for candidacy in state or local elections or any certification of a candidate for office and on the ballot, the race of the candidate be set forth, whatever that race may be.

And the race must be set forth in type the same size as the type of a candidate's name.

The facts in the case are not at all in dispute, they are derived from the complaint and the answer in a brief stipulation, all of which appear in the record.

The majority opinion rests on two principle grounds.

First, appears on page 32 of the record and that is that Negro candidates were treated on the same basis as white candidates that is, all candidates had to set forth their race following their name on the ballot.

And in so holding, the majority below distinguished the case from the only other case that deals with such a statute.

In McDonald against Key, a Tenth Circuit decision and the Court held that in McDonald against Key, it was required only that Negro candidates state their race following their name on the ballot whereas in this case, all candidates are required to do so.

And then secondly, on page 31 of the record and also elsewhere in the opinion, the Court held that it was not disposed to create a shield against the brightest light of public examination of candidates for public office.

Now, the appellants submit that the majority below was wrong and that Judge Wisdom was right and that Judge Wisdom was right for the very reasons that he set forth in the first two brief paragraphs of his opinion which appear on page 34 of the record, I think adequately summarized his position.

That is that in the eyes of the Constitution, a man is a man, he is not a white man, he's not an Indian, he's not a Negro.

If private persons identify a candidate for public office as a Negro, they have a right to do so but it is no part of the business of the State to put a racial stamp on the ballot.

It is too close to a religious stand that has no reasonable relation to the electoral processes.

Now --

Justice Potter Stewart: The State required that a candidate's sex be put down, male or female, some people are named "Marion" say and they could be either first name.

Mr. Jack Greenberg: I don't know what the --

Justice Potter Stewart: (Voice Overlap) --

Mr. Jack Greenberg: -- reasonable relationship that would have to a qualification for office.

But I don't believe that the Fourteenth Amendment deals with questions of sex or questions of -- of the classic case of whether one is a redhead and so forth in the same way it deals with questions of race.

Race is, I think, narrow, well-established to be an impermissible standard for government action.

In fact, that's just the point we're getting to as the principal reason why we would urge that the statute is unconstitutional, the only reason why this possibly could be put on the ballot.

In fact, the only conceivable reason is so that people go into the polling booth can act upon it so that they can make a racial determination or discrimination.

Justice John M. Harlan: (Voice Overlap)

Mr. Jack Greenberg: And --

Justice John M. Harlan: -- it's a relevant dispute --

Justice William J. Brennan: Go ahead.

Justice John M. Harlan: (Inaudible) is a relevant fact that the voters normally (Inaudible)?

Mr. Jack Greenberg: Would I think it's a relevant fact?

Justice John M. Harlan: Yes.

Mr. Jack Greenberg: I think it -- it possibly might be.

I -- at the moment, I can't think of why it must --

Justice John M. Harlan: (Inaudible)

Mr. Jack Greenberg: Well, I -- I think its --

Justice John M. Harlan: Why isn't a voter entitled to know what he's voting for?

Mr. Jack Greenberg: Well, I -- I think it might be relevant to put the sex of a candidate on the ballot.

I think everyone agrees that race is an entirely different matter.

Justice John M. Harlan: (Inaudible)

Justice Potter Stewart: How about the age of a candidate, would that be constitutionally permissible, the age and nothing else?

Mr. Jack Greenberg: I think under some circumstances, it might be.

I -- I imagine --

Justice Potter Stewart: Under what circum --

Mr. Jack Greenberg: -- it would make a difference if a candidate was so terribly old that he could not carry out the -- the obligations of his office.

I'm -- I'm not entirely sure.

But again, I think all these various standards that possibly might be reasonable or rather different than race which I believe --

Justice Potter Stewart: Well, you -- what I'm trying to get at is that it seems to me that our whole constitutional concept is based upon the assumption of an informed electorate and I suppose you would not disagree with that, do you?

Mr. Jack Greenberg: No, I think that's correct.

I think that's correct.

But I think that the -- the point that I was just about to get to is that the only reason the race is put upon the ballot is presumably so that the voter can act upon it and while voters may make racial discriminations in candidates to whom they vote and while we may think that's unfortunate, there's really nothing that can be done about it.

But that the State as in the Alabama case, NAACP versus Alabama, the State has no business in participating in this determination in playing a part in it just as in that case, Mr. Justice Harlan's opinion, I believe it was held that while members of the general public might discriminate against members of the association, certainly the State had no business in exposing them or in facilitating this discrimination or encouraging it.

Justice Arthur J. Goldberg: Are you arguing (Inaudible)

Mr. Jack Greenberg: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Yes.

Yes, that's correct.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: That --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: That's correct, Mr. Justice Goldberg.

I feel that the State has no business in intruding itself into this process.

That was in -- Barrows against Jackson, it was held the State has no business in encouraging racial discrimination, that this is a facilitation of it that it makes it -- it makes it simpler and it's something that makes it possible.

The State doesn't have something -- no business and no -- no business doing it.

And moreover, this facilitation of making a racial distinction has to be seen in a context of Louisiana law.

There are great body of statutes in Louisiana requiring racial segregation and racial distinction.

This very statute was enacted as 1 of 35 in the 1960 Legislature for that great purpose of the State's public policy and described as such as it appears in the resolution set forth on page 11 of our brief where Louisiana has always maintained the policy of segregation of the races, aware that the intention of the citizens of this sovereign State that such a policy be continued.

Justice John M. Harlan: Supposing, Mr. Greenberg, supposing a State required every candidate for office have his photograph hung in the polling booth, would that be unconstitutional?

Mr. Jack Greenberg: Well, first, Mr. Justice Harlan, I -- I would look to that as not the same thing particularly in a State such as Louisiana where there's a great deal of confusion as to who is a Negro and who is a white person.

A great deal of Louisiana litigation on this reported cases we deferred to.

I would say that in the abstract that might be alright, if we were to follow a stat -- if we're to follow a statute such as this, I think it would obviously be intended to achieve the same result and not perform the same basis.

But that isn't the case here.

In fact, one of the reasons it isn't in the case here, one of the reasons we have this statute is because it isn't the case here, because we have this great body of case law in Louisiana as to who is a Negro and who is a white person.

It -- it is the obvious premise of Louisiana law that Negroes are inferior to white people.

It is a defamation in the State of Louisiana to call a white man a Negro and it's actionable no matter how slight the injury, how innocent the mistake in cases set forth demonstrating that.

To call -- to call one, they would -- to denominate one, a Negro under Louisiana Law calls for a higher standard of proof than its necessary to convict one of crime.

In other words, a higher standard of proof and is necessary to send somebody to the electric chair --

Justice Potter Stewart: I -- I missed what you just said Mr. Greenberg.

What requires a higher standard of proof?

Mr. Jack Greenberg: Well, if there is an issue as in some of the cases we have cited here as to whether one is colored or white, as in the -- the adjudication whether a death certificate is correct which is the particular case that we have cited.

The Louisiana courts have held that a far higher standard of proof is necessary in this -- I just for a moment, like to read the -- the language that they used.

That whereas in a criminal case, one must be convicted beyond reasonable doubt.

In a case involving status of the race, it has to be established "beyond any doubt".

Justice Hugo L. Black: What page was that?

Justice Potter Stewart: As to what?

Mr. Jack Greenberg: That one is a Negro.

Justice Potter Stewart: That one is a Negro.

Justice Hugo L. Black: (Voice Overlap)

Justice Potter Stewart: That one is a Negro --

Mr. Jack Greenberg: (Voice Overlap)

Justice Potter Stewart: -- that one is white.

Mr. Jack Greenberg: That's right.

That's right.

In this -- the particular case that I have in mind is cited in the brief on page 13.

There's a number of cases set forth in the footnote.

This case is State Ex Rel. Rodi versus City of New Orleans.

And the question was whether a -- the State Registrar of Vital Statistics had improperly changed the death certificate from white to Negro.

And the family brought an action to establish that the deceased was really white and not colored and the courts held that he was indeed colored and that the Registrar of Vital Statistics had not made an error and they said that this was established "beyond any doubt" but if it had been established on beyond a reasonable doubt, that wouldn't have been good enough.

And we submit that in a -- in a State where race is treated in this way, where Negroes are treated in such a way in terms of the segregation laws and the resolution of the State and so forth to require someone to put his race on the ballot.

And to state whether he's colored or white is an invitation to the public to act in accordance with the way the State is encouraging it to act with the law of defamation, the law of racial status, the segregation laws and so forth throughout the State.

Justice Potter Stewart: Are you suggesting in -- that in North Dakota, this might be alright?

Mr. Jack Greenberg: No, I think, it would -- it -- it would be equally bad in -- in any State (Voice Overlap) --

Justice Potter Stewart: Well, then what's -- what's the point of this argument?

Mr. Jack Greenberg: The point of this argument is really an a fortiori argument to show that not only are they -- not only are they -- they intruded race since the electoral process but it's not a neutral decision as they're claiming it is.

But it's a -- it's an intrusion into the electoral process to be seen in the context of the public policy of the State denominating Negroes as inferior.

In fact, as North Dakota doesn't do it and I don't think it's ever been suggested that it would or that anyone there was slightly interested in it.

Moreover, we -- we submit that the case calls for the application of the rule that was declared in Bolling against Sharpe, the District of Columbia School Segregation case which reiterated the Hirabayashi and Korematsu cases that classification based solely only upon race must be scrutinized with particular care since it is contrary to our traditions and hence, constitutionally suspect.

And Louisiana has offered no explanation to allay the suspicions.

The only reason offered by the State and the court below is that this will inform the people but they have not set forth any reason as to why the people should be informed as to race.

In other words, they have just restated what is that they have done.

And so we would submit that the State has first of all facilitated and encouraged citizens of Louisiana to make a racial distinction in the polling booth that it has exerted its effort -- exerted a great deal of effort.

In fact, in this term of the legislature passed 35 laws to establish what that discrimination should be.

And that it is offered to no justification except for the fact that it has done this to inform the people as to why it has passed such a law and that for all of these reasons, the statute involved is unconstitutional and the judgment below should be reversed.

Justice Potter Stewart: Does this apply to candidates for all statewide officers as to all --

Mr. Jack Greenberg: To all the States.

Justice Potter Stewart: -- local officers as well?

Mr. Jack Greenberg: Yes, all state and local officers.

Justice Potter Stewart: In primaries and in general election?

Mr. Jack Greenberg: Yes.

These were candidates I neglected to state for the School Board in their particular parish each one in a separate district.

Chief Justice Earl Warren: We'll adjourn now.

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Argument of Jack P. F. Gremillion

Chief Justice Earl Warren: Dupuy H. Anderson, et al., Appellants, versus Wade O. Martin, Jr.

Attorney General Gremillion.

Mr. Jack P. F. Gremillion: Honorable Chief Justice and Justices of the Court, I'm here representing the Louisiana Secretary of State who is charged under this particular act with preparing the ballots.

And as a chief election officer of the State of Louisiana, all of the ballots are prepared by him.

Then they go to the printer.

And then they are placed on the voting machines.

Now, we have voting machines in every precinct in the State of Louisiana and we have had for about -- had for about 10 years now.

They proved very effective and very beneficial on the ballot which is prepared by the Secretary of State, are three things, the man -- the candidate's name, his race and at first, when it -- legislature first prepared ballots who instructed the Secretary of State to prepare these ballots, we found that we had a lot of illiterate people in Louisiana.

There are a lot of people who were registered to vote who couldn't read and write.

And so later on, they put the number on the voting machine.

So, we have three things that appear on the ballot, a number, a name and a race and that is all that is on the voting machine other than the instruction that you got to push this button and switch this switch and so forth.

Now, we have in a Democratic primary -- well, a Republican primary, too, but there's very few Republicans in Louisiana, I apologize for that.

But we're having a primary election on December the 7th in Louisiana.

And of course, I am a candidate for a reelection.

And I reemphasize that in my case, number 20 is my ballot number, my race and my name and that's all that appears on the ballot.

Now, that information, and may it please the Court, is given to the Secretary of State in a form of a qualification paper that the candidate himself must fill out.

On that qualification paper, approximately six things, he signs an affidavit.

He says that I'm a qualified voter, that I possess all the qualifications under Louisiana law, that I'm a registered voter in a certain ward, in a certain precinct.

He says, "I herewith pay the fee which is required by the committee involved.

He also says that I am not a dummy candidate.

He also says that I am not a subversive person as defined under the appropriate section of Louisiana law.

And he also says that I am a member of blank and that candidate fills in his race and it is from that qualification paper that the committee passes on the -- and accepts and they're given to the Secretary of State and from there, he prepares the ballot.

I give you that information so you can understand the -- the Louisiana legal machinery on just how the ballot is prepared.

The question in this case, as far as I'm concerned and I hope the Court, is really a simple one.

It comes down to this.

Can a State require information on a ballot, such as race, for the purpose of informing the electorate?

Can it do that when it treats all of the candidates alike?

Now, is that unconstitutional?

Does it violate any section of the United States Constitution?

I don't think that the First Amendment is involved here because there's no freedom of speech being denied to anyone.

I don't think the Fifteenth Amendment is involved here because no one is being denied the right to vote on account of race.

The only thing that we are concerned with and can be concerned with as a result of this complaint is whether or not it violates the Due Process and the Equal Protection Clauses of the United States Constitution.

The State is, of course, charged with the qualification of voters.

It can pass laws regulating voting.

It can pass laws regulating qualified.

It's within its own spill when it does that.

And it commits no offense to anyone or to the Federal Constitution as long as those laws treat all alike and there is no discrimination.

Now, there's no discrimination in this statute.

We're not involved with a segregation case here.

We're not involved with any reprisals in this matter.

We're not involved with the interest of an individual ballot as against the -- the interest of the State.

There is nothing that prevents or says in the law that a candidate has got to have -- has got to have complete anonymity when he places his name on the ballot box.

The State does not go into the election box and vote.

It's done entirely secret.

And the right to vote is a cherished privilege and should be enjoyed by everyone.

But we must remember and we must appreciate that when a person goes into the ballot box and votes, he has the privilege of discriminating.

He can vote against the candidate because of his race.

He can vote against him because he doesn't like a number.

He can vote against him because he don't like the way he talks or walks or he can vote against him because he's -- it is the incumbent, there's a lot of people that work with everybody on the office.

I hope that's not true on December the 7th of course.

But when a man goes into -- a lady goes into the voting booth, if there's none running for office, he necessarily must vote for one.

When he does that, he actually discriminates against the other eight.

So that is a privilege of voting.

That is one of the cherished principles of voting.

So I reemphasize --

Justice Arthur J. Goldberg: Can a State drop a person exercising his private prejudice?

Mr. Jack P. F. Gremillion: If the State would pass a law attempting to exercise prejudices, it's my opinion, it would be unconstitutional and would be violative of the Fourteenth Amendment, yes.

Justice Arthur J. Goldberg: General, what -- what then is the purpose of this designation on the ballot?

Mr. Jack P. F. Gremillion: Purely to let people know who they are voting for.

Now, we had a -- a Governor in 1940 by the name of Sam Jones who ran for office.

Now, can you imagine how many Sam Jones is of the different races there are in the State of Louisiana?

Suppose that Ike Smith wanted to run for office, how many would we have?

That's the only question involved purely having an informed electorate and that is absolutely all.

We have some 61 Negroes running for office in Louisiana in the primary coming up on December the 7th.

We even had, in one parish and it may be interesting to note, we had one justice apiece and a constable who were Negroes, who qualified and it didn't even have any opposition and they're going back into office without any opposition.

Justice John M. Harlan: Could the State require a candidate to state his religious denomination on the ballot?

Mr. Jack P. F. Gremillion: No, and I don't believe that -- I believe that they would be doing offense to the First Amendment if they did so.

Now, of course, the Government in its amicus curiae brief points out that if a State want to aid the voters that it could publish a biographical sketch which, of course, would show you a religious affiliation, your clubs that you belong to, where you live and what your college education or your high school education would be.

With all due respect to the Government's position, I -- I think that if they say that's alright, then their brief is completely in our favor and should be treated that way because I personally think, in all sincerity, that if the State did that, as the Government want -- would have us do, then we would definitely be aiding candidates and we will be practicing discrimination and we would be fostering prejudices.

I -- I have no doubt about that and I think that that would definitely be unconstitutional.

But I come back to the fact that this case should not be embellished with platonic ideas, this is strictly a legal question.

And this, of course, is a court of law.

And the question here and sole question here is can a State pass such a regulation without doing offense to the Federal Constitution?

Many states, as also cited in the Government's brief, require you to say where your residence is.

And in Massachusetts, they want you to know whether you're an incumbent or not.

Well, if -- if that's --and those -- those who've never charged, I see no difference between stating what your race is and stating that you live at such and such an address.

Because it's -- many of the voters, for instance, in Louisiana if you'd have one of the candidates here before they finish, rather Mr. Belton, whom I know real well, I know where he lives, he lives in Scotlandville which is a very heavily populated Negro community near Southern University and if he would put his residence down there, everyone would know his race.

I'm saying if we didn't have race against and it had residence the way the other States did.

Justice Arthur J. Goldberg: But if, General, assuming out of race here by the State (Inaudible) the voter that race is and should be an important element in making (Inaudible)?

Mr. Jack P. F. Gremillion: Now -- now if the State would've done as in the McDonald case, where it selected one particular race, I think that that McDonald decision is correct.

I agree with it that it's completely in -- in apposite here because the facts in this case are entirely different.

But I do not think so because you are giving the voter information as to the identity of the person.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack P. F. Gremillion: And -- and the State is in no way taking part in that election.

No more than it is by providing the -- the number.

Justice Arthur J. Goldberg: Perhaps the State is (Inaudible) is it not, General, that this particular type of information, (Inaudible) is important enough for the State to inquire (Inaudible) vote, isn't that correct?

There's no (Voice Overlap) --

Mr. Jack P. F. Gremillion: No, I -- I don't of course -- I don't agree with that.

If -- if -- if you say that that is correct, well, then I'm out of court, of course.

And that's the question that we are here to decide.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack P. F. Gremillion: But as long as the State --

Justice Arthur J. Goldberg: -- one of the purpose -- one of the purpose is served.

(Inaudible)

Mr. Jack P. F. Gremillion: I am --

Justice Arthur J. Goldberg: -- that the voters are entitled to this information.

Mr. Jack P. F. Gremillion: Correct.

The voters are entitled to this information because he is entitled to know the identity of the candidate and who he's voting for.

Justice Arthur J. Goldberg: On the basis of race.

Mr. Jack P. F. Gremillion: And that's the justification for it.

Justice Arthur J. Goldberg: On the --

Mr. Jack P. F. Gremillion: The --

Justice Arthur J. Goldberg: -- basis of race.

Mr. Jack P. F. Gremillion: On -- on the basis of race because certainly, all people have to be of some different race.

And they certainly should be proud of it.

And that -- I don't see where that's doing any -- any offense fostering prejudices of any nature or kind.

The question was asked here yesterday, what about sex?

I think that a State could require sex.

We have several ladies running for office in Louisiana today.

They are -- they are listed as Mrs. so and so.

But we don't require sex because people generally know that if your name is Lillian, you're certainly going to be a female.

I will admit that there are some coincidences where their names have similarity but they are so minute that it -- it would be probably one of no consequence whatsoever.

Now, when this law was passed in 1960, saying that the race had to be spelled out by the candidate and put on the ballot, there was considerable discussion as to whether or not a photograph should be put on the ballot, as Justice Harlan asked yesterday.

Now, suppose -- it was determined, however, that a photograph would be too cumbersome.

And I suppose that the candidates for office or the members of the legislature probably had themselves in mind and they said, "No, we're not going to fool with photographs if we just put race on the ballot and that would sufficient identity."

Now, the -- the whole question here, as I repeat, is not a question of morals, it's not a question of policy, it's not a question of whether this is a wrong risk legislation or right legislation, it's a question of whether or not, as long as all candidates are treated alike, a State may require a designation of race on the ballot.

Now --

Chief Justice Earl Warren: General, doesn't your State have a statute saying that segregation is the policy of your State?

Mr. Jack P. F. Gremillion: I don't know whether -- I don't think we have a statute as such.

But as you well know in this Court, well knows that that has been the policy.

And of course, this Court has struck down quite a few of our statutes and I'm sure that you probably strike down some more.

We've had as to more file recently in the State of Louisiana.

Justice Douglas went into that quite thoroughly in one of the cases, I think (Inaudible) cases something like that.

I don't know which one it was.

But I come back to the same question that it -- it's immaterial.

What the State is trying to do here is inform its electorate and that is the legal question that is before us.

None of us can change our race.

I'm sure as I've said before that all of us are proud of it.

Every time we've had a case involving segregation, the complainants have always identified them or complained of a wrong was done.

They've identified themselves as Negroes.

And I think that this Court not to come up and say that it's wrong to identify a candidate on a ballot would have the reverse effect of putting a stigma on a particular race, which I don't think it would be proper to do.

Now, of course, opposing counsel said that we had all kind of laws passed to this particular session but that's not the question here.

We're only involved here with one particular statute.

And the question, as I repeat, is whether or not a State can legally provide this information to the voter.

Now, it maybe that you might be constrained to say that the State would be discriminating because of the fact that we have a large, large number of Negroes in our State, but that isn't the controlling point, gentlemen.

And Justice, I believe Justice Stewart asked yesterday, "Would this law be legal in South Dakota where there are very, very few?"

I certainly think it would be legal in South Dakota.

It would be legal in South Dakota.

It would be just as legal in Louisiana.

In other words, the number of people or the number of the races is not the question.

We have very few Chinamen or Mongols in Louisiana but -- and -- and that they've had several of them run for office and they've had to state their race.

Is this proper, a proper exercise of state government, as long as everyone is treated alike?

I emphasize that in this particular law, all of the candidates are treated alike.

There is no discrimination according to race.

And I humbly ask you to sustain the -- the judgment of the lower court.

Thank you, sir.

Justice Byron R. White: (Inaudible)

Mr. Jack P. F. Gremillion: Yes, sir?

Justice Byron R. White: (Inaudible)

Mr. Jack P. F. Gremillion: How is that Judge -- Justice, I didn't hear you.

Justice Byron R. White: How many -- how many races do you recognize in putting the race on the ballot?

One or two or you say --

Mr. Jack P. F. Gremillion: Whatever --

Justice Byron R. White: -- you treat everybody alike, I know, but --

Mr. Jack P. F. Gremillion: What -- whatever -- whatever the candidate would put down if you had -- if you had, let's -- let's say there's Caucasians, I think in the three general breakdowns as Caucasians, as Negroids and there's Mongoloids.

But of course, there are other races within those races that --

Justice Byron R. White: Do you have only two races -- do you think they have only two races in Louisiana?

Have you ever seen one -- either -- anything more than --

Mr. Jack P. F. Gremillion: We have --

Justice Byron R. White: --white or Negro on the ballot?

Mr. Jack P. F. Gremillion: We have -- how is that Judge?

Justice Byron R. White: Have you ever seen any identification of a person other than white or Negro?

Mr. Jack P. F. Gremillion: I've seen Chinaman.

We had a Chinaman running in Louisiana and he put down Mongol.

Justice Byron R. White: Are there three, is that it?

Mr. Jack P. F. Gremillion: We don't use the name of "white".

We use the name of "Caucasians".

Justice Byron R. White: Caucasians.

Mr. Jack P. F. Gremillion: So that that would take care of the Irish, the Frenchman, Jewish and so forth.

We -- we don't use the name of "white" at all, it's Caucasian.

Caucasian, Negro, Mongol.

Justice Potter Stewart: What would happen if --

Mr. Jack P. F. Gremillion: What's that, sir?

Justice Potter Stewart: -- there is -- if a person who is a Negro put in Caucasian what would happen to him if the --

Mr. Jack P. F. Gremillion: Well --

Justice Potter Stewart: Is -- is this kind of --

Mr. Jack P. F. Gremillion: If it got -- if got by the --

Justice Potter Stewart: (Voice Overlap)

Mr. Jack P. F. Gremillion: -- if got by this committee, it would certainly get on the ballot and that -- the committee or the Republican Committee or the Democratic Committee could challenge it or someone could challenge it.

Do you understand?

Justice Potter Stewart: No, I don't understand.

I -- I wanted -- as -- as you explained it to us in argument, you said that the blank that the candidate draws in is controlling it and that goes on the ballot and I wondered what, if any, sanctions or penalties or punishments --

Mr. Jack P. F. Gremillion: Well, I didn't go in --

Justice Potter Stewart: -- in other words, to prevent him from just putting down the --

Mr. Jack P. F. Gremillion: There is no punishment.

Justice Potter Stewart: -- the truth.

Mr. Jack P. F. Gremillion: There's no punishment, Mr. Justice.

But I didn't go into all of the details of qualifying, I just stated those --

Justice Potter Stewart: Yes.

Mr. Jack P. F. Gremillion: -- generally.

Now, let me -- after a candidate fills out his qualification papers and he states his race, those qualifying papers, as I stated, go back to the committee.

The committee reviews them.

Justice Potter Stewart: What committee is this?

Mr. Jack P. F. Gremillion: That -- well, in this case, the Democratic Committee reviews them.

You see, the Democratic Committee, the party committee, sends the names to the Secretary of State.

That's where the Secretary of State gets them from.

Now, there is a provision in Louisiana law that provides that any candidate, who has filed qualification papers, can be challenged before the committee and the whole committee can meet and hear that particular challenge.

Suppose that -- say in the case of Attorney General adopt to try to qualify and someone found it out and he -- he has, I think, 48 hours within which to challenge, he's got to send his protest in a form of a registered letter.

The committee's got to meet within 48 hours and render this decision within 24.

But if a doctor say would try to run for attorney general because our Constitution says you got to be a lawyer with so many years of service.

If the Committee said, "Well, we're not going to accept your qualification papers because you're not qualified", well then, the only thing would happen, there'd be no reprisal, there'd be no punishment, there's no crime committed.

The only thing would happen was the committee would fail to certify him to the Secretary of State.

Justice Potter Stewart: Couldn't it happen in this case.

You -- there's nothing here that says that a Negro is not qualified to be a candidate, is there?

Mr. Jack P. F. Gremillion: Oh, absolutely not.

Justice Potter Stewart: Well then, what would --

Mr. Jack P. F. Gremillion: And I'm not trying to say that he's not.

All I'm trying to say is that if a Negro wrote down Caucasian --

Justice Potter Stewart: Yes.

Mr. Jack P. F. Gremillion: -- it could possibly go through the committee and be printed on the ballot that way.

There'd be nothing to stop that unless someone challenged it or the committee found it out itself.

Justice William O. Douglas: Could -- could the --

Mr. Jack P. F. Gremillion: He has to have his address on the qualification papers too, of certain wards, the precinct, you see --

Justice William O. Douglas: Could he -- could he instead of putting down Caucasian, put down Norwegian or Irish, those things sometimes mean a difference in popularity at -- at the polls.

I noticed in Panama for example that the Jamaican Negro is sometimes more popular than African Negro, could those distinctions be carried out in your Louisiana system?

Mr. Jack P. F. Gremillion: No, he would have to state one of the three -- one of the -- the three branches, Caucasian, Negro or Mongol.

Now, he wouldn't -- now --

Unknown Speaker: (Inaudible)

Mr. Jack P. F. Gremillion: Well, I suppose that he would be classified as a Mongoloid because as I understand it, the Indians have Mongoloid traces and they are classified, as I understand it, ethnically as Mongoloids.

And we do have some Indians in the State of Louisiana, we have quite a few.

As a matter of fact, we have a school down in -- and I'm not trying to get into Brown versus Topeka but I do want to tell you this.

We have a Indian tribe down in Homer, Louisiana near the gulf.

They maintained their own school which is State-supported which is completely segregated and they won't let anybody come in that school regardless of whether they're Caucasians, as Negroes, they want it for themselves.

And --

Chief Justice Earl Warren: Could an Indian say he was Native American?

Mr. Jack P. F. Gremillion: Mr. Justice -- Mr. Chief Justice, I would say that the Indian is the true original American, but they have certainly been discriminated against an awful, awful lot.

Justice William O. Douglas: Not only in Louisiana?

Mr. Jack P. F. Gremillion: Sir?

Justice William O. Douglas: Not only in Louisiana?

Mr. Jack P. F. Gremillion: Oh, no, no, we -- we don't -- it's a matter of choice so far as they are concerned.

Well, I've certainly enjoyed my discussion which you -- with you gentlemen and I thank you for your kind attention.

Chief Justice Earl Warren: Mr. Greenberg.

Argument of Jack Greenberg

Mr. Jack Greenberg: Please the Court, the appellant has nothing further to add unless the Court had some questions.

I do have this qualifying form here which indicates that it must subscribed to under oath and I assume the sanction would be perjury if someone had stated that he was member of some race and it was held he was not a member.

If the Court would like to see this, I can hand it up but we have no additional argument as I've stated unless the Court have some questions.

Chief Justice Earl Warren: You might submit it to the clerk (Inaudible).

Rebuttal of Jack P. F. Gremillion

Mr. Jack P. F. Gremillion: May I say one thing?

Chief Justice Earl Warren: I beg your pardon?

Mr. Jack P. F. Gremillion: One -- may I say one more --

Chief Justice Earl Warren: Yes, yes you may --

Mr. Jack P. F. Gremillion: Let me say this.

Chief Justice Earl Warren: You have finished, had you Mr. Greenberg?

Rebuttal of Jack Greenberg

Mr. Jack Greenberg: Yes, yes.

Rebuttal of Jack P. F. Gremillion

Mr. Jack P. F. Gremillion: There could be no punishment for perjury in this particular instance, but even though it is required to be under oath, because perjury in Louisiana can only be committed before a court of record or before a grand jury so there would be no perjury whatsoever.

There would be no punishment for filling out this form erroneously, none whatsoever.

And there's no dispute about the facts in this case and there's no dispute as to the form that was used.

But I don't believe that that form was in the record was it Mr. Greenberg?

Rebuttal of Jack Greenberg

Mr. Jack Greenberg: No, I don't believe it was.

Rebuttal of Jack P. F. Gremillion

Mr. Jack P. F. Gremillion: It was not in the record.

But I -- I don't -- I'm sure that opposing counsel didn't mean to give the Court the idea that he could be punished for perjury because perjury can only be committed in a court of record.

A witness has taken an oath, testifying either before a grand jury or in a court of records so there can be no punishment for an erroneous filling out of that application.

Chief Justice Earl Warren: Do you -- General, do you have a false swearing statute as distinguished from perjury?

Mr. Jack P. F. Gremillion: Yes, we do have a false swearing statute.

Chief Justice Earl Warren: Now, would that apply?

Mr. Jack P. F. Gremillion: But I -- I don't -- I don't -- I could -- I can't answer you whether that would constitute false swearing or not because I don't remember the details of the false swearing statute.

Chief Justice Earl Warren: Usually the penalty is the same as for perjury in most states I think.

Mr. Jack P. F. Gremillion: No, perjury is a capital offence in Louisiana.

Chief Justice Earl Warren: Capital offence, yes.

Mr. Jack P. F. Gremillion: I -- I don't mean but punishment at hard labor not capital as a felony --

Chief Justice Earl Warren: Oh, I see.

Mr. Jack P. F. Gremillion: -- that was what I meant to say.

And false swearing is a misdemeanor.

But we've never had --

Chief Justice Earl Warren: I beg your pardon?

Unknown Speaker: (Inaudible)

Chief Justice Earl Warren: Yes.

Well, could you -- could you, General, supply us with information as to what if anything he could be prosecuted for -- for falsifying this oath.

Mr. Jack P. F. Gremillion: Would Your Honor care for me to give that to you in the form of a letter or --

Chief Justice Earl Warren: Yes, just a -- just a memo and serve it on -- on counsel.

Mr. Jack P. F. Gremillion: Alright.

We'll certainly do that.

Chief Justice Earl Warren: Thank you.

Justice Arthur J. Goldberg: General (Inaudible) is there a definition (Inaudible)?

Mr. Jack P. F. Gremillion: No, we have no -- we have no statute that says what a Negro is specifically.

We have no statute that specifically says what a Caucasian is.

We've had several court decisions that have defined a Negro.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack P. F. Gremillion: Those court decisions are in the plaintiff's brief -- I mean the complainants' brief at page 14.

It says, "Neither the statute challenged in this case by any other Louisiana statute defines the term "Negro" or any similar to it."

In this case, citing here the Supreme Court of Louisiana defined the word "color" 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 that (Inaudible) mixed or unmixed and to persons who have any appreciable mixture of African blood.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack P. F. Gremillion: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack P. F. Gremillion: Yes, yes.