The opinion of the court was delivered by: WOOD
HAROLD K. WOOD, District Judge.
Plaintiffs, residents and registered voters of the City of Chester, Pennsylvania, instituted the instant class action to enjoin and to obtain declaratory relief against partisan political activity by members of the Chester Police Department.
Plaintiffs allege that approximately twelve to fourteen members of the Police Department serve in the capacity of Republican Party committeeman, a non-paying, elective office, and in that capacity electioneer at the polls for Republican Party candidates. An additional eight to ten members of the Police Department serve as political workers who assist the committeemen. The policemen who serve as committeemen and political workers are usually present at the polls on Election Day. They are not given Election Day off by the Department, but rather if they take the day off, it is credited against vacation time or compensatory time which the policemen have earned by working overtime hours. The policemen while working as committeemen are non-uniformed.
Plaintiffs allege that these activities result in intimidation of the Chester voters and that the police engage in these activities with the acquiescence of the Mayor of Chester and the Chairman of the Chester Republican Executive Committee who are joined as defendants.
Count I of plaintiffs' complaint alleges that the challenged police activities violate those sections of the Civil Rights Act prohibiting voter intimidation,
the First Amendment right of free political expression and the privileges and immunities and equal protection clauses of the Fourteenth Amendment. Count II alleges that the activities constitute a violation of the Hatch Act, 5 U.S.C. § 1501 et seq.
On October 28, 1968, after a hearing on plaintiffs' motion for a preliminary injunction, we denied the claim for injunctive relief. The parties have now advised us that they do not intend to present further evidence and have requested that final adjudication of the case be determined on the record adduced at the prior hearing.
For reasons hereinafter stated, we conclude that plaintiffs' request for permanent injunctive relief must be denied.
42 U.S.C. § 1971(a)(1), in language adapted from the Fifteenth Amendment, provides that "All citizens of the United States who are otherwise qualified by law to vote at any election * * * shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude (emphasis added). Because the purpose of § 1971 is to prevent racial discrimination at the polls, the Courts have held that the Section is applicable only where voter intimidation is racially motivated. Cameron v. Johnson, 262 F. Supp. 873 (S.D. Miss. 1966), reh. den. 391 U.S. 971, 88 S. Ct. 2029, 20 L. Ed. 2d 887 (1968; Powell v. Power, 320 F. Supp. 618 (S.D.N.Y. 1970), aff'd. 436 F.2d 84 (2nd Cir. 1970); Gremillion v. Rinaudo, 325 F. Supp. 375 (E.D. La. 1971). In the instant case there is no allegation of racial discrimination, nor does any evidence of such discrimination appear in the record. Consequently we find that 42 U.S.C. § 1971(b) does not afford plaintiffs a basis for relief. However, plaintiffs also allege that the partisan political activity by the Chester policemen constitutes a violation of the privileges and immunities and equal protection clauses of the Fourteenth Amendment and the First Amendment right of free political expression. It is clear that "the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections." Reynolds v. Sims, 377 U.S. 533, 554, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). Therefore, we conclude that plaintiffs' allegation that defendant policemen, acting under color of authority, have interfered with that right states a claim upon which relief can be granted and that consequently the inapplicability of § 1971(b) does not preclude us from reaching the merits of plaintiffs' case.
Plaintiffs do not allege that the policemen serving as committeemen and political workers engage in any overt activities which interfere with their right to vote. Rather they contend that the presence of the police on election day has an inherently coercive effect on that right. In support of this contention they cite the observation of the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 457, 86 S. Ct. 1602, 1619, 16 L. Ed. 2d 694 (1966), that the police can create an "atmosphere [which] carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity." However, in making this observation, the Court was referring not to inherent intimidation created by the mere presence of police but rather to such intimidation in an interrogation environment where an accused is, in the presence of no one but policemen, being questioned about his alleged participation in a criminal offense. It by no means follows that this same atmosphere is created where persons in the lawful exercise of their right to vote are urged by one or two non-uniformed policemen to support a certain party or candidate.
A similar question to that presented here arose in Gremillion v. Rinaudo, supra, in which plaintiffs sought to set aside the results of a Democratic Party primary election for school board members. One allegation of plaintiffs' complaint was that the local Chief of Police "assisted" voters at the polls, the result of which was inherent coercion and intimidation of the right to vote.
While the facts of Gremillion are somewhat dissimilar from those of this case, we feel that the situation there was more susceptible to a finding of inherent coercion and intimidation than the situation here. In the first instance, the Police Chief in Gremillion was uniformed, whereas the Chester policemen who serve as committeemen and political workers are not. Secondly there is no indication in the Court's opinion that the Police Chief was a committeeman or authorized political worker. Therefore the voters could reasonably have inferred, and perhaps correctly so, that he was acting not in an official election capacity, but in his capacity as Chief of Police. Nevertheless the Court declined to find that his assistance of voters, without more, constituted, on its face, illegal intimidation and coercion.
Plaintiffs have failed to show that the challenged activities have, in fact, had an intimidating effect upon the voters of the City of Chester. There was, for example, no testimony from any registered voter that he is hesitant to vote or to vote in a certain way because of the presence of the policemen on Election Day, nor was there testimony from any of the Committeemen and Committeewomen who testified that they are presented with any difficulty in getting prospective voters to register with the Democratic Party or getting registered voters to vote Democratic because of the partisan political activity by the policemen. There is no evidence that the percentage of registered Democratic voters who vote regularly is less in those precincts where the Republican Party committeemen are policemen. Nor is there any evidence that Democratic registration is less in those precincts where the Republican Party Committeemen are policemen than in comparable precincts where they are not. Such evidence would tend to corroborate plaintiffs' contention that the partisan political activities have a coercive effect on Chester voters. In the absence of such evidence and in the absence of evidence of active intimidation or coercion, we are left with the mere assertion that the activities engaged in by party committeemen become, when the committeemen are policemen, coercive and intimidating. We do not consider this an adequate basis for relief.
We also see no merit to plaintiffs' claim that the activities of the police as committeemen deny them equal protection of the law in that the policemen serving as committeemen may, in their capacity as policemen be disinclined to enforce the law in a "non-partisan" manner. Such a contention rises ...