Earl Warren: Number 67, Louisiana et al., Appellants, versus United States.
Harry J. Kron, Jr.: Mr. Chief Justice --
Earl Warren: Mr. Kron.
Harry J. Kron, Jr.: -- members of this Court, I would like to make a personal observation before I begin. On the one hand, I have been instructed by the Attorney General of Louisiana to bring his regards to this Court. Secondly, this is my first appearance here having been admitted this morning. And I want to thank this Court and tell them what a wonderful thing this has been to me today. As the Court knows, this is a suit by the United States against the State of Louisiana and members of the Board of the Registration of our state. It was instituted pursuant to the provisions of 42 U.S.C. 1971 as amended and also under the Declaratory Judgments Act. We, defendants, file a motion to dismiss upon the contention that the complaint failed to raise a substantial constitutional question and failed to state a judicial -- justiciable controversy within the jurisdiction of the three-judge court. The motion was overruled and the cause on the merits was heard before the three-judge court. The District Court Judge John Minor Wisdom has the argument that Court rendered the decision with which I'm sure all of you are thoroughly familiar. He was concor -- he was concorded by Judge Christenberry and dissented for him by Judge Gordon West. In making the application to this Court on appeal, we set forth to begin with that the court's case should be heard first -- firstly because that was a direct and absolute contradiction between two sections of the District Court in Mississippi. The suit was dismissed on the question of jurisdiction whereas in our case, the jurisdiction of question was maintained. We are before this Court then, first of all in our brief taking the position that we adopt and subscribe to the position taken by the State of Mississippi and maintain that this suit too should be dismissed on the same grounds. You spend enough time with that question. It's no use going into that point at further. Secondly, we argue that the Board of Registration is a party defendant. It is erroneously included and erroneous like -- erroneously directed to do certain things as such party for the simple reason that the Board of Registration has absolutely no power or authority over the registrars of voters. And, that the registrars themselves being the agents of the State and it -- and ministerial officers charged with the performance and the -- and the administration of these functions should be before the Court. And finally, now I know suddenly that our statute is not per se invalid. And if there is any invalidity that the -- that that -- that was done as a matter of ministerial action. And that it should have and could be enjoined against the individual registrars who have so violated the intent and the intent -- and the -- intent of the purpose of the statute of the constitutional provision and the statute. And finally -- and I think -- and possibly the most important position and contention that we make is that the lower court has gone beyond its authority and beyond the record in the case in enjoining the use of the new citizenship test. Particularly in doing so, in only 21 parishes of the State, and in particular -- and it's particularly saying in so doing, that it has pre-admitted the question, that it has not ruled on the question of the validity of that particular amendment to our law. But despite that fact has enjoined the State in the use of this minimum standing which we, of course argue that the State has a right to prescribe.
Arthur J. Goldberg: (Inaudible)
Harry J. Kron, Jr.: Yes, sir. I might explain for the Court's benefit in the event that you are not completely familiar with this citizenship test. When this suit was first filed, the only provision on the books with respect to a requirement to understand and interpret a section of our Constitution was one very similar, and in content, and in purpose almost identical with the Mississippi statute. However, after this suit was filed, the legislature passed a statute which provided that the Board -- the powers of the Board of Registration were expanded and enlarged. Whereby said Board acting under the specific language of the statute in a subsequent constitutional amendment, directed the Board to prescribe a set of rules and regulations in which the State would give a written objective standard test of the person's ability to understand the -- a Republican form of government. The -- the -- the test was formulated and adopted by the Board of Registration and was -- was sent out to the registrars who are directed to use it. At that point and this record will show this that at that point, the registrars were directed to discontinue the use of the verbal interpretation test and to use this new written objective standard written test, that the records of which were to be preserved in the Registrar's Office, all rejections to be preserved there. If the Court please, this test was designed and issued to the registrars in actual compliance with the formula set down in the Schnell case. And the actual questions for this test -- these are now the cases will show what it were taken from the manual issued and published by the Department of Justice in -- in their prescribed course of study. It required of alien applicants for citizenship who were given this manual for study in order that that may take a test of citizenship. Of course, our contention, our purpose was that if an alien applicant for citizenship should know these things, then a citizen of this country who is applying for the privilege to register and to vote should also know them and that that was not an unfair, not a discriminatory method of testing such knowledge. But it is one of the requirements that we contend that the State had the right to say. I think that there is nothing anywhere in this record to show and I'm positive that there's nothing in any way in this record to show that if the Government has ever contended that the citizenship test has administered after its initiation in 1962, was ever discriminatorily used against any person or classifications. The simple contention of the Government there is, that it is a new, more stringent, and onerous requirement which would raise the requirements and establish the -- the freezing situation which they have now ask the Court to remedy and which I asked the Court to remedy by issuing the injunction against the 21 parishes involved.
Arthur J. Goldberg: Mr. Kron, do you dispute the finding made by the District Court and I'm reading from 83 of the jurisdictional statement.
Harry J. Kron, Jr.: Yes, sir.
Arthur J. Goldberg: -- which has the opinion in the District Court, Judge Wisdom's opinion. And it says the State Board of Registration recently recognized the arbitrary nature of the test that was indicated earlier and this opinion abandoned its general use and after the institution of the suit. However, the Constitution in the statute of Louisiana still requires the use and understanding the interpretation test.
Harry J. Kron, Jr.: Yes.
Arthur J. Goldberg: And registrars have not entirely abandoned it, despite the institution has moved it. For example, this late April 1963, the reps -- Webster Register was using the interpretation test because she explained it still unblocks sometimes she gave the citizenship test and sometimes the interpretation test. Is that -- is there --
Harry J. Kron, Jr.: We don't dispute -- we don't dispute the last sentence of that paragraph, Justice Goldberg, but we do dispute the conclusion of Judge Wisdom in the first part of that statement. In the first place, I think he can find nothing in this record to justify the statement of the State Board of Registration recently recognized the arbitrary nature of test when the facts will show that the Board of Registration was directed to issue and formulate the fair and issue the new text. Although the Act did not say in place of or in lieu of the interpretation test, it is true that it was the legislature and the people of the State of Louisiana adopting the constitutional amendment subsequent to the original enable the original statute. It was the legislature who changed the policy of the State of Louisiana and not the Board of Registration, who gave -- who made that determination. Secondly, it is also true that the Constitution and statutes of the State permit or establish as a standard the use of the verbal interpretation test. But, I have to disagree with Judge Wisdom in that I -- we don't think that the statute requires the use of it. We think it will be within the sound discretion of the State and its offices in administering these statutes to either give or not to give as the case may be. Be that as it may, even though it may still require for the sake of argument, the fact is -- the fact is, and the court below has taken notice of that fact which I'll explain to you in just a moment that the -- the verbal interpretation test is not now and has not, since April 1963 been used. And there is no -- nothing in this record to show that there is any intention to use it. Now, insofar as the single case of April 1963 in Webster Parish, this -- this record would show Justice Goldberg, that -- that at the argument of this case and its closure and submission to the Court, that I had at that time, made and argued strenuously a motion of mootness. After the case was submitted, one of the registrars did begin to give the test again. The Government filed a motion to reopen the proceedings. They took to the position and she frankly admitted that she gave it on several occasions before a period of a few days. That was filed in the record and the case was resubmitted. But since that time, it has not been used, it's not being used, nor is there any intent to use. In all parishes of the State except one parish of either East or West of Louisiana is still on periodic registration. And that new complete registration began on the first of this year and the process of a reregistration at this time. Other than that, all parishes, 63, are on permanent registration. As I said before and just for purposes of clarity, the findings of fact and conclusions of law in the lower court degree go beyond the record on the case. There is no evidence to establish that the citizenship test is an additional burden or is more difficult than prior procedures. On the contrary, Judge Dawkins of the Western District in a case, clearly set forth that in his opinion, that the new citizenship test was clearly not more onerous, or more stringent, nor more than difficult that it was a fair application that has eliminated the arbitrary discretion of the registrar that had been previously complained of by the Government and all of these suits. That it was a simple test whereby the record was kept in the ability of the person to answer the question to as in writing and on the face of it and -- and that was less onerous. Of course, along that line if the Court please, we submit that, we don't think that on the Atkins for one reason and of course under simple logic for another that the state is at ever at anytime ever precluded from making changes in its administration and its laws, in its statute requiring most anything under its police power, under any of the inherent powers of the State, unless and until that change would be as, for instance here, an open effort to formulate policy to discriminate against a class -- a person or a class of persons. We wish to submit here that this record clearly shows that the adoption of the citizenship test in lieu of the verbal interpretation test is not an increase in the obligations of the individual. As a matter of fact, it is a relaxation of the test as easier and it's simpler and it's indiscriminately applied. We also feel that if the -- if the State of Louisiana does have the right first to -- to make such a test and to establish following the rule of Schnell in -- in its every facet. And that this test must in order to be enjoined be declared to be invalid. If it is not -- it is not declared to be invalid then it's -- that it still exists as a valid exercise of the State's right to use it.
Potter Stewart: This test involves a -- answering six multiple choice questions and you have to get four out of the six, right?
Harry J. Kron, Jr.: Yes, sir.
Potter Stewart: And who marks it?
Harry J. Kron, Jr.: There is a master card of correct answers for each of the tests. I might add to your expedition that --.
Potter Stewart: This set of a question --
Harry J. Kron, Jr.: It's a multiple choice thing --
Potter Stewart: is upon which card you call a master card?
Harry J. Kron, Jr.: That is correct. And each -- each card of course has a master list of correct answers and the registrar operates from that. But on that the A, B, C selected is either correct or incorrect. That's out of the six questions, only four have to be answered correctly in order for the person to pass. Does that answer your question?
Potter Stewart: Well not quite. There's a master card -- but who -- who was it and who compares the answers which the regis -- which the applicant give?
Harry J. Kron, Jr.: The registrar or the deputy. The registrar -- the registrar or the deputy.
Potter Stewart: Can the applicant see the master card?
Harry J. Kron, Jr.: No sir. The applicant cannot see the master card.
Potter Stewart: I mean, after -- after he's answered it, can he see the grading process?
Harry J. Kron, Jr.: In the -- in the actual process of registering, no. The policy has been among all registrars not to show the answers to those cards. However, here again, is something not only in this record but I would think that this Court knows real well. That if there has been in the opinion of anyone in most stringent and onerous type of thing, I think this Court can take notice that the people who are -- who are -- whom the Government is intending to protect here are actually the ones who have had the benefit of the new tests are actually a less stringent and a less onerous kind of thing because the Negro people have been conducting schools and the whites have not. And I think that is a fact although -- particularly may not be in this record. It is a matter of national knowledge that these schools do exist and they have been doing a very thorough job. So that when you talk about whether or not the applicants can see the answers in most cases in many, many cases, the Negro applicant has the advantage because they have been to the school. They know the questions and they have been taught the answers. They have actually taken a very short course in the Government. The result of which is, that it actually renounce to that class benefit and -- and -- and as a disadvantage to the ordinary whites who have up until this time at least not held any schools of instruction for this purpose.
Potter Stewart: Equivocally the questions --
Harry J. Kron, Jr.: Sir?
Potter Stewart: The questions of the -- of the persons which you assigned in your brief hardly need college education to answer it.
Harry J. Kron, Jr.: That's correct, sir.
Potter Stewart: -- the first president of the United States George Washington or wasn't he?
Harry J. Kron, Jr.: I think that that excerpt given there is a representative group selected at random from this test. There may be a question here and there that may be argued to be the most difficult. But on the main, these are questions which the Department of Justice itself thought was sufficiently important, and sufficiently easy, and sufficiently lenient for an applicant for citizenship to understand and know before they became a citizen of this country.
Arthur J. Goldberg: Certainly, I'm correct am I not that Judge Wisdom did not declare the citizens to test them invalidly.
Harry J. Kron, Jr.: They're definitely not.
Arthur J. Goldberg: So all that he did was to pass a relief --.
Harry J. Kron, Jr.: Exactly.
Arthur J. Goldberg: I understand his order, he said, until there is a general reregistration of the people in the counties that the interpretation test had been used could not be put into effect.
Harry J. Kron, Jr.: That is correct, sir.
Arthur J. Goldberg: And why isn't there actually familiar equitable way of handling the relief so as to set right and to pass the discrimination?
Harry J. Kron, Jr.: I might answer you, sir in going into this. If you will note in this record, in this case, the 21 parishes enjoined was so enjoined because there were depositions taken of the registrars or Deputy Registrars or former registrars that the verbal interpretation test had been given in those respective 21 parishes. Now, there is not in this record any issue of the existence of a pattern of practice of discrimination. There is no statistical evidence regarding those 21 parishes whereby it was determined. And there is no such finding in the lower courts decision that there was pattern of practice of discrimination.
Arthur J. Goldberg: But the judge, again, I refer to the opinion --
Harry J. Kron, Jr.: Yes sir.
Arthur J. Goldberg: -- and the findings. They made findings of discrimination?
Harry J. Kron, Jr.: Of discrimination but not a pattern of practice of such resulting from statistics of rejections or statistics of population, etcetera in the parishes concerned with which we're dealing. Now, the position we take sir there is, that if this law -- if this new statue is a valid exercise of the State's authority to prescribe a minimum qualification, the -- the -- the possession of a certain amount of understanding of the Government. Who is the fifth president? How may justices on the Supreme Court, etcetera, etcetera? Then, if that -- and the lower court has not determined that statute to be invalid, then the State must of necessity it seems to me, either have the right to use it in all 64 parishes of the State or not to use it in any of the parishes of the State to -- to - without -- without definite proof, statistical or otherwise of the existence of any particular pattern or any evidence to show that there has been specific indiscretions and -- and - and discriminatory practices in these 21 parishes, we don‘t feel that the State should be adjourned from the use of it of a valid plan and a valid exercise of its authority in establishing and -- and -- and requiring minimum qualifications. The judge came to the conclusion -- and I think you'll find this to be correct. He came to the conclusion that there was a discriminatory result in those parishes as a result of the use of this verbal interpretation test. Now, we come back from that argument, Justice Goldberg, and we say that there is a remedy at law. The Department of Justice and the United States have been in court and our State beginning with the McElvin case some four or five years ago. They have been constantly in Court contesting the use of these so-called citizens' discriminatory, illegal perjuries. The fact is, that the perjuries were not illegal except but they were discriminatorily used. And that they were directed solely and exclusively at Negroes who were on the rules as a result of -- and illegally registered because of the disqualifications of our law. Now, what the -- what the Louisiana decision is doing? And we cannot follow this -- this reasoning at all. But the Louisiana decision is doing is to first go on the theory that there has been a freeze. And now we're going to remedy that freeze under the authority granted originally in the -- in the Alabama case. We're going to remedy this freeze thing. And we're going to establish a minimum standard of our own whereby these people who -- who can -- can -- who can match anything that the white people have done, can be placed back on the rules and not be kept from voting. We say that -- that that is essentially and fundamentally wrong. The two wrongs never have made it right. That the remedy for the -- for the -- for the organization and if the Negro groups organize as they are wish to good citizens of this country and they wish to qualify and register to vote and we certainly agree that they have, if qualified, the right to do so, then they should be willing also to shoulder some of the responsibilities of that citizenship and operate within the framework of their state law and use the -- use the purging functions -- the purging statute sat all there and perform a service to their own not only to their own people, but to their state. And clean off these -- these rules of the illegally registered white people who are there and should not be there, too.
Arthur J. Goldberg: And that's -- I want to ask you about the --
Harry J. Kron, Jr.: Yes, sir. It's our -- it's our firm conviction that they should not be there.
Arthur J. Goldberg: -- and would have to unequal handed rule, I take it.
Harry J. Kron, Jr.: That is correct, sir.
Arthur J. Goldberg: That's impliciting your statement.
Harry J. Kron, Jr.: Yes, sir.
Arthur J. Goldberg: How do you reach that the beyond with this Court did in equalizing the result?
Harry J. Kron, Jr.: Well, because you see, Justice Goldberg, what the -- what the result of what this Court did. What Justice -- Judge Wisdom has done, is to just strike down completely even though siding the classification two or three other. He has struck down completely the right of the State to set any minimum requirement or standard whatsoever. He has said, “Because you have been a bad boy, we're not going to let you do anything.” He has -- he has required particularly in these 21 parishes, he has -- he has -- we believe legislated rather than -- than -- than issue a judicial opinion. He has legislated to the extent that he is going to punish the State of Louisiana and say, “Even though you have the right to set minimum requirements of understanding an education, etcetera, literacy and what not, since you have not done so, we're going to penalize you until you do what I say”, and that is a complete reregistration. I can find nothing in the law to give authority to the State that a court, equity, or otherwise, can say to a state, “You must, -- you must have a complete reregistration, otherwise -- otherwise --
Hugo L. Black: You didn't say that he gave another option and if you may go ahead and treat the Negro register the same way in the previous they treated the white ones who were registered. Would he give it that option to do it?
Harry J. Kron, Jr.: I don't think sir. The way I interpreted the opinion that he necessarily gave that as an option, I think he made it as a very, very strong suggestion. And in the 21 parishes involved actually put it into practice by refusing to permit us to use a valid requirement in the registration process. Justice Black, I'm not quite sure of my statistics. We have been over them many, many times. I think I can truthfully make this statement to you. That in all -- all of the 21 parishes, there has been a gradual upward number of successful Negro applicants. I think the percentage of the successful Negro applicants has been a little bit larger than the -- than they had than that percentage of white successful. But by the same token that could also be a fallacy of analysis for the reason that again in those 21 parishes, we have found that those Negroes who are still failing have not been predominantly being failed on the kind of this citizenship test that they are failing the all one application.
Hugo L. Black: Of course, you -- you --
Harry J. Kron, Jr.: I mean -- I don't need to be testifying but you ask me and I'm trying to give you to the best of knowledge.
Hugo L. Black: Now, if the county or the parish of this fellow where they have zero Negro voters and with that their large community.
Harry J. Kron, Jr.: Which is the particular one you're referring to?
Hugo L. Black: I'm looking at one natural—
Harry J. Kron, Jr.: (Inaudible)
Hugo L. Black: Westfield, Louisiana.
Harry J. Kron, Jr.: Westfield, Louisiana, there are -- there has been a registration drive there and there are some Negroes registered but I can tell you now --
Hugo L. Black: Were there 502 Negros in that area?
Harry J. Kron, Jr.: Yes, sir.
Hugo L. Black: And not registered.
Harry J. Kron, Jr.: That is correct.
Hugo L. Black: Both in 56 and 60?
Harry J. Kron, Jr.: There are some registered now.
Hugo L. Black: Where is East Carroll?
Harry J. Kron, Jr.: East Carroll is on the Northeast end of the State in what we call the Delta Country. Now, that -- that -- that parish has been the subject of a decision in the mining case.
Hugo L. Black: Has there been any registrar there?
Harry J. Kron, Jr.: Oh, yes. There are over. I think over 300 registered there now.
Hugo L. Black: 300, well you are not challenging the prime that this has been used, are you, for the purpose of keeping Negroes to vote?
Harry J. Kron, Jr.: I'm not admitting that it was used but I say this to you, sir. (Voice Overlap) I say this to you sir that we're actually, in effect, dealing with -- with -- with a little history there --
Hugo L. Black: Of course.
Harry J. Kron, Jr.: But the thing is it's -- it's smooth. It's not being used. And it's no longer really a problem. We're complaining up here, but what we're complaining up here is that just in the -- excuse me sir.
Hugo L. Black: No longer problem to whom?
Harry J. Kron, Jr.: To -- to -- to the complainants, to the -- to the classroom they're representing.
Hugo L. Black: Are they -- are they satisfied now that all of them have been registered -- that they have been registered?
Harry J. Kron, Jr.: Justice Black, you make me avenge of that personally prejudice opinion. I don't think they will ever be satisfied. However, getting back to the --
Hugo L. Black: The proposition you're arguing relates to the remedy. Why do you recognized of course that courts have chances as time in memorial, has followed some practices that some people have criticized as well. I'm going to step that about the chancery court in the early part of this country. But one of the things they have done throughout the history of chancery to find whether there's a wrong that has been committed. They want to issue an order to prevent it. And they do the things that they reach the common sense viewpoint by essentially in order to prevent the repetition of the wrong.
Harry J. Kron, Jr.: To prevent the repetition, yes sir.
Hugo L. Black: You recognized that?
Harry J. Kron, Jr.: You bet sir, yes sir.
Hugo L. Black: And if it were necessary to as what was with them here, if that's necessary and you were convinced that it's necessary the lawyers and the chancellor. The only thing to do is if you can't use this for a while until you bring about somewhat a quality but you say the chancellor doesn't have the right to do that?
Harry J. Kron, Jr.: In these circumstances, yes sir. I would.
Hugo L. Black: In these circumstances.
Harry J. Kron, Jr.: In this -- in the particular circumstance of this case, yes. And --
Hugo L. Black: (Voice Overlap) if he says that he doesn't have the power to do it in some circuit?
Harry J. Kron, Jr.: Now the Atkins case I think was quite—
Hugo L. Black: I'm not talking about the Atkins case. I'm talking about the power or the chancery court to make the remedy of prescribe.
Harry J. Kron, Jr.: By mandatory decree.
Hugo L. Black: By decree, yes.
Harry J. Kron, Jr.: By mandatory decree.
Hugo L. Black: Certainly.
Harry J. Kron, Jr.: We take this position that there is a remedy at the law. That the minimum standard provision --
Hugo L. Black: Well, it hasn't developed yet through the years, has it?
Harry J. Kron, Jr.: No, sir. But it's now available.
Hugo L. Black: It's been 100 years almost.
Harry J. Kron, Jr.: It's there available by the way --
Hugo L. Black: But then there's no good at it, didn't that work?
Harry J. Kron, Jr.: It can work. It hasn't been used. There has been no one thought about using. As a matter of fact, even --
Hugo L. Black: They even thought about it but they couldn't.
Harry J. Kron, Jr.: No sir, I can't agree with that. They could and they would not be presented from using it. They have not -- they have selected not to try. That is that.
Hugo L. Black: They have elected.
Harry J. Kron, Jr.: I say they all -- the people who are complaining and this lawsuit have elected not to try. Apparently, so they have not so tried. But the remedy is there and it's a very simple statute requiring simply that two persons registered were voters can go into the registration office and inspect the applications and accepted applications of other registered voters, and file an affidavit of challenge. And then under those conditions, the registrar is required mandato -- mandatory provision that each -- that he or she is required to mail a notice to the challenged voter at that -- that their right to vote has been so challenged and giving the reasons therefore. The provisions then relate to the administrative situation of the person coming in, to either try to comply or to or to re-register or attempt to re-register in a legal and valid way. And those provisions are open to anyone.
Hugo L. Black: They have more and they haven't accomplished what the Fifteenth Amendment says to be accomplished.
Harry J. Kron, Jr.: But the Fifteenth Amendment, Justice Black, does not prohibit the State from setting minimum standards either.
Hugo L. Black: No but you would -- you would agree, wouldn't you? I'm looking at the statistics here.
Harry J. Kron, Jr.: Yes, sir.
Hugo L. Black: --of what happened in the State?
Harry J. Kron, Jr.: Yes, sir.
Hugo L. Black: You would agree, would you not, that just on its face, these discrepancies show that the Fifteenth Amendment has not been observed in that State. How could you deny?
Harry J. Kron, Jr.: Well, I can't deny it but I can't completely agree either because let me say this if you please, Justice. And I'm not being naïve to avoid in answering anything. But there are many, many things beyond the record in this case that do not appear in statistical tables.
Hugo L. Black: That's true with reference to voting in many places.
Harry J. Kron, Jr.: That's true. There is -- there are many, many people who we can call the CSI College who we can refer to it, we can call in ambitions. We can call anything we want. The fact is, that this group of people until recent years, when the -- when it became important out of education and that group, their organizations, their leaders are doing, and we shall agree to the fact that they are doing a tremendous job to awaken that class, not only to the importance of the ballot but to its responsibilities. The same token for years beyond this and I'm certainly sure, Justice Black, that coming from the area and the part of the countries from which you come that you know that I'm telling the truth. They just simply want to be interested in making -- they simply we're not interested as a class in making a start.
Hugo L. Black: I know that since 19 -- we're talking about the year of 1900 at this history and it is alleged at this common knowledge that the obstacle of devoting college people where it ranked so high, that it was impossible for them individually to get over those hurdles. Would you agree to that?
Harry J. Kron, Jr.: Yes I would, sir. And I would say this and that it's very pertinent here that if this Court will take a few moments to study very carefully the comparison between this old verbal interpretation test and the new test --
Hugo L. Black: Where is that new? And I have been looking for here and I haven't found it.
Harry J. Kron, Jr.: I'm not sure that there is a copy of that new one in the record. I'm not so sure that there is but --
Potter Stewart: To explain that --
Harry J. Kron, Jr.: I think it's explained on the --
Potter Stewart: -- on part four of your brief beginning on page 20.
Harry J. Kron, Jr.: Yes sir, yes sir.
Potter Stewart: Is it in the record?
Harry J. Kron, Jr.: Yes, it's in the record, sir, at page 235, and explained there too, the copy of all clause.
Hugo L. Black: Does the law -- does the law forbid the registrars at ask any questions except those?
Harry J. Kron, Jr.: No, sir. However, the law simply says that the registrar is required to give this test.
Hugo L. Black: That's right.
Harry J. Kron, Jr.: Actually the law, it says -- it says the Board of Registration has to do it and they would setup and set out this --
Hugo L. Black: They can ask any questions they desire in addition to those in determining the test, can't they?
Harry J. Kron, Jr.: No, sir. This is the complete test in writing.
Hugo L. Black: Does the law prohibit asking into more?
Harry J. Kron, Jr.: No, sir it does not the law.
Hugo L. Black: Why can't be? Of course it's reasonably known a common knowledge that many registrars are appointed with their ability to ask questions that cannot be answered.
Harry J. Kron, Jr.: That was the old system. That's the very argument I'm making here, Justice Black, is that old system has been abandoned and that although as Judge Wisdom says it's still in the law.
Hugo L. Black: Why has your law change? Why has your law said they cannot continue to ask that question?
Harry J. Kron, Jr.: The law doesn't say that.
Hugo L. Black: It leaves it up to that as a question the law does, doesn't it?
Harry J. Kron, Jr.: Yes, sir that section of the law.
Hugo L. Black: Registrars are selected with that knowledge.
Harry J. Kron, Jr.: Yes, sir. Yes, so that's correct. But by the same token --
Hugo L. Black: (Voice Overlap) has been that in many of the places in your State according to this. Many of the places, no colored person have been able to register at all.
Harry J. Kron, Jr.: That was --
Hugo L. Black: But all the white people have.
Harry J. Kron, Jr.: That -- that was so at the time this -- this brief was filed. It's only so, I don't think there is a single parish now in the State of Louisiana where they're not registered Negroes.
Hugo L. Black: Well, maybe some, it's not a token thing that the Fifteenth Amendment requires.
Harry J. Kron, Jr.: That's correct, but the progress is being made. And it's being made as a result of and despite the old system and as a result of the use of this new test which is more lenient and not an onerous restriction or increase in the obligations of the individual involved.
Hugo L. Black: But with -- but within the registration room, so far as the law requires, these registrars who have been there before and still there can ask certain questions as they see fit.
Harry J. Kron, Jr.: I wouldn't go that far. They can ask questions. They can go and ask questions still. It's still in the law, sir, that they can ask questions about the interpretation of the Constitution, yes. They can do that. And Judge Wisdom is absolutely correct in that conclusion. But by the same token, we are telling you and it is a fact, which this Court can take note, that it's not being done and it said that is new written -- new citizenship test that has been substituted for the old text.
Hugo L. Black: Could you -- could you get an order to fill what has happened out (Inaudible) as matter of common knowledge? It's certainly a matter of fictional knowledge. And you say that it changes and they're remarkable. Could you get the change that has occurred in the 21 practices -- the 21 parishes and send it to us?
Harry J. Kron, Jr.: Yes, sir. We could do that. I would be happy to do that. This -- you see under this decree, those figures are already in the record in this case because the monthly reports have been filed with the clerk of the District Court. And that information is already in this record and it's being kept up the Court has retained jurisdiction, and --
William J. Brennan, Jr.: Is there a sense of a decree?
Harry J. Kron, Jr.: Yes sir. And the reports of --
William J. Brennan, Jr.: Was that the same? Was a general rule registered and being carried under the clerk?
Harry J. Kron, Jr.: No sir, no sir, no sir, it is not. No, sir it is not.
William J. Brennan, Jr.: Do I correctly read Judge Wisdom's opinion as providing that if there would be a general new registration in the 21 parishes and then the citizenship test might be used.
Harry J. Kron, Jr.: That's my interpretation. Does that explain to you sir? And if do you still wish me to send that information, I'll arrange that and be sent to you from the clerk?
Hugo L. Black: Not if it's in the record, in fact --
Harry J. Kron, Jr.: I'm not so sure if it's in this transcript. I mean it's not in the -- in the transcript but --
Hugo L. Black: You were saying—
Harry J. Kron, Jr.: The information is with the clerk in the lower -- lower court.
Hugo L. Black: The reason I ask you that you say things have occurred since the decree which should make a difference. Of course that's the matter that could more properly be taken out from the lower court. But since you've made the statement, I would think that you would inform --
Harry J. Kron, Jr.: Justice Black if I made that statement I was a little bit, I was a little bit in error. I didn't intend to say just exactly that. What I was -- what I was trying to say to you and it is a part of this record. Not since the decree but since the beginning of the use of the citizenship test in 1962 before the rendition of this decree. During the last period of time that the increases on the practices of the -- and the use of the citizenship test has corrected in great measure that the -- the -- has substituted for in great measure assuming for the sake of argument that the verbal test was a discriminatory device that the citizenship test on its own, one is not a discriminatory device and it follows the formula to the letter of Davis versus Schnell. And two, that it not only is not such a device it has not been used as such. And three, that it has been substituted for the old so-called discriminatory device. And fourthly, that it is not a more onerous and stringent requirement but a more lenient and fair requirement. Now, that is a statement that I intended to make.
Hugo L. Black: I suggest one more question. You are complaining about the order for reregistration, general reregistration, aren't you? You are saying that --
Harry J. Kron, Jr.: No, sir, we're not complaining about that. We say we didn't think the Court had the right to order that.
Hugo L. Black: Alright, suppose it does have the right to do it. Let's assume now that it has the right to do it. Chancellor is sitting there and trying to get some way to see that you're wrong and what you perpetuated and passed will not be continued. Would you think that is an unreasonable position to take that you should order complete reregistration so that the whole thing can be looked over? Assuming they have power --
Harry J. Kron, Jr.: Assuming they have power, no sir, I would agree.
Hugo L. Black: You would agree.
Harry J. Kron, Jr.: As a matter of fact I told—I told Judge Tuttle and his panel in October, on the sixth of this January. That rather than go the -- the -- the halfway route, rather than in my judgment come to the backdoor where you could say you can't go through the front, that we're dealing with after all a difference of opinion and political ideologies. We're dealing with -- with political questions, the right of the State to regulate its suffrage, the question, the fundamental --
Hugo L. Black: And the right of the voters to vote.
Harry J. Kron, Jr.: Right and there's also, also whether or not that right of the voter to vote is an absolute right or whether it's a limited right etcetera. So we -- we are involved here in -- in fundamental discussions of political philosophies and ideologies. We maintain of course that we have the right to maintain a minimal standard. Judge Christian Barry asked me on one occasion whether or not, if we set a minimum standard and the man had to be -- have a degree as a PhD and I said "Yes, on theory that would be so although it would be unreasonable and nobody intends that sort of thing".
Hugo L. Black: Will not allow all us out.
Harry J. Kron, Jr.: And not allowed all of us out. But by the same token, and by the same token, we maintain that the State does have the right to set minimum standard so long as they indiscriminately apply under the Fifteenth Amendment.
William J. Brennan, Jr.: That authority has put -- what's happening in this 21 year old, he can register?
Harry J. Kron, Jr.: Yes, sir.
William J. Brennan, Jr.: And what do they apply?
Harry J. Kron, Jr.: They are simply taking the test of the questionnaire which we call in our law the LR1 card, it's a question and answer.
William J. Brennan, Jr.: No interpretation?
Harry J. Kron, Jr.: No sir, no sir.
William J. Brennan, Jr.: (Voice Overlap)
Harry J. Kron, Jr.: No sir.
William J. Brennan, Jr.: And had there been many new registrations consisting of this.
Harry J. Kron, Jr.: Of all classes, yes, there has been a tremendous increase in registration numbers overall because of our gubernatorial statewide elections this past fall. But that's a normal thing as it comes around each four-year period.
Arthur J. Goldberg: Is that bad thing?
Harry J. Kron, Jr.: Sir?
Arthur J. Goldberg: Is that a bad thing?
Harry J. Kron, Jr.: On the contrary it's a very good thing.
Arthur J. Goldberg: Now, where is the (Inaudible). There's lack of power?
Harry J. Kron, Jr.: Exactly, sir.
Arthur J. Goldberg: They have no authority to anyone of these?
Harry J. Kron, Jr.: No, on the contrary he has -- he has the authority to say that the Act is unconstitutional as he said but he has not had. We contend that he does not have the right to say. That even though this new requirement is valid or at least to the point we shall not at this time pass upon its validity but we still enjoin its use and we say he's going beyond his authority to do just that. That if that thing is under the freezing prin -- freezing principle is to be enjoined, and it must be enjoined either statewide or not at all. Because actually in this case, if you become a little bit logical, the people in the other 40 somewhat parishes are being discriminated against it both black and white, as long as the people in 21 parishes of the State do not have to take this test as a minimum requirement.
William J. Brennan, Jr.: Well, what's the form -- what's the form that registered completes now in the 21 counties, what does that test do?
Harry J. Kron, Jr.: It's an application for a registration known as the LR1 card upon which a person must give his name, his residence, his age. He must calculate his age in days -- years, months and days. He must establish his citizenship eligibility by saying that he has resided in this ward, and precinct, and state until in such and such of time.
William J. Brennan, Jr.: Suppose he is in error by a couple of hours on his exact date of birth does that -- does that qualify him -- his application then?
Harry J. Kron, Jr.: Justice Brennan that is the issue in the present suit which I just been submitted to a three-judge panel.
William J. Brennan, Jr.: Well my question is, are registrants denied registration if they are erred?
Harry J. Kron, Jr.: I was about to -- I was going into that to explain. There's a little bit more to it than a yes or no. The fact is that this suit contests the constitution of the validity of this particular type of application. And there has been in that case much evidence to show that there is not and has been some divergence of -- of application --
William J. Brennan, Jr.: All I want --
Harry J. Kron, Jr.: -- from parish to parish.
William J. Brennan, Jr.: All I want to get was the answer to the question.
Harry J. Kron, Jr.: They have been denied.
William J. Brennan, Jr.: Were they denied registration if they are err to that kind in the application?
Harry J. Kron, Jr.: Yes sir; yes sir. And by way of adding I might say that although the Government thinks that the contrary, we know and had shown that whites and blacks alike and denied for that reason.
Hugo L. Black: You wouldn't say -- you wouldn't say that the proportion would be the same, would you?
Harry J. Kron, Jr.: I don't -- no, I wouldn't but I would say this that those statistics are in that other record and I don't think that too much out of proportion on that basis.
Arthur J. Goldberg: We'll have to give you a lot of questions.
Harry J. Kron, Jr.: Yes sir.
Arthur J. Goldberg: We're trying to get the facts correctly. On your 43 parishes, am I correct that Judge Wisdom retain jurisdiction with the other parishes?
Harry J. Kron, Jr.: Right.
Arthur J. Goldberg: And then operate the government the chance to prove the same pattern in discrimination --
Harry J. Kron, Jr.: Yes, sir.
Arthur J. Goldberg: -- from the 21
Harry J. Kron, Jr.: Yes, sir.
Arthur J. Goldberg: And also the State in that and the interpretation test was not saying the parish.
Harry J. Kron, Jr.: Right.
Arthur J. Goldberg: So with that part of the case, has anything happened to that part?
Harry J. Kron, Jr.: No, sir. Neither side has come in.
Arthur J. Goldberg: Come in.
Harry J. Kron, Jr.: And let's be fair that it is a practical matter both sides have been so busy with other matters and I haven't had a chance to get to it.
Arthur J. Goldberg: Is it -- so is Judge Wisdom's order or the District Court's order subject to attack on the basis of the judge and the evidence about 21 parishes, carefully tailoring his adjudication to where he has the evidence with that, and gave the parties an opportunity to offer evidence about the rest of the discussion.
Harry J. Kron, Jr.: True.
Arthur J. Goldberg: Now, would you say that's the wrong thing for the judge to do?
Harry J. Kron, Jr.: Yes, sir. I do because the evidence, he goes actually beyond what the evidence purports to support. The evidence in these 21 parishes, depositions only established that the test was given. There was no specific evidence as to whether or not it was given in statistically and in discriminatory manner. The assumption is just taken that, okay, it's given and it's discriminatory by the mere fact that it was given. Now there's nothing in the record to show that actually this, all of the other 43 parishes did not give it. But there is, I think in all its parishes and correct me if I'm wrong, evidence to show that it was not given in that and several of the other parishes which again gets us back to one of the justice's statement a few moments ago about Justice Black I think it was about the requirement to do these things here. Here we find that the test complained of it and the suit was not even given in over -- in almost two thirds of the parishes of the State so far as this record shows and that's about correct.
Arthur J. Goldberg: Well I'm assuming that that is so and I still have difficulty in determining what was wrong in the District Court's order and where to find the lead cases where the Court found --
Harry J. Kron, Jr.: On a simple logic -- on a simple logic, Justice Goldberg, the two wrongs don't make it right. We don't think the Court has a right to say "Alright, State of Louisiana through the registrar voters, you have destroyed the effect of your minimum requirements. You have permitted white people to come in and apply and to become illegally registered and get more onerous in that matter. Now, you have set your own minimum standard by violating your own law. Now we're going to set your minimum standard with the respect to the rest of the people.” I say that there is a remedy in law. That equity should not, as in Atkins and as well so stated by -- justice -- Judge Reeves in that case, that the Court should not say, "Let's disregard the state law. Let's knock it down. Let's establish a qualification system of our own" just because you have been guilty of doing that.
Arthur J. Goldberg: Well I understand that argument --
Harry J. Kron, Jr.: Yes, sir.
Arthur J. Goldberg: -- and requiring about why you felt a distinction between the parishes and made the order invalid. I understand your basic argument that you've made it and I think it's pretty effectively. But the -- but the fact of the judge said that if we have evidence in these counties should not invalidate his order because he didn't proceed to make any declaration about other parishes, where there was no evidence.
Harry J. Kron, Jr.: But depe -- evidence -- the evidence on those parishes only went to the extent the same that it was given.
Arthur J. Goldberg: You're also (Voice Overlap)
Harry J. Kron, Jr.: You we're questioning that.
Arthur J. Goldberg: It wasn't supported in 21.
Harry J. Kron, Jr.: That is correct, sir. Now again I say that if -- if this law is applicable on a statewide basis, a right of a citizen from X parish is no different from the right of the citizen from X parish over here.
Arthur J. Goldberg: (Inaudible)
Harry J. Kron, Jr.: But you see, we're overlooking one fact Justice Goldberg. And that is in the other 40 or somewhat parishes after the new test was -- was prescribe that all persons in all parishes were having to take the objective standard written examination. So that now we have a situation where in 21 of the parishes that they are not required to take it but in the other they are required to take it. So in reverse, we come to this, this increase of standards of a setting of additional standards making it onerous and objectionable as against the people in the 21 parishes where the injunctions lie.
Arthur J. Goldberg: (Inaudible)
Harry J. Kron, Jr.: Well I -- I don't think this record shows that. We're talking purely about the inequity of the -- of the discriminatory and purpose for use of the -- of the verbal test. That's correct. I think my time is up. I want to conclude now by saying that first again by reviewing that again we think the position of -- the State of Mississippi should be maintained and if it is of course, it must of necessity applied to this case. Secondly, that our statute and we rely on our brief. We didn't get time to cover it in the argument here. We say that statute is no invalid per se. And thirdly, that we most specifically and most strongly oppose and ask this Court to recognize that the lower court went beyond its authority and beyond the record in issuing this injunction against the use of a valid state statute. Even under that statement of the lower court presume not only presumed to be valid but the courts has expressly says it is not at that time determining or passing on its validity. And that therefore, if that statute is valid, the State has the right to use and then we must have been -- that right should be recognized in the injunction and to these 21 parishes desire. And finally that the -- being a court of equity and this being an equitable proceeding that the -- that the class for whom this action was filed does have that remedy at large. And if so, then of course, the -- the -- the injunction should not have been issued.
Hugo L. Black: It has an adequate --
Harry J. Kron, Jr.: An adequate remedy at law, yes sir. Thank you. Thank you gentlemen very much.
Earl Warren: We'll recess now.