State Board of Election Commissioners v. Evers/Dissent Douglas

by William O. Douglas

[p1004] MR. JUSTICE DOUGLAS, dissenting.

I would not dismiss this appeal for nonjurisdictional tardiness in docketing. There is no doubt that we have statutory jurisdiction to hear this case under 42 U.S.C. § 1973c. And, no doubt we may waive our self-imposed Rule 13 (1) inasmuch as "the requirement of docketing within sixty days [is not a] limitation on our power to hear [an] appeal." United Public Workers v. Mitchell, 330 U.S. 75, 86. But, as MR. JUSTICE BLACKMUN observes, ante, at 1001, this Court has failed to develop even the shadow of a consistent practice concerning the effect to be given an appellant's failure to docket within the prescribed time. In some cases the defect has been fatal^[1] [p1005] while in others it has been forgiven.^[2] This appeal was docketed 66 days late. Yet in Johnson v. Florida, 391 U.S. 596, 598, we entertained without explanation an appeal which was 56 days tardy. And, Mississippi's own experience with the vagaries of our dispensation of waivers has not been an illuminating one. In Whitley v. Williams, decided with Allen v. State Board of Elections, 393 U.S. 544, another challenge to that State's voting laws, the State was the appellee and the challenger's appeal was docketed 60 days out of time. Nonetheless, the infraction was passed over, the case was heard, and the District Court was reversed.

I cannot acquiesce in an arbitrary practice which permits the Court to sweep unpleasant cases under the rug.^[3] Unless we are willing to prescribe criteria for guiding our granting of waivers of the docketing requirement, such as we have done in Rule 19 for exercising our certiorari discretion, then we should either enforce Rule 13 (1) for all or for none.

Notes

1. Pittsburgh Towing Co. v. Mississippi Valley Barge Line Co., 385 U.S. 32; Landry v. Boyle, 393 U.S. 220; Shapiro v. Doe, 396 U.S. 488; Stein v. Luken, 396 U.S. 555; United States v. Cotton, 397 U.S. 45; Cheley v. Parham, 404 U.S. 878.
2. United Public Workers v. Mitchell, 330 U.S. 75, 86; Johnson v. Florida, 391 U.S. 596, 598; Whitley v. Williams, decided with Allen v. State Board of Elections, 393 U.S. 544; see also Durham v. United States, 401 U.S. 481 (Rule 22 (2) waiver).
3. This is not a frivolous appeal. Whatever the infirmities of the Mississippi voting statute, there is a strong argument, as MR. JUSTICE BLACKMUN indicates, that the District Court may have erred in using § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U. S. C. § 1973c, to enjoin its effectiveness.