source: Caselaw Access Project

author: Mr. Justice Stewart Mb. Justice Harlan,

license: Public Domain

text:
    GRIFFIN et al. v. BRECKENRIDGE et al.
    No. 144.
    Argued January 13-14, 1971
    Decided June 7, 1971

      Stewart, J., delivered the opinion of-the Court, in which Burger; C. J., and Black, Douglas, HarlaN (except for Part V-B), BreN-Nan; White, Marshall, and'BLACKMUN, JJ., joined.' HarlaN, J., filed a concurring statement, post, p. 107.

      Stephen J. Poliak argued the cause for petitioners. With him on the brief were Gary J. Greenberg and John A. Bleveans.

      W. D. Moore, by appointment of the Court, 400 U. S. 1006, argued the cause for respondents. With him on the brief was Helen J. McDade.

      Lawrence G. Wallace argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Griswold and Louis F. Claiborne.

   Mr. Justice Stewart

delivered the opinion of the Court.

This litigation began when the petitioners filed a complaint in the United States District Court for the Southern District of Mississippi, seeking compensatory and punitive damages and alleging, in substantial part, as follows:

“2. The plaintiffs are Negro citizens of the United States and residents of Kemper County, Mississippi. ...
“3. The defendants, Lavon Breckenridge and James Calvin Breckenridge, are white adult citizens of the United States residing in DeKalb, Kemper County, Mississippi.
“4. On July 2, 1966, the . . . plaintiffs . . . were passengers in an automobile belonging to and operated by R. G. Grady of Memphis, Tennessee. They were travelling upon the federal, state and local highways in and about DeKalb, Mississippi, performing various errands and visiting friends.
“5. On July 2, 1966 defendants, acting under a mistaken belief that R. G. Grady was a worker for Civil Rights for Negroes, wilfully and maliciously conspired, planned, and agreed to block the passage of said plaintiffs in said automobile upon the public highways, to stop and detain them and to assault, beat and injure them with deadly weapons. Their purpose was to prevent said plaintiffs and other Negro-Americans, through such force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and. immunities of citizens under' the laws of the United States and the State of Mississippi, including but not limited to their rights to freedom of speech, movement, association and assembly; their right to petition their government for redress of their grievances; their rights to be secure in their persons and their homes; and their rights no; to beenslaved nor deprived of life and liberty other than by due process of law.
“6. Pursuant to their conspiracy, defendants drove their truck into the path of Grady’s automobile and blocked its passage over the public road. Both defendants then forced Grady and said plaintiffs to get out of Grady’s automobile and prevented said plaintiffs from escaping while defendant James Calvin Breckenridge clubbed Giady with a blackjack, pipe or other kind of club by pointing firearms at said plaintiffs and uttering threats to kill and ^injure them if defendants’ orders were not obeyed, thereby terrorizing them to the utmost , degree and depriving them of their liberty.
“7. Pursuant to their conspiracy, defendants wil-fully, intentionally, and maliciously menaced and assaulted each of the said plaintiffs by pointing firearms and wielding deadly blackjacks, pipes or other kind of clubs, while uttering threats to kill and injure said plaintiffs, causing them to become stricken with fear of immediate injury and death and. to suffer extreme terror, mental anguish and emotional and physical distress.
“8. Pursuant to defendants’ conspiracy, defendant James Calvin Breckenridge then wilfully, intentionally and maliciously clubbed each of said plaintiffs on and about the head, severely injuring all of them, while both defendants continued to assault said plaintiffs and prevent their escape by pointing.their firearms at them.
“12. By their conspiracy and acts pursuant thereto, the defendants have wilfully and maliciously, directly and indirectly, intimidated and prevented the . . . plaintiffs . . . and other Negro-Americans from enjoying and exercising their rights, privileges and immunities as citizens of the United States and the State .of Mississippi, including but not limited to, their rights to freedom of speech, movement, association and assembly; the right to petition their government for redress of grievances; their right to be secure in their person; their right not to be enslaved nor deprived of fife, liberty or property other than by due process of law, and their rights to travel the public highways without restraint in the same terms as white citizens in Kemper County, Mississippi . . . .”

The jurisdiction of the federal court was invoked under the language of Rev. Stat. § 1980, 42 U. S. C. § 1985 (3), which provides:

“If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws .[and] in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act m furtherance, of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned .by such injury or deprivation, against any one or more of the conspirators.”

The District Court dismissed the complaint for failure to state a cause of action, relying on the' authority of this Court’s opinion in Collins v. Hardyman, 341 U. S. 651, which in effect construed the above language of § 1985 (3) as reaching only conspiracies under color of state law. The Court of Appeals for the Fifth Circuit affirmed the judgment of dismissal. 410 F. 2d 817. Judge Goldberg’s thorough opinion for that court expressed “serious doubts” as to the “continued vitality” of Collins v. Hardyman, id., at 823, and stated that “it would not surprise us if Collins v. Hardyman were disapproved and if § 1985 (3) were held to embrace private conspiracies tc interfere with rights of national citizenship/’ id., at 825-826 (footnote omitted), but concluded that “[s]ince we may not adopt what the Supreme Court has expressly rejected, we obediently abide' the mandate in Collins,” id., at 826-827. We granted certiorari, 397 U. S. 1074, to consider questions going to the scope and constitutionality of 42 U. S. C. § 1985 (3).

I

Collins v. Hardyman was decided 20 years ago. The complaint in that case alleged that the plaintiffs were members of a political club that had scheduled a meeting to adopt a resolution opposing the Marshall Plan, and to send copies of the resolution to appropriate federal officials; that the defendants conspired to deprive the plaintiffs of their rights as citizens of the United States peaceably to assemble and to equal privileges and immunities under the laws of the United States; that, in furtherance of the conspiracy, the defendants proceeded to the meeting sité and, by threats and violence, broke up the meeting, thus interfering with the right of the plaintiffs to petition the Government for the redress of grievances; and that the defendants did not interfere or conspire to interfere with the meetings of other political groups with whose opinions the defendants agreed. The Court held that this complaint did not state a cause of action under § 1985 (3):

“The complaint makes no claim that the conspiracy or the overt acts involved any action by state officials, or that defendants even pretended to act under color of state law. It is not shown that defendants had or claimed any protection or immunity from the law of the State, or that' they in fact enjoyed such because of any act or omission by state authorities.” 341 U. S., at 655.
“What we have here is not a conspiracy to affect in any way these plaintiffs’ equality of protection by the law, or their equality of privileges and immunities under the law. There is not the slightest allegation that defendants were conscious of or trying to influence the law, or were endeavoring to obstruct or. interfere with it. . . . Such private discrimination is not inequality before the law unless there is some manipulation of the law or its agencies to give sanction or sanctuary for doing so.” Id., at 661.

The Court was careful to make clear that it was decid- • ing no constitutional question, but simply construing the language of the statute, or more precisely, determining the applicability of the statute to the facts alleged in the complaint:

“We say nothing of the power of Congress to authorize such civil actions as respondents have commenced or otherwise to redress such grievances as they assert. We think that Congress has not, in the narrow class of conspiracies defined by this statute, included the conspiracy charged here. We therefore reach no constitutional questions.” Id., at 662.

Nonetheless, the Court made equally clear that the construction it gave to the statute was influenced by the constitutional problems that it thought would have otherwise been engendered:

“It is apparent that, if this complaint meets the requirements of this Act, it raises constitutional problems of the first magnitude that, in the light of history, are not without difficulty. These would include issues as- to congressional power under and apart from the Fourteenth Amendment, the reserved power of the States, the content of rights derived from national as distinguished from state citizenship, and the question of separability of the Act in its application to those two classes of rights.” Id., at 659.

Mr. Justice Burton filed a dissenting opinion, joined by Mr. Justice Black and Mr. Justice Douglas. The dissenters thought that (<[t]he language of the statute refutes the suggestion that action under color of state law is a necessary ingredient of the cause of action which it recognizes.” Id., at 663. Further,, the dissenters found no constitutional difficulty in according to the statutory words their apparent meaning:

“Congress certainly has the power to create a federal cause of action in favor of persons injured by private individuals through the abridgment of federally created constitutional rights. It seems to me that Congress has done just this in [§ 1985 (3)]. This is not inconsistent with the principle underlying the Fourteenth Amendment. That amendment prohibits the respective' states from making laws abridging the privileges or immunities of citizens of the United States or denying to any person within the jurisdiction of a state the equal protection of the laws. Cases holding that those clauses are directed only at state action are not authority for the contention that Congress may not pass laws supporting rights which exist apart from the Fourteenth Amendment.” Id., at 664.

HH 1 — I

Whether or not Collins v. Hardyman was correctly decided on its own facts is a question with which we need not here be concerned. But it is clear, in the light of the evolution of decisional law in the years that have passed since that case was decided, that many of the constitutional problems there perceived simply do not exist. Little reason remains, therefore, not to accord to the words of the statute their apparent meaning. .That meaning is confirmed by judicial construction of related laws, by the structural setting of § 1985 (3) itself, and by its legislative history. And a fair reading of the allegations of the complaint in this case clearly brings them within this meaning of the statutory language. As so construed, and as applied to this complaint, we have no doubt that the statute was within the constitutional power of Congress to enact.

W h-1 ( — I

We turn, then, to an examination of the meaning of § 1985 (3). On their face, the words of the statute fully encompass the conduct of private persons. The provision speaks simply of “two or more persons in any State or Territory” who “conspire or go in disguise on the highway or on the premises of another.” Going in disguise, in particular, is in this context an activity so little associated with official action and so commonly connected .with private marauders that this clause could almost never be applicable under the artificially restrictive construction of Collins. And since the “going in disguise” aspect must include private action, it is hard to see how the conspiracy aspect, joined by a disjunctive, could be read to require the involvement of state officers.

The provision continues, specifying the motivation required “for the purpose of depriving, either directly or indirectly, any person or- class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” This language is, of course,, similar to that of § 1 of the Fourteenth Amendment, which in terms speaks only to the States, and judicial thinking about what can constitute an equal protection deprivation has, because of, the Amendment’s wording, focused almost entirely upon identifying the requisite “state action” and defining the offending forms of state law and official conduct. A century of Fourteenth Amendment adjudication has, in other words, made it understandably difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons. Yet there is nothing inherent in the phrase that requires the action working the deprivation to come from the State. See, e. g., United States v. Harris, 106 U. S. 629, 643. Indeed, the failure to mention any such requisite can be viewed as an important indication of congressional intent to speak in § 1986 (3) of all deprivations of “equal protection of the laws” and “equal privileges and immunities under the laws,” whatever their source.

The approach of this Court to other Reconstruction civil rights statutes in the years since Collins has been to “accord [them] a sweep as broad as [their] language.” United States v. Price, 383 U. S. 787, 801; Jones v. Alfred H. Mayer Co., 392 U. S. 409, 437. Moreover, very similar language in cffisely related statutes has early and late received an interpretation quite inconsistent with that given to § 1986 (3) in Collins. In construing the exact criminal counterpart of § 1986 (3), the Court in United States v. Harris, supra, observed that the statute- was “not limited to take effect only in case- [of state action] ,” id., at 639, but “was framed to protect from invasion by private persons, the equal privileges and immunities under the laws, of all persons and classes of persons,” id., at 637. In United States v. Williams, 341 U. S. 70, the Court considered the closest remaining criminal analogue to § 1985 (3), 18 U. S. C. § 241. Mr. Justice Frankfurter’s plurality opinion, without contravention from the concurrence or dissent, con-clhded that “if language is to carry any meaning at all it must be clear that the principal purpose of [§ 241], unlike [18 U. S. C. § 242], was to reach private action rather than officers of a State acting under its authority. Men who 'go in disguise upon 'the public highway, or upon the premises of another’ are not likely to be acting in official capacities.” 341 U. S., at 76. “Nothing in [the] terms [of § 241] indicates that color of State law was to be relevant to prosecution under it.” Id., at 78 (footnote omitted).

A like construction of § 1985 (3) is reinforced when examination is broadened to take in its companion statutory -provisions. There appear to be three possible forms for a state action limitation on § 1985 (3) — that there must be action under color of state law, that there must be interference with or influence upon state authorities, or that there must be a private conspiracy so massive and effective that it supplants those authorities and thus satisfies the state action requirement. The Congress that passed the Civil Rights Act of 1871, 17 Stat. 13, § 2 of which is the parent of § 1985 (3), dealt with each of these three situations in explicit terms in other parts of the same Act. An element of the cause’ of action established by the first section, now 42 U. S. C. § 1983, is that the deprivation complained of must have been inflicted under color of state law. To read any such requirement into § 1985 (3) would thus deprive that section of all independent effect. As for interference with state officials, § 1985 (3) itself contains another clause dealing explicitly with that situation. And § 3 of the 1871 Act provided for military action at the command of the President should massive private lawlessness render state authorities powerless to protect the federal rights of classes of citizens, such a situation being defined by the Act as constituting a state denial of equal protection. 17 Stat. 14. Given the existence of these three provisions, it is almost impossible to believe that Congress intended, in the dissimilar language of the portion of § 1985 (3) now before us, simply to duplicate the coverage of one or more of them.

The final area of inquiry into the meaning of § 1985 (3) lies in its legislative history. As originally introduced in the 42d Congress, the section was solely a criminal provision outlawing certain conspiratorial acts done with intent “to do any act in violation of the rights, privileges, or immunities of another person . . . Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871). Introducing the bill, the House sponsor, Representative Shellabarger, stressed, that “the United States always has assumed to enforce, as against' the States, and also persons, every one of the provisions of the Constitution.” Id., at App. 69 (emphasis supplied). The enormous sweep of the original language led to pressures for amendment, in the course of which the present civil remedy was added. The explanations of the added language centered entirely on the animus or motivation that would be required, and there was no suggestion whatever that liability would not be imposed for purely private conspiracies. Representative Willard, draftsman of the limiting amendment, said that his version “provid[ed] that the essence of the crime should consist in the intent to deprive a person of the equal protection of the laws and of equal privileges and immunities under the laws; in other words, that the Constitution secured, and was only intended to secure, equality of rights and immunities, and that we could only punish by United States laws a denial of that equality.” Id., at App. 188. Representative Shella-barger’s explanation of the amendment was very similar: “The object of the amendment is ... to confine the authority of this law to the prevention of deprivations which shall attack the equality of rights of American citizens; that any violation of the right, the animus and effect of which is to strike down the citizen, to the end that he may not enjoy equality of rights as contrasted with his and other citizens’ rights, shall be within the scope of the remedies of this section.” Id., at 478.

Other supporters of the bill were even more explicit in their insistence upon coverage of private action. Shortly before the amendment was introduced, Representative Shanks urged, “I do not want to see [this measure] so amended that there shall be taken out of it the frank assertion of the power of the natiorial Government to protect life, liberty, and property, irrespective of the act'of the State.” Id., at App. 141. At about the. same time, Representative Coburn asked: “Shall we deal with individuals, or with the State as a State? If we can deal with individuals, that is a less radical course, and works less interference with local governments. . . . It would seem more accordant with reason that the easier, more direct, and more certain method of dealing with individual criminals was preferable, and that the more thorough method of superseding State authority should only be resorted to when the deprivation of rights and the condition of.outlawry was so general as to prevail in all quarters in defiance of or by permission of the local government.” Id., at 459. After the amendment had been proposed in the House, Senator Pool insisted in support of the bill during Senate debate that “Congress must deal with individuals, not States. It must punish the offender against the rights of the citizen . . . .” Id., at 608.

It is thus evident that all indicators — text, companion provisions, and legislative history — point unwaveringly to § 1985.(3)’s coverage of private conspiracies. That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others. For, though the supporters of the legislation insisted on coverage of private conspiracies, they were equally emphatic that they did not believe, in the words of Representative Cook, “that Congress has a right to punish an assault and battery when committed by two or moré persons within a State.” Id., at 485. The constitutional shoals that would lie in the path of interpreting § 1985 (3) as a general federal tort law can be avoided by giving full effect to the congressional purpose — by requiring, as. an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. See the remarks of Representatives Willard and Shellabarger, quoted supra, at 100. The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps .otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.

IV

We return to the petitioners’ complaint to determine whether it states a cause of action under § 1985 (3) as so construed. To come within the legislation a. complaint must allege that the defendants did .(1) “conspire or go in disguise on the highway or on the premises of another” (2) “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” It must then assert that one or more of the conspirators (3) did, or caused to be done, “any act. in furtherance of the object of [the] conspiracy,” whereby another was (4a) “injured in his person or property” or (4b) “deprived of having and exercising any right or privilege of a citizen of the United States.”

The complaint fully alleges, with particulars, that the respondents conspired to carry out the assault. It further asserts that “[t]heir purpose was to prevent [the] plaintiffs and other Negro-Americans, through . . . force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens under the laws of the United States and the State of Mississippi,” including a long list of enumerated rights such as free speech, assembly, association, and movement. The complaint further alleges that the respondents were “acting under a mistaken belief that R. G. Grady was a worker for Civil Rights for Negroes.” These allegations clearly support the requisite animus to deprive the petitioners of the equal enjoyment of legal rights because of their •race. The claims of detention, threats, and battery amply satisfy the requirement of acts done in furtherance of the conspiracy. Finally, the petitioners — whether or not the nonparty Grady was the main or only target of the conspiracy — allege personal injury resulting from those, .acts. The complaint, then, states a cause of action under § 1985 (3). Indeed, the conduct here alleged lies so ulose to the core of the .coverage intended by Congress ' that it is hard to conceive of wholly private conduct that ■ would come within the statute if this does not. • We must, accordingly, consider whether Congress had constitutional power to enact a statute that imposes liability under federal law for the conduct alleged in this complaint.

V

The constitutionality of § 1985 (3) might once have appeared to have been settled adversely by United States v. Harris, 106 U. S. 629, and Baldwin v. Franks, 120 U. S. 678, which held unconstitutional its criminal counterpart, then § 5519 of the Revised Statutes. The Court in those cases, however, followed a severability rule that required invalidation of an entire statute if any part of it was unconstitutionally overbroad, unless its different parts could be read as wholly independent provisions. E. g., Baldwin v. Franks, supra, at 685. This Court has long since firmly rejected that rule in such cases as United States v. Raines, 362 U. S. 17, 20-24. Consequently, we need not find the language of § 1985 (3) now before us Constitutional in all its possible applications in order to uphold its facial constitutionality and its application to the complaint in this case.

That § 1985 (3) reaches private conspiracies to deprive others of legal rights can, of itself, cause no doubts of its constitutionality. It has long been settled that 18 U. S. C. § 241, a criminal statute of far broader phrasing (see n. 4, supra), reaches wholly private conspiracies and is constitutional. E. g., In re Quarles, 158 U. S. 532; Logan v. United States, 144 U. S. 263, 293-295; United States v. Waddell, 112 U. S. 76, 77-81; Ex parte Yarbrough, 110 U. S. 651. See generally Twining v. New Jersey, 211 U. S. 78, 97-98. Our inquiry, therefore, need go only to identifying a source of congressional power to reach the private conspiracy alleged by the complaint, in this case. .

A

Even as it struck down Rev. Stat. §5519 in United States v. Harris, the Court indicated that parts of its coverage would, if severable, be constitutional under the Thirteenth Amendment. 106 U. S., at 640-641. And surely there has never been any doubt of the power of Congress to impose liability on private persons under § 2 of that amendment, “for the amendment is not a mere prohibition of State laws .establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.” Civil Rights Cases, 109 U. S. 3, 20. See also id., at 23; Clyatt V. United States, 197 U. S. 207, 216, 218; Jones v. Alfred H. Mayer Co., 392 U. S., at 437-440. Not only may Congress impose such liability, but the varieties of private conduct that it may make criminally punishable or civilly remediable extend far beyond the actual imposition of slavery or involuntary servitude. By the Thirteenth Amendment, we committed ourselves as a Nation to the proposition that the former slaves and their descendants should be forever free. To keep that promise, “Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.” Jones v. Alfred H. Mayer Co., supra, at 440. We can only conclude that Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men.

B

Our cases have firmly established that the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference. Shapiro v. Thompson, 394 U. S. 618, 629-631; id., at 642-644 (concurring opinion); United States v. Guest, 383 U. S. 745, 757-760 and n. 17; Twining v. New Jersey, 211 U. S. 78, 97; Slaughter-House Cases, 16 Wall. 36, 79-80; Crandall v. Nevada, 6 Wall. 35, 44, 48-49; Passenger Cases, 7 How. 283, 492 (Taney, . C. J., dissenting). The “right to pass freely from State to State” has been explicitly recognized as “among the rights and privileges of National citizenship.” Twining v. New Jersey, supra, at 97. That right, like other rights of national citizenship, is within the power of Congress to protect by appropriate legislation. E. g., United States v. Guest, supra, at 759 ; United States v. Classic, 313 U. S. 299, 314-315; Ex parte Yarbrough, 110 U. S. 651; Oregon v. Mitchell, 400 U. S. 112, 285-287 (concurring and dissenting opinion).

The complaint in this case alleged that the petitioners “were travelling upon the federal, state and local highways in and about” DeKalb, Kemper County, Mississippi. Kemper County is on the Mississippi-Alabama border. One of the results of the conspiracy, according to the complaint, was to prevent the petitioners and other Negroes from exercising their “rights to travel the public highways without restraint in the same terms as white citizens in Kemper County, Mississippi.” Finally, the conspiracy was alleged to have been inspired by the respondents5 erroneous belief that Grady, a Tennessean, was a worker for Negro civil rights. Under these allegations it is open to the petitioners to prove at trial that they had been engaging in interstate travel or intended to do so, that their federal right to travel interstate was one of the rights meant to be discriminatorily impaired by the conspiracy, that the conspirators intended to drive out-of-state civil rights workers from the State, or that they meant to deter the petitioners from associating with such persons. This and other evidence could make it clear that the petitioners had suffered from conduct that Congress may reach under its power to protect the right of interstate travel.

c

In identifying these two constitutional sources of congressional power, we do not imply the absence of any other. More specifically, the allegations of the complaint in this case have not required consideration of the scope of the power of Congress under § 5 of the Fourteenth Amendment. By the same token, since the allegations of the complaint bring this cause of action so close to the constitutionally authorized core of the statute, there has been no occasion here to trace out its constitutionally permissible periphery.

The judgment is reversed, and the case is remanded to the United States District Court for the Southern District of Mississippi for further proceedings consistent with this opinion.

It is so ordered.

Mb. Justice Harlan,

concurring.

T agree with the Court’s opinion, except that I find it unnecessary to rely on the “right of interstate travel” as a premise for justifying federal jurisdiction under •§ 1985 (3). With that reservation, I join the opinion and judgment of the Court.

       Tbe statute was then 8 U. S. C. § 47 (3) (1946 ed.).

       “We do not say that no conspiracy by private individuals could be of such magnitude and effect as to work a deprivation of equal protection of the laws, or of equal privileges and immunities under laws. . . . But here nothing of that sort appears. We have a case of a lawless political brawl, precipitated by a handful of white citizens against other white citizens.” 341 U. S., at 662.

       “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       “If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
      “If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
      “Théy shall be fined not more than $5,000 or imprisoned not more-than ten years, or both.”
      The penalty section was amended in 1968. See 18 U. S. C. § 241 (1964 ed., Supp. V) .

       This last was suggested in Collins v. Hardyman. See n. 2, supra.

       “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or Immunities secured by the Constitution and laws,-shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

       “If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another ... for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws . . . .”

       The conspiracy and disguise language of what finally became' § 1985 (3) appears to have been borrowed from the parent of 18 U. S. C. § 241. See Cong. Globe, 41st Cong., 2d Sess., 3611-3613 (1870).

       We need not decide, given the facts of this case, whether a conspiracy motivated by invidiously discriminatory intent other than racial bias would be actionable under the portion of § 1985 (3) before us. Cf. Cong. Globe, 42d Cong., 1st Sess., 567 (1871) (remarks of Sen. Edmunds):

       The motivation requirement introduced by the word “equal” into the portion of § 1985 (3) before us must.not be confused with the-test of “specific intent to deprive a person of a federal right made definite by decision or other rule of law” articulated by the plurality opinion in Screws v. United, States, 325 U. S. 91, 103, for prosecutions under 18 U. S. C. § 242. Section 1985 (3), unlike § 242, contains no specific requirement of “wilfulness.” Cf. Monroe v. Pape, 365 U. S. 167, 187. The motivation aspect of § 1985 (3) focuses not on scienter in relation to deprivation of rights but on invidiously. discriminatory animus. •

       Rev. Stat. § 5519 was repealed in 1909. 35 Stat. 1154.

       See Katzenbach v. Morgan, 384 U. S. 641; Oregon v. Mitchell, 400 U. S. 112, 135 (opinion of Douglas, J.), 229 (opinion of Brennan, White, and Marshall, JJ.); United States v. Guest, 383 U. S. 745, 761 (Clark, J., concurring), 774 (Brennan, J., concurring and dissenting).


author:
Mr. Justice White
      Mr. Justice Douglas,

text:
    ELY v. KLAHR et al.
    No. 548.
    Argued March 23, 1971
    Decided June 7, 1971
    White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Marshall, and Blackmun, JJ., joined. Douglas, J., filed a concurring opinion, in which Black, J., joined, post, p. 116. Harlan, J., filed a statement concurring in the result, post, p. 123.

      Philip J. Shea argued the cause and filed a brief for appellant.

      John M. McGowan II, Special Assistant Attorney General of Arizona, argued the cause for appellees. With' him on the brief was Gary K. Nelson, Attorney General.
   Mr. Justice White

delivered the opinion of the

This appeal is'the latest step in the long and fitful attempt. to devise a constitutionally valid reapportionment scheme for the State of Arizona. For the reasons given, we affirm the judgment of the District Court.

In April 1964, shortly-before this Court’s decision in Reynolds v. Sims, 377 U. S. 533 (1964), and in its companion cases, suit was filed in the District Court for the District of Arizona attacking the then-existing state dis-tricting laws as unconstitutional. Following those decisions, the three-judge District Court ordered all proceed-; ings stayed “until the expiration of a period of 30 days-next following adjournment of the next session” of the Arizona Legislature. (App. 2-3, unreported.) Nearly ' a year later, on May. 18, 1965, after the legislature had failed to act, the court again deferred trial pending a special legislative session called by the Governor to deal with the necessity of reapportionment. The special session enacted Senate Bill 11, which among other things provided one senator for a county of 7,700 and another for a county of 55,000. The session did not undertake to reapportion the House. Trial was had in November 1965 and on February 2, 1966, the court enjoined enforcement of Senate Bill, 11, which, it held, “bears'evidence of having been thrown together .as a result of considerations wholly apart from those laid down as compulsory-by the decisions of the Supreme Court.” Klahr v. Goddard, 250 F. Supp. 537, 541 (Ariz. 1966). The plan, said the court, was “shot through with invidious discrimination.” Id., at 546. The court also held that the existing House plan produced disparities of nearly four to one, which was clearly impermissible under our decisions.

Noting that the legislature “has had ample opportunity” to produce a valid reapportionment plan, the court formulated its own plan as a “temporary and provisional reapportionment,” designed to govern the impending preparation for the 1966 elections. The plan was to be in effect “for the 1966 primary and general elections and for such further elections as may follow until such time as the Legislature itself may adopt different and valid plans for districting and reapportionmerit.” Id., at 543. It retained jurisdiction, as it has done since.

Some 16 months later, in June 1967, the Arizona Legislature enacted “Chapter 1, 28th Legislature,” which again attempted reapportionment of the State. Within the month, suit was filed charging that this Act also was unconstitutional, but the court deferred action pending the outcome of a referendum scheduled with the November 1968 election for the legislature and Congress. It ordered those elections to be held in accordance with its own 1966 plan, as supplemented. Klahr v. Williams, 289 F. Supp. 829 (Ariz. 1967). The legislative plan was approved by the voters in the referendum and signed into law by the Governor on January 17, 1969. A hearing on the plan was commenced the same day. The court concluded on July 22, 1969, that the plan, which set up “election districts” based on population and “legislative” subdistricts based on voter registration, would allow deviations among the legislative subdistricts of up to 40% from ideal until 1971, and up to 16% thereafter. The court properly concluded that this plan was invalid under Kirkpatrick v. Preisler, 394 U. S. 526 (1969), and Wells v. Rockefeller, 394 U. S. 542 (1969), since the legislature had operated on the notion that a 16% deviation was de minimis and consequently, made no effort, to achieve greater equality. The court ordered its 1966 plan continued once again “until the Legislature shall have adopted different, valid, and effective plans for redistricting and reapportionment . . . .” (App. 85, unreported.) It refused to order the 1970 elections to be held at large, since there was “ample time” for the legislature “to meet its obligation” before the machinery for conducting the 1970 elections would be engaged.

' The legislature attempted a third time to enact a valid plan. It passed “Chapter 1, House Bill No.- 1, 29th Legislature,” which was signed. into law by the Governor on. January 22, 1970, and which is the plan involved in the decision from which this appeal is taken. Appellant challenged the bill, alleging that it “substantially disenfranchises, unreasonably and unnecessarily, a large number of the citizens of the state,” App.-106, and “creates legislative districts that are grossly unequal.” App. 108. Appellant at that time submitted his own plan for the court’s consideration. Appellant’s primary dispute with the new plan was that it substantially misconceived the current population distribution in Arizona. The court agreed that appellant’s plan, which utilized 1968 projections of 1960 and 1965 Arizona censuses, could “very likely [result in] a valid reapportionment plan” but it declined to implement the plan, since it was based on census tracts, rather than the existing precinct boundaries, and “the necessary reconstruction of the election precincts could not be accomplished in time” to serve the ■ 1970 ■ election, whose preliminary preparations were to begin in a few weeks. Klahr v. Williams, 313 F. Supp. 148, 150 (Ariz. 1970). At the same time, the court observed that its 1966 plan had fallen béhind contemporary constitutional requirements, due to more recent voter registration data (which increased the deviation between high and low districts to 47.09%) and the intervening decisions of this. Court in Kirkpatrick and Wells, supra, and Burns v. Richardson, 384 U. S. 73 (1966).

Turning to the legislature’s plan, the court found it wanting in several respects. First, though the result indicated population deviation between high and low districts of only 1.8%, the population formula used did not “truly represent the population within [the] precincts in either 1960 or 1968,” and thus “the figures produced . . . are not truly population figures.” 313 F. Supp., at 152. Second, the computer that devised the plan had been programmed to assure that the plan would not-require any -incumbent legislator to face any other incumbent for re-election. Third, the programming gave priority to one-party districts over districts drawn without regard to party strength. The court held that “the incumbency factor has no place in any reapportionment or redistricting” and found “inapposite” the “consideration of party strength as a factor . . . .Ibid.

The court was thus faced with a situation where both its 1966 plan and the legislature’s latest attempt fell short of the constitutional standard. At. that time, however, the 1970 elections were “close at hand.” The court concluded that another legislative effort was “out of the question” due to the time and felt that it could not itself devise a new plan without delaying primary elections, “a course which would involve serious risk of confusion and chaos.” Ibid. It considered at-large elections, but the prospect of electing 90 legislators at large was deemed so repugnant as to be justified only if the legislature’s actions had been “deliberate and inexcusable”; the court instead believed that the large population increase in Arizona since the last reliable census in 1960 was more to blame. Concluding that the 1970 elections would be the last to be held .before the 1970 census data became available for new plans, the court chose what it considered the lesser of two evils and ordered the elections to be conducted under the legislature’s plan. In its order to this effect, the court noted that it “assumes that the Arizona Legislature will by November 1, 1971, enact a valid plan of reapportionment,” but that “[u]pon failure of the Legislature so to do, any party to this action may apply to the court for appropriate relief.” Id., at 154.

The state officials did not seek review of the District Court’s judgment declaring Chapter 1 unconstitutional. Appellant, however, appealed to this Court. His notice of appeal was filed on June 18,'1970, his jurisdictional statement on August 17, 1970. The latter presented the single question whether it was error for the United States District Court to refuse to enjoin the enforcement of the Arizona Legislature’s most recent effort to reapportion the State. Appellees’ motion to dismiss or affirm was filed on November' 24. We noted probable jurisdiction on December 21, 400 U. S. 963.

Meanwhile, the 1970 elections were* held in accordance with the District Court’s decree. Appellees suggest that the issue presented is moot and appellant concedes “the 1970 general election has already been held so that that aspect of the wrong cannot be remedied.” Brief 8. But appellant now argues that however that may be, the District Court should now proceed to adopt a plan of reapportionment which would be displaced only upon the adoption of a valid plan by the legislature. Appellant doubts that postponing judicial action until after November 1 will give the District Court sufficient time, prior to June 1972, when the election process must begin in Arizona, to consider the. legislative plan and to prepare, its own plan if the legislative effort does, not comply with the Constitution. The feared result is that another election under an unconstitutional plan would be held in Arizona.

Reapportionment history in the State lends some substance to these fears, but as we have often noted, district-ing and apportionment are legislative tasks in the first instance, and the court did not err in giving the legislature a reasonable time to act based on the 1970 census figures which the court thought would be available in the summer of 1971. We agree with appellant that the District Court should make very sure that the 1972 elections are held under a constitutionally adequate apportionment plan. But the District Court knows better than we whether the November 1 deadline will afford it ample opportunity to assess the legality of a new apportionment statute if one is forthcoming and to prepare its own plan by June 1, 1972, if the official version proves insufficient. The 1970 census figures, if not now available, will be forthcoming soon; and appellant, if he is so inclined, can begin to assemble the necessary information and witnesses and himself prepare and have ready for submission what he deems to. be an adequate apportionment plan. Surely, had a satisfactory substitute for Chapter 1, held unconstitutional by the District Court, been prepared and ready the court would have ordered the 1970 elections held under that plan rather than the invalid legislative scheme. . And surely if appellant has ready for court use on November 1, 1971, a suitable alternative for an unacceptable legislative effort, or at least makes sure that the essential information is on hand, there is no justifiable ground for thinking the District Court could not, prior to June 1, 1972, complete its hearings and consideration of a new apportionment statute and, if that is rejected, adopt a plan of its own for use in the 1972 elections. Nor do we read the District Court decree as forbidding appellant from petitioning for reopening of the case prior to November 1, 1971, and presenting to the District Court the problem which it has now raised here but which we prefer at this juncture to leave in the hands of the District Court. The judgment is affirmed.

It is so ordered.

Mr. Justice Douglas,

with whom Mr. Justice Black joins, concurring.

The complaint in this case was filed on April 27, 1964. The District Court stayed all proceedings on June 25, 1964, until after the next regular session of the legislature and, when nothing was achieved, stayed them again until after a special session. A reapportionment plan produced by that legislature was held unconstitutional. 250 F. Supp. 537.

Thereupon the District Court drew a “temporary and provisional” plan for the general elections of 1966 and 1968. See 254 F. Supp. 997; 289 F. Supp. 827; 303 F. Supp. 224. In 1967 the legislature produced another plan which was approved by the voters and became effective January 17, 1969. This plan was also declared unconstitutional by the'District Court on July 22, 1969. The legislature then adopted a new plan effective January 22, 1970. The District Court allowed' this plan to be used for- the 1970 general election, although it considered the plan to be unconstitutional. The District Court in its decree provided:

“The court, having been advised that detailed ■ population figures for the State of Arizona will be available from the official 1970 census by the summer of 1971, assumes that the Arizona Legislature will by November 1, 1971, enact a valid plan of reapportionment for both houses of the Arizona Legislature and a valid plan of redistricting the congressional districts of Arizona. Upon failure of the Legislature so to do, any party to this action may apply to the court for appropriate relief.”

The District Court also retained jurisdiction of the cause. 313 F. Supp. 148.

■ Since Reynolds v. Sims, 377 U. S. 533, Arizona has not had a constitutionally valid apportionment plan. Members of the Arizona Legislature who were elected in the 1970 election were elected under a plan the District Court held unconstitutional. Under that plan a computer was instructed to redistrict the State and to accomplish, in order, the following objectives: (1) to make the districts as equal in population as possible; (2) to circumscribe the districts in such a way that each included one incumbent senator and two incumbent representatives; (3) to make the districts compact; and (4) to make districts politically homogeneous.

Even assuming the legislative districts were of eqiial population the plan would have several practical deficiencies as far as minority representation goes. The 1970 plan insured that no incumbent would be funning against another incumbent, as often may happen under a reapportionment plan. ^ Thus the opportunity for preserving the status quo was assisted'.

An effort to make each district politically homogeneous compounded this problem. The record provides a new definition of gerrymandering. A gerrymandered district in Arizona is not one where a “natural” majority finds its power erased by either moving lines to increase the numbers of the opposition in the district or by moving the lines so that a majority is dispersed. ■ In Arizona a gerrymandered district came to be one that is overwhelmingly either Republican or Democratic. Thus when the second and fourth factors are combined an incumbent had not only the natural benefits of mourn-bency, but also the benefits (where possible) of a one-party district, his own fiefdom.

The record reveals that the 1970 plan heavily favored incumbents even if we assumed equal population districts. Such an assumption, of course, is contrary to the facts; deviations in Arizona ranged from about 24% above the median to about .52% below the median.

The basic unit for a district was the local political precinct. Unfortunately, there were no population figures for the basic unit, thus making it difficult to build the districts. Such figures were created by programming the computer to assume that a precinct population was that part of the 1960 county population which the number of registered voters in the precinct in 1968 bore to the number of registered voters in the county in 1968.

If all segments of society were equally likely to register to vote, then the Arizona method of computing population would be unobjectionable. But all members of a community are not equally likely to register. For example, only two counties out of eight with Spanish surname populations in excess of 15% showed a voter registration equal to the statewide average. Not Only are the poor, the blacks, the Chicanos, and the Indians less likely to register in the first place, they are also likely to have a higher rate of illiteracy among their members. Arizona law at the time of the decision below required a literacy test for voter registration. Ariz. Rev. Stat. Ann. §§ 16-101 (A) (4), 16-101 (A) (5). Naturally this compounded the problem of underregistration of minority groups. While the present record lacks some basic statistics, we do know that in 1965 the Bureau of the Census determined that less than 50% of the residents of voting age were registered or voted in the 1964 presidential election in Apache County, Navajo County, and Coconino County. 30 Fed. Reg. 9897, 14505. Under § 4 (a) of the Voting Rights Act of 1965, 79 Stat. 438, the application of the literacy tests was suspended by the publication. of the statistics in the Federal Register, but the suspension was lifted a year later on the showing that the literacy tests had not been used in a discriminatory manner. Apache County v. United States, 256 F. Supp. 903. As of last fall Yuma County was subject to the literacy test ban of the Voting Rights Act of 1965. See Oregon v. Mitchell, 400 U. S. 112, 131 n. 12.

The 1970 plan adversely affected minorities. Because of the registration statistics used, one district in the Phoenix ghetto had approximately 70,000 residents while an .affluent all-white district in another area of Phoenix had only '27,000 residents. The Indian reservation area in northeastern Arizona fared little better. While it had sufficient numbers of Indians to justify a separate district which could undoubtedly elect Indian representatives in the state legislature, the Indians were done in. At the time of this suit there were no Indians elected to either the State House or Senate. But just to the south of the area two state senators lived 10 miles apart. Hence, the incumbency rule was invoked to split the Indian area so as to accommodate the two white senators:

The Arizona Legislature has yet to develop, a reapportionment plan which can pass constitutional muster. The incumbents who now have the opportunity to draft the plan come from districts which are malapportioned and overrepresent the white vote. A valid apportion-ment plan will seemingly mean the defeat of several incumbents. The new efforts to gerrymander the State for the members of the current legislature will doubtless be prodigious. Members of the 1970 legislature had the twin advantages of running as single incumbents and in politically homogeneous districts. Members of minority groups had the disadvantage of underrepresentation. That invidious discrimination still exists.

On oral argument it was said that there is no point in initiating the design of a reapportionment plan now because the 1970 census figures- are- not available. That argument is difficult to comprehend, for it appears that in March 1971 New Jersey completed a comprehensive reapportionment plan based on the 1970 census. The District Court has shown great patience and has been persevering. It probably - is the first to realize that the Gordian knot must be cut if there is to be a plan that satisfies constitutional requirements.

It has indicated it will wait until November 1, 1971, before it initiates a constitutional plan. The hearings on such a plan will doubtless be long drawn out and extensive. The prize is great, for if the present incumbents can prolong matters, the 1972 election may come and go with the existing invalid 1970 plan in effect. It is not difficult to imagine how easy that strategy might be. The 1972 primaries in Arizona are in September.

Primaries apart, there is always the problem of review by this Court. We are plagued with election cases coming here on the eve of elections, with the remaining time so short we do not have the days needed for oral argument and for reflection on the serious problems that are usually presented. If an election case is filed in our summer recess, we will not consider it until the first weék in October; and our effort to.note the appeal, hear the case, and decide it before November without disrupting the state election machinery is virtually impossible. The time needed is lacking. .

If a case is to'be heard and decided on these important issues it must be here by February so that we .can work it into our spring calendar of argued cases and decide it before July. If the District Court waits until November to hold hearings and put a reapportionment plan in operation, it is unlikely that any such schedule can. be met.

It is, therefore, essential that the judicial machinery be put into motion soon, so that a resolution of a matter that has defied solution for seven years be no longer delayed. I write these words not in criticism of the District Court but in support of its steadfast efforts to bring this stubborn litigation to an early end.

Mr. Justice Harlan concurs in the result upon the premises set forth in his separate opinions in Whitcomb v. Chavis, post, p. 165; Oregon v. Mitchell, 400 U. S. 112, 152 (1970); and Reynolds v. Sims, 377 U. S. 533, 589 (1964).

         Throughout this litigation, congressional districting has been at issue as well and has suffered the same fate as reapportionment of the legislature. However, appeal has been • taken , here only with respect to the lower court’s decree goncerhing legislative reapportionment.

       The court issued two supplemental decrees in 1966 which modified and clarified .the original order. 254 F. Supp. 997, 289 F. Supp. 827.

       Apparently under Arizona law, a referendum is required before a bill can become law where, as here, sufficient signatures against the bill are filed with the Secretary of State. See Klahr v. Williams, 289 F. Supp. 829 (Ariz. 1967).

       “The population factor in each of the election precincts comprising part of a legislative'district was obtained by instructing the computer to take the 1968 voter registration for the precinct and divide it by the 1968 voter registration for the county in which the precinct was located, thereby obtaining the percentage of registered voters of the county residing within the precinct. The computer was then directed to multiply that percentage figure by the 1960 census for the county in which the precinct was located, thereby obtaining the population factor for the precinct.” 313 F. Supp., at 151-152.

       Though wé noted in Burns v. Richardson, 384 U. S. 73, 89 n. 16, that “[t]he fact that district boundaries may have been drawn in' a way that- minimizes the number of contests between present incumbents does not in and of itself establish invidiousness,”' it is sufficient to note here, that the District Court did not base' its decision solely on this factor.

         E. g., Reynolds v. Sims, 377 U. S. 533, 586 (1964):
      “[Legislative reapportionment is primarily a matter for legislative consideration and determination, and . . judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.”

       Appellant has contended here that the use of voter registration figures, rather than actual population, to determine district size operates to the detriment of the poor, blacks, Mexican-Americans, and American Indians. In light of our disposition of this case, we need only advert to our admonition in Burns v. Richardson, supra,
        that use of voter registration as a basis may “perpetuate under-representation of groups constitutionally entitled to participate in the electoral process,” 384 U. S., at 92, and is allowable only if it produces “a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis.” Id., at 93. We presúme, of course, that any plan submitted, and certainly any- plan approved by the District Court, will be faithful to this requirement.

       Hearings on S. 818, S. 2456, S. 2507, and Title IV of S. 2029 before the Subcommittee on Constitutional 'Rights of the Senate Committee on the Judiciary, 91st Cong., 1st and 2d Sess., 406 (1969-1970).

       Because of the Voting Rights Act Amendments of 1970, literacy tests will not be a factor in future elections. Section 201, 84 Stat. 315, bars a State from denying the right to vote in any federal, state, or local election because of “any test or device” which is defined, inter alia, to include literacy. This part of the Act was upheld in Oregon v. Mitchell, 400 U. S. 112.

       N. Y. Times, March 24, 1971, p. 47.

       The primary election in Arizona in 1972 will' be held on Sept. 13. See Ariz. Rev. Stat. Ann. § 16-702.

        Williams v. Rhodes, 393 U. S. 23, was an exceptional case. There Mr. Justice Stewart actihg as Circuit Justice and in consultation with available members of this Court granted injunctive relief ordering the election ballots printed in such a way as . to include the American Independent Party, the losing party in the District Court. This was to insure that, if it prevailed here,' relief would be available. 21 L. Ed. 2d 69, 89 S. Ct. 1. An expeditéd briefing schedule was authorized and we heard oral argument as soon as the Term commenced. Eight days later our opinion was handed down modifying the judgment of the District Court. Had not Mr. Justice Stewart granted the injunction in September the appellants’ victory would have been a hollow one.
      A challenge to Colorado’s durational residency requirement prior to the 1968 election did not fare as well. The District Court upheld the requirement and we heard oral argument after the election was over. The case-was dismissed as moot. Hall v. Beals, 396 U. S. 45.
      Durational residency requirements have' come before the Court several times' this Term. In Hayes v. Lieutenant Governor of Hawaii, there was a challenge to the Hawaii durational residency-requirement for candidates. The Hawaii Supreme Court upheld the law in late August. An application for an injunction was denied. When the appeal finally came up for consideration on the merits, again after the election, it ■was, dismissed as moot, 401 U. S. 968. In Sirak v. Brown a state durational residency requirement for voters was upheld and, when this Court denied an injunction, 400 U. S. 809, the plaintiff chose not to docket his appeal, probably on the basis of Hall v. Beals, supra. A similar issue was present in Fitzpatrick v. Board of Election Comm’rs of Chicago, where we denied a motion to expedite the appeal, 401 U. S. 905. Had all the lower courts followed Drueding v. Devlin, 234 F. Supp. 721 (Md. 1964), aff’d, 380 U. S. 125, then mootness might have prevented any plenary review of the issue. Hut several district courts have con-eluded that- subsequent decisions have undermined Drueding and thus have invalidated durational residency requirements. This avoids the mootness issue and we have noted probable jurisdiction in one such case, Ellington v. Blumstein, 401 U. S. 934.
      In Beller v. Kirk there was a challenge to the Florida requirement demanding an independent candidate obtain 5% of the registered voters to sign a petition so that he could get on the ballot. Injunc-tive relief was denied by individual Justices early in October, but the case has subsequently been docketed sub nom. Beller v. Askew, No. 1360. We have heard oral argument on the same issue in Jenness v. Fortson, No. 5714.
      The Ohio laws are involved in several cases pending this Term. In one, the District Court handed down its decision late in July 1970. By that decision several sections of the Ohio laws were invalidated and we noted probable jurisdiction. Gilligan v. Sweetenham, 401 U. S. 991. A loyalty oath was upheld and we noted probable jurisdiction in that case. Socialist Labor Party v. Gilligan, 401 U. S. 991. • The court also upheld a provision requiring independent candidates to file at the same time as major party candidates. Sweetenham v. Gilligan, No. 790. A similar issue is also presented in Pratt v. Begley, No. 1044, where the District Court for the Eastern District of Kentucky made its ruling in early October.
      The then-forthcoming Chicago election in April 1971 also presented cases where one of the parties needed immediate action. In Jackson v. Ogilvie, the issue was the requirement that an independent obtain' 5% of the registered voters on a nominating petition. We denied a stay on February 22, 1971, 401 U. S. 904, and there was no way the case could be heard prior- to the-election.
      Through aE these cases Williams v. Rhodes stands out as exceptional, because both the necessary preargument injunctive relief and expedited oral argument were obtained.