Order Granting Motion for Hansen to Appear Pro Hac Vice

    1946

SENATE OF THE UNITED STATES, 79th CONGRESS

SPECIAL COMMITTEE TO INVESTIGATE
SENATORIAL CAMPAIGN EXPENDITURES

IN THE MATTER

of
THE INVESTIGATION OF THE MISSISSIPPI 
DEMOCRATIC P R I M A R Y  CAMPAIGN OF 
SENATOR THEODORE G. BILBO, SENATOR, 

STATE OF MISSISSIPPI

BRIEF FOR THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE

Charles H . H ouston 
T hurgood M arshall  

Counsel for the National Association for 
the Advancement of Colored People.

R obert L. Carter 
M arion  W . P erry 
F ra n k l in  H. W illiam s

of Counsel.



1 9 4 6

SENATE OF THE UNITED STATES, 79th CONGRESS

SPECIAL COMMITTEE TO INVESTIGATE
SENATORIAL CAMPAIGN EXPENDITURES

I n th e  M atter

of

T h e  I nvestigation  of th e  M ississippi D emocratic 
P rim ary  Cam paign  of S enator T heodore Gr. 
B ilbo, S enator, S tate of M ississippi.

T o: T h e  H onorable, T h e  M embers of t h e  S pecial . Com m ittee  to

I nvestigate S enatorial Cam paign  E xpenditures—1946:

The National Association for the Advancement of Colored People 
respectfully requests leave to file the accompanying supplemental brief 
in the above-named investigation.

The National Association for the Advancement of Colored People 
for more than 37 years has dedicated itself to and worked for the 
achievement of a functioning democracy and equal justice under the 
Constitution and laws of the United States. This organization now 
represents 1407 branches in 44 states and the District of Columbia with 
a membership of more than 500,000. Its membership includes persons 
of all races and creeds.

Prom time to time, issues are presented to the courts and the legis­
lative bodies of the United States, the decision of which charts the 
future course of the evolving institutions in some vital area of our 
national life. Such an issue is presently being considered by your 
Committee.



2

The purpose of the immediate investigation is to ascertain whether 
the conduct of Senator-elect Theodore G. Bilbo, of Mississippi, during 
his 1946 Democratic Primary campaign in the said state was of such 
a nature as to taint with fraud and corruption the credentials for a 
seat in the Senate of the 80th Congress by the said Senator-elect 
Theodore G. Bilbo.

In behalf of our one-half million members and the people of the 
United States generally who are interested in the qualifications of our 
national legislators, the National Association for the Advancement of 
Colored People submits this brief for your consideration and respect­
fully urges that Senator-elect Bilbo be denied a seat in the Senate of 
the United States for the 80th Congress on the grounds that his acts 
and conduct during the 1946 Democratic Primary campaign in the 
State of Mississippi were contrary to sound public policy, harmful to 
the dignity and honor of the Senate, dangerous to the perpetuity of free 
government and have tainted with fraud and corruption his credentials 
for a seat in the Senate.

C harles H . H ouston 
T hurgood M arshall  

Counsel for the National Association for 
the Advancement of Colored People.

R obert L. Carter 
M arion  W . P erry 
F ra n k lin  H . W illiam s

of Counsel.



3

1 9 4 6

SE N A TE  OF T H E  U N ITE D  STATES, 79th CONGRESS

SPECIAL COMMITTEE TO INVESTIGATE
SENATORIAL CAMPAIGN EXPENDITURES

I n  th e  M atter

of

T h e  I nvestigation  oe t h e  M ississippi D emocratic 
P rim ary  C am paign  oe S enator T heodore G. 
B ilbo , S enator, S tate of M ississippi.

BRIEF FOR THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE

Nature of the Case

The Special Committee to Investigate Senatorial Campaign Ex­
penditures for 1946 was appointed pursuant to Senate Resolution No. 
224, 79th Congress, 2d Session. One of the specific considerations 
included within the scope of its powers was the investigation of the 1946 
Democratic Primary campaign conducted by Senator-elect Theodore 
G. Bilbo, Democrat, of the State of Mississippi. The Committee, having 
held public hearings in the City of Jackson, Mississippi, on the 2nd, 
3rd, 4th and 5th days of December, 1946, is now required to report its 
findings to the Senate and its recommendations for action to be taken 
thereon.

P  is respectfully submitted that this report should show that 
Senator-elect Bilbo was guilty of acts and conduct which were contrary



4

to sound public policy, harmful to the dignity and honor of the Senate, 
dangerous to the perpetuity of free government and of such a nature 
as to taint with fraud and corruption the credentials for a seat in the 
Senate presented by him; and, that based thereon the Senate should 
exclude him from a seat within its body for the 80th Congress by a 
majority vote at the time he presents himself to take the oath of office.

A n  examination o f the testimony, law, and precedents establishes 
that:

I.

The acts and speeches o f Senator Bilbo in his prim ary cam paign 
w ere contrary to sound public policy, constituted a known, open, and 
notorious violation o f the rights o f Negro citizens and voters o f said 
state to register to vote and to vote in said primary, which w ere guar­
anteed to them by the Constitution o f the United States, and his open, 
notorious and persistent incitement and exhortations to the white citi­
zens o f Mississippi to resort to fraud and coercion  to deny and deprive 
Negro citizens and voters o f Mississippi o f their right to register and 
vote in said prim ary so guaranteed them by the Constitution o f the 
United States, constitute conduct contrary to sound public policy, 
harm ful to the dignity and honor o f the Senate, dangerous to the 
perpetuity o f free  governm ent and taints with fraud and corruption 
the credentials for  a seat in the Senate presented by Senator-elect 
Bilbo.

II.

The primary election on July 2, 1946, by which Senator-elect Bilbo 
was chosen the candidate o f the Dem ocratic Party in Mississippi for 
the position o f United States Senator from  Mississippi, was not a free 
election, but was so thoroughly corrupted by fraud and violence induced 
or fom ented by the candidate, Senator-elect Bilbo, that it must be 
disregarded and any nomination based thereon held void.



5

The nomination o f  Senator-elect Bilbo and the placing o f  his name 
on the ballot in the Mississippi general election Novem ber 5, 1946, as 
a candidate o f  the Dem ocratic Party in Mississippi, fo r  the position o f 
United States Senator, is void because although Senator Bilbo received 
a m ajority o f  the votes actually cast in the prim ary election o f July 2, 
1946, he did not receive a m ajority o f the votes actually cast plus those 
votes which otherwise w ould law fully have been cast except for fraud, 
violence and corruption to w hich he was privy and which he coun­
tenanced and encouraged.

Jurisdiction
The jurisdiction of the Special Committee to Investigate Sena­

torial Campaign Expenditures, 1946, rests in Senate Resolution No. 
224 as representative of the full body of the United States Senate.

The jurisdiction of the United States Senate in the instant case is 
derived from Article I, Section 5, Clause 1, of the United States Consti­
tution, providing that “ each House shall be the judge of the elections, 
returns, and qualifications of its own members. ’ ’ This provision consti­
tutes each House of Congress the sole and exclusive judge of the elec­
tions and qualifications of its own members and deprives the courts of 
jurisdiction to determine those matters.1 Senatorial precedents, par­
ticularly those established in the cases of Senator-elect Prank L. Smith 
of Illinois, Senator-elect William S. Vare of Pennsylvania and others 
hereinafter cited, recognize the jurisdiction of the Senate to take the 
action requested in this brief.

Statement of Facts

The background against which Senator-elect Bilbo conducted his 
primary campaign and the political climate in which he made his exhor­
tations to the people of Mississippi must be understood for a correct 
appraisal of the gravity of his actions.

1 Barry v. United States, 279 U. S. 597; Kilbourn v. Thompson, 103 U. S. 68. 
See also: 107 A. L. R. 206.

III.



6

Mississippi is the state with the largest Negro population in pro­
portion to the white population. Statewide it is within a few thousand 
of the total white population. In some counties there is a large pre­
ponderant Negro population (Transcript, p. 765). This has caused 
white Mississippians to have a morbid fear of Negro political domi­
nation.

In 1890 Mississippi amended its state constitution for the purpose 
of establishing white political domination over the Negro.

“ Purposely that amendment was written by Senator George 
and adopted by the legislature in 1890, as they were trying to 
escape reconstruction and what had been wreaked upon the 
people in the South through a war-crazed gang in Washington 
that adopted the Fourteenth and Fifteenth Amendments, to use 
that as a means to eliminate the Negro from the polls.”  (Bilbo, 
p. 780).

From 1890 to 1946 the white people had the Democratic primary 
elections in Mississippi to themselves; there was no effective party of 
opposition and nomination in the primary was tantamount to election. 
(Testimony of T. B. Wilson, p. 21, Percey Greene, p. 54, Reverend Stan­
ley R. Brav, p. 98, E. R. Sanders, p. 619, Ben Cameron, p. 813, Bilbo, 
pp. 731, 754.)

Although Senator-elect Bilbo had to face four opponents in the 
primary election, not a vote was cast against him in the general elec­
tion November 5, 1946 (p. 731).

In 1944 the United States Supreme Court decided the Texas pri­
mary case, Smith v. Allwright (321 U. S. 649); in 1946 the United States 
Circuit Court of Appeals, Fifth Circuit, decided the Georgia primary 
case, King v. Chapman (154 F. (2d) 460). Both cases decided that 
qualified Negro voters could not be barred from a primary election 
which was under substantial state regulation and an integral part of 
the election process. The cases were officially considered by the State 
Democratic Executive Committee in Mississippi to determine whether 
it would thereafter be possible to continue to bar all Negroes from the



7

Mississippi Democratic primaries. The State Democratic Executive 
Committee decided that thereafter the Negro had a legal right to vote 
in the Mississippi Democratic primaries, but that it did not want him 
to vote. This decision was reached before Senator Bilbo began his 
active primary campaign, and is a vital part of the background against 
which he campaigned. (Testimony of George Butler, member State 
Democratic Executive Committee, pp. 823-830.)

In 1946 Mississippi passed a law exempting veterans from pay­
ment of poll taxes under certain conditions. A great movement of 
Negro veterans to register took place all over the state; aided by per­
sons interested in making the base of Mississippi elections more rep­
resentative of the people and of raising the Negro to first class citizen­
ship. There were 66,972 discharged Negro veterans in Mississippi, 
and practically 100% of them could read and write. (See statistics and 
discussion by Committee, pp. 491-493.)

Negroes organized a state wide voters league with local chapters. 
For the first time since 1890 the white people of Mississippi saw a 
substantial threat to their exclusive control of the Democratic primary. 
Senator Bilbo further knew that because of his past Negro-baiting and 
insulting conduct Negroes would vote against him, and that a sub­
stantial Negro vote would be sufficient to throw the primary election 
against him. Senator Bilbo was on the spot. It was against this back­
ground, in this political climate and with the certain knowledge that 
unless he eliminated the Negro voter from the primary election July 2, 
1946 his political career was ended, that he conducted a studied, per­
sistent and unrestrained campaign to eliminate the Negro voter from 
the primary.

Senator Bilbo at the hearings did not deny the substance of the 
newspaper reports and other charges against him of advocating the 
suppression of the Negro vote in the primary, except to deny that he 
had advocated the use of violence or illegal means. He admitted that 
if he could have “ legally”  prevented it not one Negro would have voted 
in the primary (p. 777), that he advocated persuasion to keep the Negro 
from the polls and that the best way to do it was to visit the Negro



the night before the election (p. 784); that he might be guilty of sug­
gesting heroic treatment of certain people (p. 789) and riding them 
out of town on a rail (p. 769) because the white people of Mississippi 
were sitting on a volcano (p. 770). He admits he exhorted red-blooded 
white men to protect Mississippi from political control by Negroes, 
but denies he advocated the use of other than lawful means (p. 747). It 
is significant that the uniform reports of the press and the testimony 
of the complaining witnesses uniformly fail anywhere to show that 
the Senator limited himself at any time to “ lawful means” .

Senator Bilbo filed the script of his last radio talk just before the 
primary to prove he advocated “ lawful means”  only. The fact the 
script contains such a passage is no proof that in the heat of his speech 
he actually used the phrase or so limited himself. Significantly enough 
the Senator does not testify that he followed the speech verbatim, and 
nobody in the record testified he knew that the Senator limited him­
self always to advocacy of “ lawful means” . A few defense witnesses 
said they had not heard him advocate violence or said they felt he would 
not do so; but that is all.

The Committee witnesses testified that Senator Bilbo advocated 
open defiance of the United States Supreme Court decision in Smith 
v. Allwright (Collier, p. 420); appealed to local officials to keep the 
Negro away from the polls (Wilson, p. 325); advised registration clerks 
to disqualify them by trick questions on the constitution (Bender, p. 
160; Dickey, p. 344); advised the election officials not to count Negro 
ballots but to put them aside in envelops (Jones, p. 186); promised 
to defend any white person who got in trouble for keeping a Negro 
from voting (Wilson, p. 15; Bender, p. 160), and assured the white 
people they would be safe from conviction since they would have to be 
tried before a white judge and a white jury (Bender, p. 160; Parham, 
p. 258; Bilbo, p. 764). He called the spectacle of Negroes voting in 
substantial numbers in the Gulfport municipal election June 4, 1946, 
a damnable exhibition of demagoguery (Strype, p. 301), and stated 
that Negroes were just 150 years from cannibalism (Hightower, p. 
712). Senator Bilbo admits he urged Negroes to stay away from the 
polls (p. 767).



9

The record refutes the view of certain members of the Committee 
that Senator Bilbo’s speeches had no effect on the white population and 
the potential Negro voters. “ But this year that opposition was in­
creased, in this special election that opposition was increased, it was 
intensified. . . . On account of the people were afraid that Mr. Bilbo’s 
advices to the white people to refuse to register them, and the people 
knew, knowing the people as they do, they thought that they would 
take that instruction not to register them, and they found they were 
doing that to some extent, and they feared to go.”  (Wilson, p. 19). 
“ I heard the speeches and saw them in the press releases, and I felt 
some of the fear that I think was engendered by the speeches.”  (Greene, 
p. 39). Reverend Bender testified he heard Negroes in all parts of the 
state express themselves as afraid to register or vote because of Senator 
Bilbo’s speeches (p. 163). Witness after witness testified that Senator 
Bilbo’s speeches intimidated the Negro voters (Spates, p. 189; Wolfe, 
p. 208; Reed, p. 217; Strype, p. 300; Dickey, p. 350; Love, p. 489; Eiland, 
p. 519; Franklin, p. 633). “ I stated that because of broadcasts and the 
newsj there were a number who were afraid to vote. . . .  I am referring 
to Senator Bilbo’s campaign speeches.”  (Moore, pp. 232-233).

Witnesses further testified that his speeches stirred up the white 
people. “ I had several white friends in Grenada that said they didn’t 
appreciate the speeches coming from Senator Bilbo, that it was accumu­
lating hatred between the Negro and the white man in the State of Mis­
sissippi.”  (Hightower, p. 710; see also: Collins, pp. 530-538; Wilson, 
p. 561.) Emmett E. Reynolds, Circuit Clerk, Louisville, testified con­
cerning Senator Bilbo’s speeches: “ Well, of course, it didn’t do me 
any good to hear those things.”  (p. 381). One of the witnesses called 
by Senator Bilbo himself testified: “ I think the statements attributed 
to Senator Bilbo were for the purpose of getting the unthinking white 
men to vote for him . . . Well, a man that would vote for him on some 
matter of prejudice rather than policy or something of that sort.”  
(Creekmore, pp. 820-821).

In a state-wide political campaign it is impossible to explore the 
mind of each individual voter or citizen, but the fact that so many



10

Negroes and white people would volunteer to come at their own expense, 
without the protection of subpoena, to testify to the general state of 
intimidation and fear caused by Senator Bilbo’s speeches—realizing 
they had to return to their home communities and face the officials they 
testified against—shows that if the Committee had been as energetic 
and solicitous in using its subpoena power to produce testimony against 
the Senator as it was solicitous in producing or trying to produce testi­
mony for him, the record would have shown the full extent of the intimi­
dation and terror caused by Senator Bilbo’s campaign speeches.

As it was the witnesses who did appear represent a true sampling 
of the various sections of the state: *

Father Strype, Pass Christian (S. E. Mississippi)
Dickey, McComb (S. W. Mississippi)
Love, Gulfport (S. E. Mississippi)
Eiland, Louisville (E. Central Mississippi)
Franklin, Tougaloo (Central Mississippi)
Hightower, Grenada (N. Central Mississippi)
Collins, Greenwood (N. W. Mississippi)
Clark Wilson, Greenwood 
Reynolds, Louisville
Creekmore, Jackson (Central Mississippi)
Spates, Jackson 
Wolfe, Jackson 
Reed, Jackson

No serious attempt was made to deny wholesale fraud and intimi­
dation of Negro voters in the registration and voting in the July 2, 1948 
primary, both by officials and by white private citizens.

Qualified Negro voters were denied registration by triekey, catch 
questions put to them by the Circuit Clerks (McComb, N. Lewis, p. 269; 
M. Lewis, p. 320; Greenville, Brown, p. 134; Body, p. 139; Myles, pp. 
146-147; Tylertown, Dillon, p. 608). The Circuit Clerk took the stand 
and admitted they put questions to Negroes which they did not put to 
white, and made it harder for Negroes to register than white (Cocke, 
p. 365, Holmes, p. 395). The Circuit Clerks would procrastinate and

* See : Appendix A.



11

delay registration of Negroes (Dowdy, p. 137; Gladney, p. 451; Eiland, 
p. 515; Hamm, p. 696). Negroes were prevented from registering by 
threats of violence from peace officers (Lewis, p. 238).

At the polls Negroes were challenged on the ground they had not 
been affiliated with the Democratic party for two years, whereas the 
Mississippi statute, sec. 3129, Miss. Code, 1930, merely requires “ with­
in”  two years (Affidavit, Junkin, election manager, p. 646). Negroes 
were assaulted at the polls by peace officers (Bender, p. 159; Daniels, 
pp. 282-287; Williams, p. 506). Peace officers refused to protect 
Negroes at the polls when others assaulted them (Collier, p. 412).

Election officials refused to let Negroes deposit their ballots in the 
ballot box, without stating the ground of challenge except that all Negro 
ballots were to be placed in envelops—exactly what Senator Bilbo had 
instructed (Lovelady, p. 109, Hodges, p. 117, Hunter, p. 124; Jones, p. 
183, Harris, p. 222, Wilson, p. 222, Knott, p. 222).

Instead of officials upholding the rights of qualified Negroes to 
vote and giving them protection, they uniformly advised Negroes to 
surrender their rights to register and vote “ to avoid trouble”  (Hathorn, 
p. 102, Parham, p. 248, Reynolds, p. 377, Moore, pp. 402, 407, Collins, p. 
527, Moore, p. 597, Raiford, p. 613, Hightower, p. 707, Bostick, p. 719).

In some places, the officials themselves just flatly refused to let any 
Negro vote (e. g., Pass Christian,—Strype, pp. 295, et seq., Guyot, p. 
309, Roberts, p. 313, Garriga, p. 649).

White private citizens, with the certain knowledge and advice of 
Senator Bilbo that they were safe from conviction, added their share 
of intimidation and violence to keep Negroes from registering and 
voting (Fletcher, pp. 56, 81; Hathorn, p. 102; Bender, p. 158; Parham, 
pp. 247, 250; Collier, p. 412; Prichard, p. 582). They joined with officials 
or acted alone in advocating and advising Negroes not to exercise their 
rights to ‘register and vote in the primary “ to avoid trouble”  (Collins, 
p. 527, Steele, p. 558; see also Dickey, p. 346, Parham, p. 257).



12

It apparently never penetrated the consciousness of Senator Bilbo, 
any Mississippi official or white citizen working with them that the 
guarantee of a rule of law and order lies in upholding legal rights, not 
in surrendering them. Once again those witnesses testifying to sup­
pression, fraud and violence come from all sections of the State, show­
ing the conditions were not localized but were state wide.

Mississippi law requires that where a candidate does not receive 
a majority of the votes cast in the primary he shall enter a run-off 
primary even if he otherwise leads the field (Miss. Code, 1930, sees. 
3109 et seq.). Senator Bilbo merely claims a primary majority of 
3,834 votes, but when the large Negro population and 66,972 discharged 
Negro veterans in Mississippi are considered it is plain his majority 
vanishes.*

“ Of course, I knew they were going to vote against me 
because they were being organized and led to the polls by the 
C. I. O.-P. A. C. and all this Communistic bunch, men like Bloch 
yonder. The C. I. 0. had representatives here in the hotels 
throughout the campaign. They put up the money in the cam­
paign. They helped to organized and all that. They were mess­
ing with the nigger. . ; . No, sir, I didn’t want any of them to 
vote. . . . Would you want somebody to vote that you knew was 
going to vote against you.”  (Bilbo, pp. 782-783).

We submit that the testimony shows a state-wide condition of in­
timidation not merely of individual Negroes, but of large blocks of 
Negroes (e. g. Pass Christian, p. 297; Jackson, p. 42; Greenwood, pp. 
538-539; Holly Springs, p. 675; Grenada, p. 723).

“ The only other thing I did was to ask them to read the 
section of the Constitution of the State of Mississippi where it 
explains the election of the Governor of the State of Mississippi. 
I did not require that of the whites, but I did require it of the

* W e further challenge the election of Senator Bilbo on the ground that at the 
minimum he should have been thrown into a run-off primary under Mississippi law 
on the ground that he did not have a true majority of the votes cast at the primary 
election and of the votes which lawfully would have been cast therein except for 
fraud and coercion induced and fomented by him.



13

colored. . . .  I have no other reason than that they were col- 
; ored. . . .  As I said a little while ago to this gentleman (indi­

cating the Chairman) we want the primaries white and anything 
that will make it a little bit harder for the colored man to become 
a voter, that is the way I look at it.”  (Clifford R. Field, Circuit 
Clerk of Adams County, Natchez, pp. 731, 739).

Leaving out the inherent vice of the primary election as a con­
trolled, restricted election, the facts conclusively demonstrate that 
Senator Bilbo did not receive the nomination by an expression of a 
majority of the qualified Democratic voters of Mississippi, through the 
primary held July 2, 1946, and that under Mississippi law he was 
improperly on the ticket in the general election November 5, 1946, and 
that his election is therefore irregular and void.

I.

The Right of Negroes to Vote in Primary Elections Was 
Wei! Established Prior to the Campaign of 

Senator-elect Bilbo

The United States is a constitutional democracy. Its organic law 
grants to all citizens a right to participate in the choice of elected 
officials without restriction because of race. The right of citizens not 
to be discriminated against because of race in voting at general elec­
tions has never been questioned since the adoption of the 15th Amend­
ment. The right of citizens to register and qualify as electors without 
distinction as to race or color has been firmly established in the cases 
of Lane v. Wilson1 and Guinn v. United States,1 2 It is therefore clear 
that the right to vote in the election of federal officers and the right to 
do so without distinction as to race or color are rights grounded in the 
federal Constitution. These rights protected by the federal Consti­

1 307 U. S. 268.
2 238 U. S. 347.



14

tution extend to each and every step of the electoral process and em­
brace primary as well as general elections.8 As the United States 
Supreme Court said in the case of United States v. Classic:

“ Where the state law has made the primary an integral part 
of the procedure of choice, or where in fact the primary effec­
tively controls the choice, the right of the elector to have his 
ballot counted at the primary, is likewise included in the right 
protected by Article I, Section 2. And this right of participation 
is protected just as is the right to vote at the election, where the 
primary is by law made an integral part of the election ma­
chinery, whether the voter exercises his right in a party primary 
which invariably, sometimes or never determines the ultimate 
choice of the representative. ’ ’

Prior to the primary campaign of Senator-elect Bilbo, the right 
of Negroes to vote in such primary had been clearly established. In 
the case of Smith v. Allwright, the United States Supreme Court recog­
nized the right of Negro electors to vote in primary elections in states 
where the primary is an integral part of the election machinery of the 
state. This principle was re-emphasized in the case of King v. Chap­
man.1'

A. In Mississippi the Primary Is by Law an Integral 
Part of the Election Machinery

The Constitution and statutes of Mississippi affecting and control­
ling the conduct of primary elections in that state are of such an all- 
inclusive nature that party primaries are clearly an integral part of the 
election machinery of that state.

Article XII, Section 248 of the Constitution of Mississippi pro­
vides: “ The legislature shall enact laws to secure fairness in party 
primary elections, conventions, or other methods of naming party 
candidates.”  In interpreting this constitutional provision it was held 3 4

3 Smith v. Allwright, 321 U. S. 649; United States v. Classic, 313 U. S. 299.
4 154 F. (2d) 460 (C. C. A. 5th, decided March 6, 1946).



15

that it authorizes the nomination of public officers by primary election 
exclusively.5

Article XII, Section 249 of the Constitution of Mississippi pro­
vides: “  . . . registration under the Constitution and laws of this state 
by the proper officers of this state is hereby declared to be an essential 
and necessary qualification to vote at any and all elections.”

Pursuant to the constitutional requirement contained in Section 
247, the Mississippi State Legislature enacted an entire chapter of the 
Code, devoted solely to primary elections. (Title 14, Chapter 1, Sec. 
3105-3203-Miss. Code-1942.) These statutes control every conceiv­
able phase in the operation of a party primary in the state. In Section 
3105, the following language can be found: “ All primary elections
shall be governed and regulated by election laws of the state in force 
at the time the primary election is held . . . ”  Thus, in the statute, 
there appears the clear intent of the state to make party primaries an 
integral part of its election machinery.

The statutes affecting and governing primary elections run the 
gamut of control from modes of nominating state, district, and other 
officers (3105), dates of primaries (3110, 3111) as amended by Laws 
of 1944 (ch. 173), manner of recording registrants (3112, 3113, 3114), 
form of ballot (3124), ballot boxes (3126), voting hours (3164), to poll 
tax exemptions (3199).6 The clear cumulative effect is to bring the 
Democratic Party primary in Mississippi into the election machinery 
of the state.

B. Primary in Mississippi Effectively Controls 
Choice of Officers

The primary in Mississippi not only meets the above test, as set 
forth in the Classic and Alhvright cases, but also meets the alternative 
test in that it “ effectively controls the choice of officers.”

5 Mclnnis v. Thames, 80 Miss. 617, 32 So. 286.
6 Sections referred to are from the Mississippi Code.



16

The candidate who is successful in the party’s primary is assured 
of victory at the general election for two reasons: (1) an unsuccessful 
primary candidate may not be a candidate in the general election on 
his party’s ballot (Op. Atty. Gen. 1931-33, p. 37), Ruhr v. Cowan, 146 
Miss. 870, 112 So. 386; and, (2) the only candidates who may run at 
the general election are those nominated in the preceding primary 
(Tit. 14, Chap. 1, Sec. 3111 and 3156 Miss. Code).

No party other than the Democratic Party has held an organized, 
state-wide primary in Mississippi for the last 56 years. Since 1892, 
the Democratic nominees for United States Senator, Eepresentative in 
Congress, Governor and other state officers nominated at these pri­
maries have been elected at ensuing general elections. For all intents 
and purposes there is but one party in Mississippi—the Democratic 
Party (E. 793ff).

This fact has become so apparent to qualified electors of Missis­
sippi that interest in the general election is practically non-existent 
(E. 21, 54, 98, 813). The complete control over the choice of officers 
that is held by the Democratic Primary in Mississippi can best be illus­
trated by owrds of Senator Bilbo, in discussing the general election: 
“ It wasn’t necessary for anybody to go. As a matter of fact, I didn’t 
have any opponent. I could have just gone and voted for myself and 
been elected.”

It is apparent, therefore, that under both of the alternatives set 
forth in the Classic and Allwright cases the right to vote in the primary 
in Mississippi without discrimination because of race or color is pro­
tected by the federal Constitution. In other words, there cannot be a 
lawful “ white Democratic Primary”  in Mississippi as alleged by Sena­
tor Bilbo (see testimony, E. 729ff).

Prior to the primary campaign of Senator-elect Bilbo, the right of 
Negroes to vote in the primary was not only well established at law, 
but was recognized by officials of Mississippi, including the State Demo­
cratic Executive Committee. A  special committee of the State Demo­
cratic Executive Committee, after careful consideration of the prece­
dents cited above, concluded that Negroes had the right to vote in the



17

primary elections (E. p. 826). This decision of the State Democratic 
Executive Committee was made before Senator-elect Bilbo began his 
active campaign (E. p. 830).

II.
Use of Force or Intimidation to Prevent Negroes 
from Registering for and Voting in Democratic 
Primaries in Mississippi Is Sufficient to Invalidate 

Election of Senator-elect Bilbo

State courts have clearly established the principle that where quali­
fied electors, sufficient in number to have changed the result of the 
election, were corruptly and fraudulently deprived of an opportunity 
to vote, the election is void.1

The true effect of intimidation and violence upon elections has been 
set forth as follows: “ It is the essence of free elections that the right 
of suffrage should be exercised without coercion or the deterrent of 
any intimidation or influence. An election will be set aside, or the 
returns from a particular precinct rejected, on the grounds of threats, 
intimidation or violence, when the threats, intimidation or violence 
change the result or render it impossible to ascertain the true result 
with certainty, but threats, violence or disturbances not materially 
affecting the result will not invalidate an election. Some authorities hold 
that if the progress of the election was not in fact arrested, there must 
have been such a display of force as ought to have intimidated men of 
ordinary firmness, but according to other authorities, the general rule 
applies regardless of the personal courage of the voters deterred. 
While a threat must be serious, citizens are not bound to fight their 
way to the polls. Threats or intimidation exist where there is a putting 
in fear; and there may be a moral intimidation independent of threats 
or violence or physical injury . . .  . ”  1 2

1 Montova v. Ortiz, 24 N. M. 616; Snyder v. Blake, 35 Okl. 294: Martin v. 
McGarr, 27 Okl. 653.

2 29 C. J. S. (Elections) Sec. 220, p. 323.



18

This is particularly true where the deterrent to the free exercise 
of the ballot is directed against members of a class. Thus a referendum 
held in the City of Des Moines was declared null and void where the 
denial of the right to vote was directed at all women as such and where 
this denial was widely publicized in the press and in discussions in 
women’s organizations with the result that only three women presented 
themselves to vote. There the Iowa Supreme Court stated:

‘ ‘ The distinction must be kept in mind between depriving the 
individual of the ballot because of some disqualification peculiar 
to himself and the denial thereof to an entire class of voters.” 3

While the court recognized no remedy in the former case, the court 
stated that in the latter case if the class is numerous enough to have 
changed the result, a remedy exists.

“ The denial is then in the nature of oppression and operates 
to defeat the very purpose of the election.” 4

A similar decision was rendered by the Superior Court of Warren 
County, Ga., where municipal elections were declared void when held 
under a local law limiting voting to white citizens, upon a showing that 
there existed in the town persons of color qualified to vote in numbers 
sufficient to have changed the result of the election.5 In a recent case 
decided in 1941, by a District Court of Appeals in California, it was 
determined that the vote on a bond issue in a school district must be 
declared void where threats and intimidation were applied to third 
persons in order to prevent qualified voters from voting and thus 
deterred qualified voters from the free exercise of the franchise in suf­
ficient numbers to affect the outcome of the election. The court found 
that the coercion while applied to third persons “ was equally effective 
in accomplishing its intended purpose as though it had been directly

3 Coggeshall v. City of Des Moines, 138 Iowa 730.
4 Ibid.
5 Howell v. Pate, 119 Ga. 537.



19

applied to the qualified electors who failed to vote.”  6 Early decisions in 
courts of many states have established that:

“  An election to be free must be without coercion of every 
description. An election may be held in strict accordance with 
every legal requirement, yet if in point of fact the voter casts 
the ballot as the result of intimidation; if he is deterred from 
the exercise of his free will by means of any intimidation what­
ever, although there be neither violence nor physical coercion, it 
is not a free and equal election within the spirit of the consti­
tution. ’ ’ 7

Precedents established by the courts of last appeal of many states 
have thus established the principle that any deterrent of the free exer­
cise of the ballot which affects a sufficient number of voters to change 
the result of the election had they voted for the next highest candidate 
render the election void regardless of the responsibility for such activi­
ties. 8

The Senate of the United States can have no lower standards for 
judging the validity of the elections which furnish the basis for the 
credentials presented by a Senator than are used by the States for 
judging the validity of elections of state officials.

The acts and speeches of Senator Bilbo and his open and persistent 
incitement and exhortations to the white citizens of Mississippi to 
resort to fraud and coercion to deprive Negroes of their right to vote 
effectively prevented large numbers of Negroes from registering and

6 Williams v. Venneman, 42 Cal. App. (2d) 618.
7 DeWalt v. Bartley, 146 Pa. St. 529.
8 Inmates of an asylum refused, they being of sufficient number to change elec­

tion result; Renner v. Bennett, 21 Ohio St. 431.
Polls closed early on improper notice of election voided election in following 

cases: Barry v. Lauch, 5 Coldw. 588, Newcum  v. Kirtley, 113 B. Mon. 515; Re 
Johnson, 40 U. C. Q. B. 297; Woodward v. Sarsons, L. R. 10 C. P. 733 (Parlia­
mentary election).

Failure to provide opportunity to persons qualified to register voided election 
where group denied was materially large enough to affect result, McDowell v. Mass. 
& S. Constr. Co., 96 N. C. 514, 2 S. E. 351; State ex  rel. Harris v. Scarborough, 
110 N. C. 232, 14 S. E. 737.



20

voting. The transcript of testimony of the hearings in this inquiry 
is replete with testimony of actions of violence, intimidation and coer­
cion induced or fomented by Senator Bilbo. Negro voters in suf­
ficient number to have deprived Senator Bilbo of the majority of votes 
necessary for nomination at the first primary were thereby prevented 
from voting.

III.

The Authority of the Senate to Exclude Senator-elect 
Theodore G. Bilbo from a Seat in the Senate of the 80th 
Congress at the Time He Presents Himself to Take the 
Oath of Office Is Clear Under the Senate’s Constitutional 

Power and Precedents Established in Prior Cases

The jurisdiction of the United States Senate is derived from 
Article I, Section 5, Clause 1 of the United States Constitution, pro­
viding that “ Each House shall be the Judge of the Elections, Returns 
and Qualifications of its own members.”  This provision constitutes 
each House of Congress the sole and exclusive judge of the elections 
and qualifications of its own members and deprives the Courts of juris­
diction to determine those matters.1 This constitutional grant of power 
to the Senate is interpreted to mean that even though a Senator-elect 
possesses all of the qualifications set out in Article I, Section 3, Clause 
3 of the Constitution,1 2 the Senate may “ judge”  him disqualified to sit

1 Barry v. United States, 279 U. S. 597; Kilbourne v. Thompson, 103 U. S. 
68. See also: 107 A. L. R. 206.

2 “ No person shall be a Senator who shall not have attained to the age of 30 
years and been 9 years a citizen of the United States and who shall not when 
elected be an inhabitant of that state for which he shall be chosen.”



21

within its body and declare his seat vacant because of acts or conduct 
which “ taint”  his credentials with fraud or corruption.3

In the cases of Senators-elect Frank L. Smith of Illinois and 
William S. Vare of Pennsylvania, it was squarely held that corrupt 
actions amounting to implicit or implied bribery by a Senator-elect or 
such action done with his knowledge or encouragement, which did not 
actually affect the result of the elections, may still affect the validity 
thereof, thereby furnishing grounds for exclusion from a seat in the 
Senate by a majority vote.4 These cases also squarely settled the right 
of the Senate to consider acts which corrupt only the Primary election 
as sufficient to come within their power to “ judge the elections and 
returns”  of their members.

On the 17th day of May, 1926, the Senate of the 69th Congress 
appointed a special committee to investigate and report on campaign 
expenditures, promises, etc., made to influence the nomination of any 
person as a candidate or to promote the election of any person as a 
member of the Senate at the general election to be held in November 
1926. This committee, pursuant to the resolution, investigated the 
campaigns of Frank L. Smith of Illinois and William S. Vare of Penn­
sylvania.

The investigation in Illinois showed that Senator-elect Frank L. 
Smith had expended over $450,000 in his 1926 primary campaign. It 
further showed that over $200,000 of this money had come from utility 
companies under the control of the Illinois Commerce Commission, of

3 Prior cases in which exclusion was based upon this principle: Phillip F.
Thomas, Senator-elect from Maryland, 40th Congress, charged with disloyalty in 
that he gave his son $100 and his blessing when he went off to fight for the Con­
federacy.— Excluded (Senate Election Cases, 1879-1903, Taft, Furber and Buck, 
pp. 333-339; Cong. Globe, pt. 2, 40th Cong., 2nd Sess., pp. 1260-1271; Feb. 19, 1868. 
ITinds Precedents, Vol. 1, pp. 466-470).

B. F. Whittemore, House of Rep., 1870, found guilty of selling a cadetship, 
resigned to escape expulsion; was re-elected and was excluded when he attempted 
to return. (Hinds Precedents, Vol. 1, p. 47).

Brigham Roberts, House of Rep., an admitted polygamist from Utah, excluded 
(53 Cong., Jan. 20, 1900, Hinds Precedents, Vol. 1, Section 447, p. 529, et seq.).

4 This issue had never been squarely settled before. See: Appendix B.



22

which Smith was a member, and that the receipt and granting of such 
money constituted a misdemeanor under Illinois statutes.

Its investigation in Pennsylvania showed numerous instances of 
fraud and corruption in behalf of the candidacy of William S. Yare. 
It further showed that there had been expended in his behalf at the 
primary election a sum exceeding $785,000.

The committee presented these facts in its final report to the Senate 
of the United States.

On the 5th day of December, 1927, the opening day of the 70th 
Congress, Senator-elect Smith, having previously filed his certificate 
of election, appeared with Senator-elect Yare and others to take the 
oath of office. At this point, Senator Norris presented Senate Resolu­
tion No. 1, which recited the previous appointment of the special com­
mittee by the 69th Congress, the facts about the receipt and expendi­
ture of money by Smith theretofore filed with the Senate, and concluded 
with the following clauses:

“ Resolved, That the acceptance and expenditure of the vari­
ous sums of money aforesaid in behalf of the candidacy of the 
said F ran k  L. S m it h  is contrary to sound public policy, harmful 
to the dignity and honor of the Senate, dangerous to the per­
petuity of free government, and taints with fraud and corruption 
the credentials for a seat in the Senate presented by the said 
F ran k  L. S m it h  ; and be it further

“ Resolved, That the said F ran k  L. S m it h , is not entitled 
to membership in the Senate of the United States.” 5

The exact procedure on the same day was followed in connection 
with the case of Senator-elect Vare.

On December 6, 1927, Senator Norris, in support of his resolution, 
said:

“ The question as to whether Mr. S m it h  and Mr. Y are should 
be seated pending the decision of the question as to whether 6

6 70th Cong., 1st Sess., Cong. Rec., vol. 69, pt. 1, p. 3.



23

they will be allowed to remain here permanently is another point 
involved. It is true that in ordinary cases a Senator is sworn 
in upon the presentation of his certificate of the election and, 
if his right to a seat here is then contested, he remains in the 
Senate as a Member until that question is finally determined 
by the Senate. That procedure is followed because, in the ordi­
nary case, the only official evidence that the Senate has of the 
election or the qualifications of one claiming the right to be a 
Member of the Senate is the certificate of election. No other 
evidence of an official kind is ordinarily in the possession of the 
Senate, and hence, when the Senate is called upon to act, either 
to permit or to refuse to permit the applicant to take the oath 
of office, there is no evidence except the certificate of election. 
It, as everyone knows, is only prima facie evidence of the facts 
which it purports to state.

“ In the case of Mr. S m it h  and Mr. V are an entirely different 
proposition confronts the Senate. The Senate has appointed its 
committee and directed it to make an investigation, and in obedi­
ence to the commands of the Senate, the committee has gone 
into Illinois and Pennsylvania and made an investigation.

“ The committee has reported the results of its investigation 
to the Senate. It has submitted to the Senate the sworn testi­
mony taken in this investigation and, therefore, the Senate is 
now, and has been for many months, in possession of the official 
information contained in the report of the committee and the 
evidence which it has taken. Therefore at the very threshold 
the certificates of election of these men are challenged by this 
report and this evidence. It is worthy of note, also, that both 
Mr. Vare and Mr. Smith appeared in person before this com­
mittee and testified, and that the facts reported by the committee 
stand practically uncontradicted.

“ Taking this evidence and the report of the committee upon 
its face value, it absolutely annihilates the presumption in favor 
of the certificates of election. It brings both cases clearly wdthin 
the rule laid down by the Senate in the Newberry case, and if 
the Senate still adheres to that rule and desires to enforce the 
principle of government therein enunciated it will refuse to per­
mit either of these gentlemen to be seated.” 8 6

6 70th Cong., 1st Sess., Cong. Rec., vol. 69, pt. 1, p. 122.



24

Senator .Deneen then offered to amend the Norris resolution to 
the effect that Frank L. Smith is entitled to be sworn in as a member 
of the Senate upon his prima, facie case.7 This amendment was de­
feated.

Thereafter, the Norris resolution, still denying Smith the right to 
the oath, but, having been amended to afford him a further right to be 
heard and the privilege of the floor to answer in his own defense, when 
the matter came up for final Senate action, on December 7, 1927, was 
carried.8

On January 17, 1928, the committee reported that “ Smith was not 
entitled to take the oath of office and is not entitled to membership . . . 
and that a vacancy exists . . . . ”  Thereafter, on January 19, 1928, 
after extensive debate the Senate adopted the following resolution and 
preamble:

“ Whereas on the 17th day of May, 1926, the Senate passed 
a resolution creating a special committee to investigate and de­
termine the improper use of money to promote the nomination 
or election of persons to the United States Senate, and the em­
ployment of certain other corrupt and unlawful means to secure 
such nomination or election

“ Whereas said committee in the discharge of its duties 
notified F ran k  L. S m it h , of Illinois, then a candidate for the 
United States Senate from that State, of its proceeding, and the 
said F ran k  L. S m it h  appeared in person and w as permitted to 
counsel with and be represented by his attorneys and ag’ents.

“ Whereas the said committee has reported—
“ That the evidence without substantial dispute shows that 

there was expended directly or indirectly for and on behalf of 
the candidacy of the said F ran k  L. S m it h  f o r  the United States 
Senate the sum of $458,782; that all of the above sum except 
$171,500 was contributed directly to and received by the personal 
agent and representative of the said F ran k  L. S m it h  with his 
full knowledge and consent; and that of the total sum aforesaid

7 70th Cong., 1st Sess., Cong. Rec., vol. 69, pt. 1, p. 160.
8 70th Cong., 1st Sess., Cong. Rec., vol. 69, pt. 1, pp. 161-162.



25

there was contributed by officers of large public-service insti­
tutions doing business in the State of Illinois or by said insti- 
tions the sum of $203,000, a substantial part of which sum was 
contributed by men who were nonresidents of Illinois, but who 
were officers of Illinois public-service corporations.

“ That at all of the times aforesaid the said F ran k  L. S m it h  
was chairman of the Illinois Commerce Commission, and that 
said public-service corporations commonly and generally had 
business before said commission, and said commission was, 
among other things, empowered to regulate the rates, charges, 
and business of said corporations.

“ That by the statutes of Illinois it is made a misdemeanor 
for any officer or agent of such public-service corporations to 
contribute any money to any member of said commission, or for 
any member of said commission to accept such moneys upon 
penalty of removal from office.

“ T hat said  S m it h  has in  no m anner con troverted  the truth  
o f  the fo re g o in g  fa cts , a lthough  fu ll  and com plete  op p ortu n ity  
w as g iven  to him , not on ly  to present evidence but argum ents in 
his b e h a lf ; and

“ Whereas the said official report of said committee and the 
sworn evidence is now and for many months has been on file with 
the Senate, and all of the said facts appear without substantial 
dispute; Now therefore be it

“ Resolved, That the acceptance and expenditure of the 
various sums of money aforesaid in behalf of the candidacy of 
the said F r an k  L. S m it h  is contrary to sound public policy, 
harmful to the dignity and honor of the Senate, dangerous to 
the perpetuity of free government, and taints with fraud and 
corruption the credentials for a seat in the Senate presented by 
the said F ran k  L. S m it h  ; and be it further

“ Resolved, That the said F ran k  L. S m it h  is not entitled to 
membership in the Senate of the United States, and that a 
vacancy exists in the representation of the State of Illinois in 
the United States Senate.” 9

9 70th Cong., 1st Sess., Cong. Rec., vol. 69, pt. 2, pp. 1582-1597, 1665-1672, 
1703-1718.



26

It is clear from a reading of this resolution that Smith was excluded 
from the Senate. He had never been administered the oath nor allowed 
to take his seat in the Senate chamber.

The case of Senator-elect Vare, involving even greater primary 
expenditures, resulted in the same preliminary procedure in the 70th 
Congress and the same reference to the committee for furthr oppor­
tunity for Yare to appear in person. However, Vare became fatally ill 
before he could avail himself of the opportunity to appear so that the 
Senate never had an opportunity to vote a final exclusion resolution.

The Smith and Vare cases recognized the rule that an election is 
invalidated by a single act of bribery or corruption participated in, 
encouraged or condoned by the Senator-elect, though not affecting the 
numerical result.10

Considering the fact that neither the Senate nor its committee in 
the Smith case found that the sums of money used by him were used 
to purchase votes sufficient to change the result or that a single voter 
or worker was bought, bribed or influenced with this money by Smith 
or his supporters with his knowledge, expressed or implied, it must be 
concluded that the acceptance and expenditure of this money in connec­
tion with an election, even a primary election, of itself was an act 
“ contrary to sound public policy, harmful to the dignity and the honor 
of the Senate, dangerous to the perpetuity of free government and 
taints with fraud and corruption the credentials for a seat in the Senate 
presented by the said Frank L. Smith. ’ ’

Thus the last word of the Senate construing its right as well as 
power to “ judge the elections”  of its members not only holds that as 
a Senate it has the power to consider acts done in a primary as sufficient 
to invalidate the credentials for a seat, but that a new standard, unre­
lated to the old rules applicable to bribery and corruption, prevailing

10 See: Appendix B.



27

prior to the adoption of the Seventeenth Amendment, has been estab­
lished; namely, that acts which are

“ contrary to sound public policy, harmful to the dignity and 
honor of the Senate, dangerous to the perpetuity of free govern­
ment . . . ”

affect “ the credentials”  presented by the Senator-elect so that the 
validity of the election is involved and the Senator-elect can be ex­
cluded.11

It happened that in the Smith case the acceptance and expenditure 
of vast sums of money in connection with a primary election were the 
facts which constituted the prohibited acts, but, if the principle be 
sound, and it is, then the principle remains as a living, vital part of 
our democratic way of life. Since this is true, then any other or dif­
ferent acts, which likewise fall within this prohibition when measured 
by sound standards of morality and democratic values, will also meet 
the standard.

IV.

The Acts and Conduct of Senator-Elect Theodore G. 
Bilbo During his 1946 Democratic Primary Campaign in 
the State of Mississippi Clearly Fall Within the Prohibi­
tions of the Legislative Rule Established by the Senate 

in the Smith and Vare Cases.

When the principles established by the Smith and Vare cases are 
applied to the facts set forth in this brief on pages 5 to 13, it is 
clear that Senator-elect Bilbo’s actions in the primary election in 
Mississippi fall directly within the Smith and Vare cases and he must 
therefore be excluded. 11

11 See Senator Borah, supra, and Senator Reed of Pennsylvania in the Vare 
case, who offered to stipulate that if Vare was allowed to take the oath, the Senate 
clearly had the power, thereafter, to exclude him by a majority vote— (Cong. Rec., 
70th Cong., vol. 69, pt. 1, pp. 298-9, December 9, 1927).



A cts and Conduct “ Opposed to Sound Public Policy”

The American way of life is dedicated to the perfection of a class­
less democratic society in which race, creed and national origin are 
invalid and irrational criteria. Our government was founded on the 
principle that all men are created equal. Our Constitution and our 
national institutions are dedicated to the achievement of that concept. 
The public policy of the United States condemns discrimination based 
on race, creed or color.

History has proved that freedom cannot exist where classifications 
and distinctions because of race or color are tolerated. Our govern­
ment, in recognition of this historical fact, has long been dedicated to 
the achievement of racial and religious freedom, not only in the United 
States, but throughout the world. In recognition of this principle, 
specific provisions were added to the United States Constitution to pre­
vent the erection of distinctions and classifications on the basis of race 
or color.

In Strauder v. West Virginia,1 the Supreme Court stated in com­
menting upon the purpose of the Fourteenth Amendment:

“ What is this but declaring that the law in the States shall 
be the same for the black as for the white, shall stand equal 
before the laws of the States, and, in regard to the colored race, 
for whose protection the Amendment was primarily designed, 
that no discrimination shall be made against them by law because 
of their color? The words of the Amendment, it is true, are 
prohibitory, but they contain a necessary implication of a posi­
tive immunity, or right, most valuable to the colored race—the 
right to exemption from unfriendly legislation against them dis­
tinctly as colored; exemption from legal discriminations, imply­
ing inferiority in civil society, lessening the security of their 
enjoyment of the rights which others enjoy, and discriminations 
which are steps toward reducing them to the condition of a sub­
ject race.”

28

1 100 U. S. 305, 308.



29

In Hirabayashi v. United States,2 3 the late Chief Justice S tone , 
writing the majority opinion, said at page 100:

“ Distinctions between citizens solely because of their an­
cestry are by their very nature odious to a free people whose 
institutions are founded upon the doctrine of equality. For that 
reason, legislative classification or discrimination based on race 
alone has often been held to be a denial of equal protection.”

Mr. Justice M u r p h y , concurring, said at pages 110, 111:
“ Distinctions based on color and ancestry are utterly incon­

sistent with our traditions and ideals. They are at variance with 
the principles for which we are now waging war. We cannot close 
our eyes to the fact that for centuries the Old World has been 
torn by racial and religious conflicts and has suffered the worst 
kind of anguish because of inequality of treatment for different 
groups. There was one law for one and a different law for an­
other. Nothing is written more firmly into our law than the com­
pact of the Plymouth voyagers to have just and equal laws.”

The Senate of the United States has recently ratified and adopted 
the Charter of the United Nations which is now a part of our funda­
mental law.8 Under its provisions, and specifically by virtue of Article 
55(c) thereof, our government is obligated to promote “ uniform respect 
for, and the observance of, human rights and fundamnetal freedoms for 
all without distinction as to race.”  The Senate of the United States 
has also ratified the Act of Chapultepec in which this nation, along with 
Latin-American nations, undertook “ to prevent . . .  all that may per­
fect discrimination among individuals because of racial or religious 
reasons.”

It is clear, therefore, that the public policy of the United States 
is dedicated to the eradication of discrimination against persons or 
classes of persons because of race, religion or color. From the facts

2 320 U. S. 81.
3 Article 6, Clause 2, United States Constitution.
Also, Kennett v. Chambers, 14 How. 38.
Also, In the Matter of Drummond Wren, (Ontario Reports, 1945, p. 778).



30

which have been set out in the first part of this brief, it has been clearly 
shown that Senator-elect Birbo’s conduct during his recent Primary 
campaign was directly opposed to that public policy, and that he advo­
cated discriminatory acts against Negro citizens to prevent their par­
ticipation in the electoral process in the State of Mississippi.

The A cts and Conduct “ H arm ful to the Dignity 
and Honor o f the Senate”

Our nation, as a subscriber to the United Nations Charter and to 
the Act of Chapultepec, is under an obligation to do all within its power 
to fulfill its obligations thereunder. The responsibility for fulfilling 
these obligations rests primarily upon the Senate of the United States, 
and it is under a duty at all times to take uncompromising steps to 
implement obligations to fellow-signatories of these treaties. If the 
Senate should fail to live up to these obligations, its honor and dignity 
will be forever besmirched. It is immediately obvious, therefore, that 
if the United States is to fulfill its solemn obligations, it must have 
sitting in its highest legislative body men who are free of narrow, 
biased, racist theories condemned by these documents.

Senator-elect Bilbo exhibited, during his primary campaign of 
1946, a blatant and crass disregard for basic rights and fundamental 
freedoms of American citizens because of race and color. The honor 
and dignity of the Senate requires, therefore, that this body, recog­
nizing the harm which would come to it by having Senator-elect Bilbo 
again seated in its ranks, must, to preserve this honor, exclude him 
from a seat in the Senate of the 80th Congress.

The seating of a person such as Senator-elect Bilbo, who advocates 
discrimination and classification because of race and color, will make 
the other signatories of the Act of Chapultepec and the United Nations 
Charter question the good faith of the Senate in carrying out the obli­
gations which it has assumed by its ratification of these documents.



31

The A cts and Conduct “ Dangerous to the 
Perpetuity o f Free Government”

We have just recently concluded a life and death struggle with 
nations dedicated to the principle of racial superiority. We found 
this totalitarian concept so dangerous to our own democractic existence 
as to warrant the sacrifice of the lives of thousands of American citi­
zens to conclude and eradicate these evil forces.

The Senate, as the senior of our two national legislative bodies 
whose members must swear to uphold the Constitution of the United 
States and to support a government whose essential character is repub­
lican, must not and cannot tolerate the presence in its body of an in­
dividual who knowingly and wilfully advocates the evasion and thereby 
ultimate destruction of the United States Constitution.

Senator Bilbo has shown by his campaign statements that he does 
not believe “ that the right of citizens of the United States to vote . . . ”  
should “  . . . not be denied or abridged by the United States or by any 
state on account of race, color or previous condition of servitude.”  
U. S. Constitution, Am. 15, Sec. 1.

The American republic form of government is based upon and 
depends for its continued existence upon the free and untrammeled 
exercise of the elective franchise by all of its citizens. If men who sit 
in the Senate of the United States do not subscribe to this basic prin­
ciple the ultimate result will be the same as though this government 
were overthrown by military force. Every republican form of democ­
racy is founded upon the right of the free exercise of citizenship in 
the casting of the ballot. If this is destroyed or taken away, whatever 
be the means, the government fails; because the very fundamental prin­
ciples of its establishment is violated and taken away.

“ In a republican government, like ours, where political 
power is reposed in representatives of the entire body of the 
people, chosen at short intervals by popular elections, the tempta­
tions to control these elections by violence and by corruption is 
a constant source of danger.



32

“ If the Government of the United States has within its con­
stitutional domain no authority to provide against these evils, 
if the very sources of power may be poisoned by corruption or 
controlled by violence and outrage, without legal restraint, then, 
indeed, is the country in danger and its best powers, its highest 
purposes, the hopes which it inspires and the love which en­
shrines it, are at the mercy of the combinations of those who 
respect no right but brute force, on the one hand, and unprin­
cipled corruptionists on the other.” 4

The acts and speeches of Senator Bilbo per se without reference to 
their traceable effect on white Mississippi voters and on Negro voters, 
were so contrary to sound public policy, harmful to the dignity and 
honor of the Senate, and dangerous to the perpetuity of fre'e govern­
ment, as to taint his credentials with fraud and corruption and to dis­
qualify him for a seat in the Senate.

Conclusion

The facts in the record constitute the strongest indictment of 
Senator Bilbo. This record is made and will be read all over the world. 
Senator Bilbo is on trial before this Committee; but the Senate itself 
is on trial before the bar of public opinion. And failure to meet the 
issues here presented head on and fairly may yet result in drastic and 
most serious consequences to our entire nation in world affairs.

Respectfully submitted,
C harles H . H ouston 
T httrgood M arshall  

Counsel for the National Association for 
the Advancement of Colored People.

R obert L. Carter 
M arion  W. P erry 
F ra n k l in  II. W illiam s

of Counsel.

4 Matter of Jasper Yarbrough, 110 U. S. 651 (1883).



33

APPEN D IX A

Analysis o f Transcript o f Testimony

I. No. of W itnesses at  H earings— 102.
Complainants— 69.
Defense— 33.

II. Geographical D istribution  :

Jackson, Hinds County
#  1 T. B. Wilson
#  2 Percy Green
qfjfc 10 Plerman L. Caston 
# 1 5  Lee Ernest Butler 
# 1 8  Quintus Jones 
# 1 9  Frank J. Spates 
# 2 0  Potts Johnson 
# 2 1  Walter Johnson 
# 2 2  Edison D. Johnson 
# 2 3  Henry C. W olfe 
# 2 4  Eddie P. Anderson 
# 2 5  Elesha Reed, Jr.
# 2 6  Louis Miles 
# 3 0  Benjamin H. Taylor 
# 3 1  Willis L. Moore 

Meridian, Lauderdale County
#  7 Samuel J. Loodody
#  8 Nathan Hodges, Jr.
#  9 James W . Hunter, Sr. 
# 2 7  James Harns
# 2 8  Leon Wilson 
# 2 9  Edward Knott, Jr.

Tougaloo, Hinds County 
# 7 4  Arthur E. Franklin 

McComb, Pike County 
# 3 2  Napoleon B. Lewis 
# 3 4  Joe Parham 
# 3 5  Nathaniel H. Lewis 
# 3 6  Samuel B. O ’Neal 
# 4 2  Meredith Lewis 
# 4 3  Lawrence Wilson 
# 4 5  S. J. Dickey 

Bay St. Louis, Hancock County 
# 4 1  John James 

Holly Springs, Marshall County 
# 8 0  Samuel K. Phillips 
# 8 4  Joe Bell •

Crystal Springs, Copiah County 
# 5 3  L. J. Sibbie 

Edwards, Hinds County
# 5 5  Charles Clent Mosley, Jr. 

Tylertown, Walthall County 
# 5 6  A. G. Price 
# 6 9  Benton Simmons 
# 7 0  Timothy Dillon 
# 7 1  J. B. Raiford 

Grenada, Grenada County 
# 8 5  Walter Hightower 
# 8 6  R. S. Bostick 

Puckett, Rankin County
#  3 Stoy Fletcher 

Vicksburg, Warren County
#  5 Rev. Stanley R. Brav 

Greenville, Washington County
# 1 1  Willie Douglass Brown 
# 1 2  Leon Dowdy 
# 1 3  Joseph H. Bevins 
# 1 4  Henry A. Myles 

Louisville, Winston County
#  6 John L. Hathorn 
# 5 2  Clevaris Gladway 
# 5 9  C. N. Eiland

Byhalia, Marshall County 
# 8 3  Willis D. Hamm 

Poplarville, Pearl River County 
# 1 7  J. Monroe Spiers 

Canton, Madison County 
# 1 6  William Albert Bender 

Sibley, Adams County 
# 8 1  Joseph Rounds 

Gulfport, Harrison County 
# 3 7  Richard E. Daniel 
# 5 0  Varnado R. Collier 
# 5 7  Dr. M. S. Love



34

Pass Christian, Harrison County 
# 3 8  Father George T. J. Strype 
# 3 9  Thomas Guyot, Jr.
# 4 0  Eugene H. Roberts 

Natchez, Adams County
# 75  Mrs. Camille Z. Thomas 
# 8 2  Samuel Davis 

Marks, Quitman County 
# 5 4  Eshmiel Charles Kelly 

(drove Bender)

Greenwood, Leflore County 
# 6 0  J. D. Collins 
# 6 1  A. C. Montgomery 
# 6 2  Clark Wilson 
# 6 3  Louis Redd 
# 6 4  Liesta A. Prichard 

Magnolia, Pike County 
# 6 7  Junius R. Moore

Port Gibson, Claiborne County 
# 8 7  Kattie Campbell

N um ber  of Co m pla in in g  W itnesses from E ach  T ow n

15 Jackson (Hinds) Central 
1 Puckett (Rankin) Central 
1 Vicksburg (W arren) S. W .
4 Greenville (Washington) West 

Central
3 Louisville (W inston) E. Central
6 Meridian (Lauderdale) E. Central 
1 Byhalia (Marshall) Extreme

North (Middle)
1 Poplarville (Pearl River) South 

( Central)
1 Canton (Madison) Central 
1 Tougaloo (H inds) Central 
1 Sibley (Adams) S. W .
7 McComb (Pike) S. W .
3 Gulfport (Harrison) S. E.
3 Pass Christian (Harrison) S. E.

1 Bay St. Louis (Hancock) S. W. 
( Central)

2 Holly Springs (Marshall)
Extreme N.

2 Natchez (Adams) S. W .
1 Crystal Springs (Copiah) S. W . 

Central
1 Marks (Quitman) N. W .
1 Edwards (Hinds) Central 
5 Greenwood (LeFlore) N. W.
4 Tylertown (Walthall) Ex.

South-West
1 Magnolia (Pike) Ex. South-

Central
2 Grenada (Grenada) North

Central
1 Port Gibson (Claiborne) West 

(South W est)

Defense W itnesses:
#  4 Dr. E. J. Matvanga, Jackson, Chiropodist.
#  33 Ezell Singleton, Brandon, Veterans Registerman.
#  44 Dave P. Gayden, Brandon, Circuit Clerk.
#  46 C. E. Cocke, Greenville, Circuit Clerk.
#  47 Emmett E. Reynolds, Louisville, Circuit Clerk.
#  48 Wendell R. Holmes, Magnolia, Circuit Clerk.
#  49 William Elton Moore, McComb, Sheriff.
#  51 Clifford R. Feld, Natchez, Circuit Clerk.
#  58 Robert L. Williams, Gulfport, City Policeman.
#  64 Shelby S. Steele, Greenwood, Insurance Broker.
#  65 A. D. Saffold, Greenwood, City Mayor.
#  68 E. K. Sauls, McComb (had altercation with Parham) Private Citizen.
#  72 E. R. Sanders, McComb, Chief of Police.
#  73 A. B. Williams, McComb, City Mayor.

Affidavit of John R. Jankin, Natchez, Election Manager.



35

#  76 Eaton Garriga, Pass Christian, Night Marshal.
#  77 Lester Garriga, Pass Christian, Harrison County, Patrolman, Com­

missioner of Election.
#  78 A. T. McCollister, Pass Christian, Election Commissioner.
#  79 Charles C. Farragut, Past Christian, Election Commissioner.
#  88 J. V. Simmons, Gulfport, City Judge who convicted Daniel.
#  89 Theodore Bilbo, Poplarville.
#  90 Bedwell Adams, Pass Christian, Lieut. Gov. under Bilbo.
#  91 Ben Cameron, former U. S. Atty., Meridian.
#  92 J. F. Barbour, Yazoo City, former Judge.
# 9 3  H. H. Creekmore, Jackson
#  94 George Butler, Jackson, former Pres. Miss. State Bar Asso., member

State Demo. Exec. Comm.
#  95 J. Morgan Stevens, Jackson, campaigned with Bilbo in 1911.
#  96 Charles B. Cameron.
#  97 Jesse Shanks.
#  98 Hugh B. Gillespie.
#  99 Mrs. Mary Donaldson.
# 1 0 0  George L. Sheldon.
#101  Jesse Byrd.
# 1 0 2  A. B. Friend.

APPEN D IX B 

Caldwell o f  Kansas

In the case of Senator Caldwell of Kansas, 42nd Congress, 3rd 
Session, in February and March, 1875, a Senatorial committee reported 
that it found Caldwell guilty of personal bribery and could not, or at 
least did not, find whether enough votes were bribed to change the 
result. Two resolutions were introduced which clearly raised the 
issue, but before it could be decided by the Senate, Senator Caldwell 
resigned.

Clark o f Montana

In the 56th Congress, 1st Session, Senator Clark of Montana was 
admitted to his seat on March 4, 1899; after an investigation the com­
mittee divided in its report, but agreed unanimously April 23, 1900 on 
a resolution reading as follows:

‘ ‘ Resolved, That William A. Clark was not duly and legally 
elected to a seat in the Senate of the United States by the legis­
lature of the State of Montana.”



36

The committee found that enough votes were corrupted to change 
the result and that “ It is also a reasonable conclusion upon the whole 
case that Senator Clark is fairly to be charged with knowledge of the 
acts done in his behalf by his committee and his agents . . .  .”

The resolution is in the form of an exclusion, but since the com­
mittee found that enough votes were corrupted to change the result, 
we cannot know that they considered personal responsibility for an act 
or acts of corruption, not sufficient to change the result, the sole grounds 
for their exclusion resolution. In any event, Senator Clark resigned 
on May 11, 1900 while the resolution was being debated.

Case o f Senator Lorimer, Illinois

In the case of William Lorimer of Illinois, 61st and 62nd Con­
gresses, Lorimer took his oath without objection on June 18, 1909. On 
May 28, 1910 on his own motion a resolution was introduced to investi­
gate his right to his seat as against charges of corruption raised by 
The Chicago Tribune. This case in the Senate was heatedly debated 
after the majority of the committee reported on December 21, 1910 that 
he was entitled to his seat.

Senator Beveridge filed minority views with the following recom­
mended resolution:

“ Resolved, That William Lorimer was not duly and legally 
elected to a seat in the Senate of the United States by the legis­
lature of the State of Illinois.”  (Cannon’s Precedents, Yol. 71,
p. 182.)

Lorimer was allowed to retain his seat, the minority resolution being 
defeated.

Lorimer was later unseated in the 62nd Congress on July 13, 1912 
by a vote of 55 yeas to 28 nays on a resolution reading as follows:

“ Resolved, That corrupt methods and practices were em­
ployed in the election of William Lorimer to the Senate of the 
United States from the State of Illinois, and that his election 
was therefore invalid.”  (Cannon’s Precedents, Yol. VI, p. 196.)



37

The broad form of this resolution indicates that it is a forerunner 
of the resolution later used in the Smith and Vare cases. It will be 
noted that it does not say that the “ corrupt methods”  either affected 
a decisive number of votes or that Lorimer personally practiced, en­
couraged or condoned them, the technical requirements of the law.

Case o f  Senator N ewberry

The first case, involving this issue, after the Seventeenth Amend­
ment was the celebrated Neivbemj case. Newberry defeated Ford in 
the Republican primary of 1918 and later defeated him, as the Demo­
cratic candidate, in the general election of that year. He took the oath 
and was seated May 19, 1919. He admittedly spent $195,000 in his 
campaign. He and others were tried and convicted in 1920 in the United 
States District Court of Michigan for violation of the Federal Corrupt 
Practices Act. While the case was pending in the Senate, the Supreme 
Court, on May 2, 1921, reversed the conviction by a five to four decision 
on the ground that the Congress could not legislate with reference to 
primary elections.

Notwithstanding this, the Senate investigated the primary expendi­
tures as well as recounted the general election ballots. The majority 
and minority reports were filed November 16, 1921. The whole Senate 
debate turned on the effect of the expenditures in the primary. The 
opponents of Senator Newberry clearly evidenced their belief that as 
far as their right to “ judge of the election and returns”  of their own 
members under Article I, Section 5, Clause 1 of the Constitution, they 
were not bound by the decision of the Supreme Court denying the right 
of the Congress to legislate on the subject of primary elections.

The resolution of the majority holding Ford not elected, joined in 
by the minority, and Newberry duly elected, opposed by the minority, 
was debated in the Senate November 17 to 23, 1921, December 7 to 21, 
1921 and January 4 to 12, 1922. On January 12, 1922, Senator Spencer



38

of Missouri, who filed tlie majority report, accepted, the following 
amendment to his pending resolution, S. Bes. 172:

(3) That whether the amount expended in this primary was 
$195,000, as was fully reported or openly acknowledged, or 
whether there were some few thousand dollars in excess, the 
amount expended was in either case too large, much larger than 
ought to have been expended.

The expenditure of such excessive sums in behalf of a candi­
date either with or without his knowledge and consent being 
contrary to sound public policy, harmful to the honor and dignity 
of the Senate and dangerous to the perpetuity of free govern­
ment, such excessive expenditures are hereby severely condemned 
and discouraged. (Senate Election Cases, 1913-1940 (Hays), p. 
192.)

As amended, the resolution passed 46 to 41, January 12, 1922.

This amendment is revealing because it furnished the verbatim 
example of the statement of the law on the subject contained in the 
Smith and Vare cases, first set out in this brief.

The foregoing analysis of the bribery and corruption cases in the 
Senate indicates a definite trend in the Senate to create a legal inter­
pretation of its constitutional rights and duties, under Article I, Section 
5, clauses 1 and 2, as cases in which practiced or known bribery or 
corruption by a Senator shall be treated as a wrong in rem, involving 
the validity of the election, which the Senate reaches by majority vote 
under clause 1; rather than as expulsion for an act involving bad 
character or moral turpitude, which the Senate would have to reach by 
a two-thirds vote under clause 2.



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