368 F2d 328 Gilmore v. Greene County Democratic Party Executive Committee

368 F.2d 328

Thomas E. GILMORE and Percy McShan, Appellants,
al., Appellees.

No. 24188.

United States Court of Appeals Fifth Circuit.

Nov. 3, 1966.

Fred Wallace, New York City, for appellants.

Perry Hubbard, Tuscaloosa, Ala., for appellees.

Before TUTTLE, Chief Judge, and THORNBERRY and GOLDBERG, Circuit judges.


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This is an appeal from the denial by the District Court for the Northern District of Alabama of a motion that the appellants be declared to be validly nominated candidates of the Freedom Party of Alabama for the General Election to be held in Greene County, Alabama, on November 8, 1966.


This proceeding is a motion filed in connection with an already pending suit under the above caption in the Northern District of Alabama. In effect, it is an appeal from the denial of a temporary injunction.


We conclude that the trial court erred in its determination that the certificate of nomination filed by the Freedom Party as to these two candidates was invalid.


However, it appears that the appellants are, by their motion, seeking to be declared the candidates of the Freedom Party, whereas, by their original complaint they sought to be the legal candidates of the Democratic Party.


The Order of the trial court is reversed and the case is remanded in order that the district court may consider the posture of the case in light of our ruling as to the certificate of nomination, and to enable the plaintiffs, if they see fit to do so, to make a determination as to which relief they now wish to seek before the court.


In the meantime, since it would be impossible, even if we were to grant the appellants' motion completely, to have the ballot adequately prepared, at least so far as relates to the absentee ballots, by Election day, it is ordered that the election in Greene County be stayed, either as to these two offices, or as to all county offices, at the election of the defendants. In other words, we leave to the defendants the decision whether they wish to delay election of all county offices, or of just these two offices. The district court will then determine such other issues as may properly be before it after determining what effect, if any, to give to a choice of remedies after such choice is made by the plaintiffs.


The Judgment of this Court will issue forthwith.