The opinion of the court was delivered by: PITTMAN
The plaintiffs filed a complaint, motion for a preliminary injunction, and motion for a temporary restraining order on August 8, 1968. The temporary restraining order sought to restrain the holding of a municipal election for the offices of Mayor and City Councilmen to be held in Marion, Perry County, Alabama, on August 13, 1968, together with other relief, all without notice and without a hearing. The motion for the temporary restraining order was denied on the same date.
The motion to dismiss the defendants G. B. Auburtin, in his capacity as Election Clerk, City of Marion, Alabama, R. L. Pegues, in his capacity as Mayor of Marion, Alabama, James Pearson, Douglas Moore, C. B. Ivey, W. O. Carter, and Paul Anderson, each in his capacity as a member of the City Council of Marion, has been granted. All other motions have been denied.
Ann Marsh and Joe E. Bennett, as members of the Board of Registrars of Perry County, Alabama, have been added as parties defendant.
On October 1, 1968, evidence was taken, arguments were made, and upon this evidence and subsequent affidavits filed by the plaintiff, together with exhibits, the case was taken under submission.
This case presents urgent and critical circumstances involving the general election to be held November 5, 1968, in that there is an "apparent" excess of white voters in Perry County over those white persons of voting age who physically reside there. There are registered 4,654 white voters and 3,441 or less white persons of voting age who physically reside there. The United States Census for 1960 reflects that 60.2% of those of voting age were Negro and 39.8% were white. These percentages are likely to be substantially the same. Most of the ...