Civil Rights, 1959

With respect to those registrars who claim that they no longer have possession and control, it is sufficient to state that this is a matter which must be demonstrated to the satisfaction of this Court.

Apart from the foregoing consideration, the registrars' refusal to be sworn is entirely without justification. The nature of a subpoena is not merely to command attendance, but attendance and testimony. The party subpoenaed has no choice in this respect. He may refuse to answer questions or produce documents on the ground of privilege, but has no right to refuse to be sworn, where as here the subpoena is at least prima facie legal.

Voting records may be removed from their respective counties

Respondents contend that under Alabama law voting records may not be removed from the county in which they are located and that accordingly they were not subject to be produced at the Montgomery hearings. The short answer is that the federal Civil Rights Act permits the Commission to subpoena voting records from any place within a State." Accordingly, any State law conflicting with this power must give way and the records must be produced. But in any event there appears to be no objection under Alabama law to the production of voting records at any place within the State.24

Title 7, Section 3 (1955 Supp.) of the Alabama Code forbids removal of court records from a county, but this section relates only to judicial records (which is the chapter heading), such as those which are filed in the various courts in particular cases. But this section has no application to records kept by voting registrars. Such records are prepared and kept pursuant to the provisions of Title 17, dealing with Elections, and pursuant to Amended Section 121 of the Alabama Constitution (Amendment XCI). There is no provision in this Title or in the Constitutional Amendment which would indicate that voter registration records are to be considered judicial records within the intendment of Title 7, Section 3.

Nor is this rule affected by the fact that Judge Wallace impounded some of the records. Title 7, Section 3 provides that "no records or papers of any court must be removed out of the county *** unless by order of the court ***" But this provision seems to refer to pleadings and other such formal records, and not to evidence. Moreover, removal from the county for the purpose of accommodating an important federal interest would not violate the purpose of the statute inasmuch as even Section 3 specifically contemplates removal in some circumstances "by order of the court."

In any event, if this Court should hold otherwise, the Government would be willing to make use of the records without removing them from the county in which they are located.25

CONCLUSION

Wherefore, it is respectfully submitted that the motions to vacate should be denied and that all respondents be required to appear, testify, and produce records at the hearing of the Commission in Montgomery on January 9, 1959.

W. WILSON WHITE,

Assistant Attorney General. HARTWELL DAVIS,

United States Attorney. JOSEPH M. F. RYAN, JR., Attorney, Department of Justice.

I hereby certify that I have served a copy of the foregoing on John M. Putterman, Attorney General of the State of Alabama, and Attorney for George G. Wallman, et als by handing same to him on this December 31, 1958.

HARTWELL DAVIS, United States Attorney.

Section 102(k) of the Act clearly contemplates that a subpoenaed party may be compelled to testify and to produce records at a hearing held anywhere within a state. 24 Respondents do not rely on secrecy or confidentiality of such records and of course could not do so. Cf. Davis v. Schnell, supra; Pope v. Howie, 227 Ala. 154, 156, 149 So.

222.

25 This would also meet the claim that the voting records are voluminous and that transporting them would create a hardship. Again, because of respondents' lack of cooperation such physical problems could not heretofore be discussed. But they, too, may of course be considered in any order of the Court granting the Commission reasonable access.