Maxwell v. Davidson County, TN Board of Education Reply Brief and Appendix of Defendants-Appellees

    .

.





I n  the

(Eouri of tlto liXnxUh §>tatpfl
October T erm, 1947 Q

1

No. 668

Clay E ice, et al.,
Petitioners,

v.
George E lmore, on B ehalf of H imself and Others 

S imilarly S ituated,
Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO 
PETITION FOR CERTIORARI

T hurgood M arshall, 
W illiam  R. M ing, Jr., 
Attorneys for Respondent.

H arold R. B oulware,
E dward R. D udley,
M arian W . P erry,

Of Counsel.





INDEX
PAGE

Statement of the Case-----------------------------------------------------------------  1

Reasons for Denying the Petition------------------------------------------------2

Conclusion----------------------------------------------------------------------------------------9

TABLE OF CASES

Carolina National Bank of Columbia v. State, 38 S. E. 629------------- 8

Chapman v. King, 154 F. (2d) 460------------------------------------------------------8

Ex parte Siebold, 100 U. S. 371---------------------------------------------------------- 4

Ex parte Yarbrough, 110 U. S. 651-------------------------------------------------  2

Grovey v. Townsend, 295 U. S. 45---------------------------------------------------  7

Guinn v. United States, 238 U. S. 347----------------------------------------------  7

In re Coy, 127 U. S. 731___________________________________________  4

Kerr v. Enoch Pratt Free Library, 149 F. (2d) 212 certiorari
denied, 326 U. S. 721__________________________________________  6

Lane v. Wilson, 307 U. S. 268______________________________________ 7, 9

Logan v. United States, 313 U. S. 299______________________________  4

Marsh v. Alabama, 326 U. S. 501____________    6

Smith v. Allwright, 321 U. S. 649___________________________________ 7

Steele v. Louisville and Nashville R. R., 323 U. S. 192_____________  6

Swafford v. Templeton, 185 U. S. 487______________________________  4

Tunstall v. Brotherhood of Locomotive Firemen, 323 U. S. 210_____  6

United States v. Classic, 313 U. S. 299____________________________  2

United States v. Mosley, 238 U. S. 383_____________________________  4

Wiley v. Sinkler, 179 U. S. 58______________________________________  4





I n  th e

&npv?m (ftourt of tfyp Ti&mtib
October T erm, 1947

No. 668

Clay R ice, et al.,
Petitioners,

v.
George E lmore, on B ehalf of H imself and Others 

S imilarly S ituated,
Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO 
PETITION FOR CERTIORARI

STATEMENT OF THE CASE

Petitioners in their petition and brief have correctly cited 
the case below and have properly indicated the basis for 
jurisdiction. In their statement of facts, however, they 
have omitted certain matters.

As the court below found:

“ For half a century or more the Democratic Party 
has absolutely controlled the choice of elective officers 
in the State of South Carolina. The real elections 
within that state have been contests within the Demo­
cratic Party, the general elections serving only to ratify 
and give legal validity to the party choice. So well has 
this been recognized that only a comparatively few 
persons participate in the general elections. In the 
election of 1946, for instance, 290,223 votes were cast 
for Governor in the Democratic primary, only 23,326 
in the general election.”  (R. 115)



2

Despite the fact that in 1944 the General Assembly of 
South Carolina repealed all existing statutes which con­
tained any reference directly or indirectly to primary elec­
tions within the state, the District Judge expressly found:

“ In 1944 substantially the same process was gone 
through, although at that time and before the State 
Convention assembled, the statutes had been repealed 
by action of the General Assembly, heretofore set out. 
The State Convention that year adopted a complete new 
set of rules and regulations, these however embodying 
practically all of the provisions of the repealed statutes. 
Some minor changes were made but these amounted to 
very little more than the usual change of procedure in 
detail from year to year. * * * (R. 94)

“ In 1946 substantially the same procedure was used 
in the organization of the Democratic Party and another 
set of rules adopted which were substantially the same 
as the 1944 rules, excepting that the voting age was low­
ered to 18 and party officials were allowed the option 
of using voting machines, and the rules relative to ab­
sentee voting were simplified * * (R. 95)

REASONS FOR DENYING THE PETITION

When the courts below upheld the right of respondent, a 
qualified elector, to participate in the choice of congressmen 
in South Carolina, they properly applied the relevant provi­
sions of the Constitution and laws of the United States as 
construed by this Court. They readily and rightly recog­
nized that the question was one which has already been “ set­
tled by this court * * Therefore, we submit, the petition 
for writ of certiorari should be denied.

This Court pointed out in United States v. Classic, 313 
U. S. 299, 314, that ever since Ex parte Yarbrough, 110 U. S. 
651, it has uniformly held that under Article I, Sec. 2 of the 
Constitution the right to choose congressmen “ is a right 
established and guaranteed by the Constitution and hence 
is one secured by it to those citizens and inhabitants of the 
state entitled to exercise the right.”



3

This Court made it equally plain in the Classic case that 
the constitutional protection of the right to vote extended 
to certain primary elections when it said:

“ Where the state law has made the primary an in­
tegral part of the procedure of choice, or where in fact 
the primary effectively 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, Sec. 
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 machinery, 
whether the voter exercises his right in a party primary 
which invariably, sometimes or never determines the 
ultimate choice of the representative. Here, even apart 
from the circumstance that the Louisiana primary is 
made by law an integral part of the procedure of choice, 
the right to choose a representative is in fact controlled 
by the primary because, as is alleged in the indictment, 
the choice of candidates at the Democratic primary de­
termines the choice of the elected representative. More­
over, we cannot close our eyes to the fact, already men­
tioned, that the practical influence of the choice of 
candidates at the primary may be so great as to affect 
profoundly the choice at the general election, even 
though there is no effective legal prohibition upon the 
rejection at the election of the choice made at the pri­
mary, and may thus operate to deprive the voter of his 
constitutional right of choice.”  (313 U. S. 299, 318-319.) 
Italics supplied.

The record in the instant case shows, without dispute, 
that the Democratic primary in South Carolina “ effectively 
controls the choice”  of congressmen and has done so for 
nearly fifty years (R. 103-104). Equally clearly the record 
shows that petitioners prevented respondent, and others 
similarly situated, solely on account of his race and color, 
from exercising his constitutional right to participate in the 
choice of congressmen in the 1946 Democratic primary.

This Court held in the Classic case that Secs. 19 and 20 of 
the Cirminal Code (Title 18 Secs. 51 and 52) provided crim­



4

inal sanctions for interference with the right to vote in the 
Louisiana primary. We submit that the courts below rightly 
held that Title 8, Secs. 31 and 43 and the provisions of Title 
28, Secs. 41 (1), (11), (14), and 400 similarly afford re­
spondent a civil remedy in the federal courts for deprivation 
of his right to vote in the South Carolina primary.

In support of their plea for certiorari petitioners claim, 
primarily, that there was no “ state action”  here. Even 
accepting that assumption arguendo and only for the mo­
ment, this neither justifies petitioners’ interference with 
respondent’s right to vote nor does it require this Court to 
review the decision below. In the Classic case, supra, this 
Court was explicit on the point. There it was said:

Obviously included within the right to choose,_ se­
cured by the Constitution, is the right of qualified 
voters within a state to cast their ballots and have them 
counted at Congressional elections. This Court has con­
sistently held that this is a right secured by the Consti­
tution. Ex parte Yarbrough, supra; Wiley v. Sinkler, 
supra; Swafford v. Templeton, supra; United States v. 
Moseley, supra; see Ex parte Siebold, supra; In re Coy, 
127 U. S. 731; Logan v. United States, 144 U. S. 263. 
And since the constitutional command is without re­
striction or limitation, the right, unlike those guaran­
teed by the Fourteenth and Fifteenth Amendments, is 
secured against the action of individuals as well as of 
states. Ex parte Yarbrough, supra; Logan v. United 
States, supra. (313 U. S. 299, 315.)

Thus it appears to be well settled by the decisions of this 
Court that the paramount right of a free people to choose 
those persons to whom the powers of government are to be 
entrusted is protected by the Constitution from interference 
by individuals as well as by states. Petitioners take nothing 
by their claim that their actions w’ere done pursuant to the 
“ rules”  of a “ voluntary political association.”  They de­
liberately and admittedly so acted as to prevent qualified 
electors from exercising their constitutional right to vote. 
The courts below, then, followed the decisions of this Court



5

in holding that the petitioners thns violated the Constitu­
tion and laws of the United States.

Petitioners confuse the rights protected by Article I, Sec. 
2 of the Constitution with those protected by the Fourteenth 
and Fifteenth Amendments. That confusion is understand­
able. The whole course of official conduct in South Carolina 
beginning with then Governor Johnston’s speech when he 
called a special session of the Legislature in 1944 * was to 
evade if possible, or to violate if necessary, the express 
limitations of the Fourteenth and Fifteenth Amendments. 
It was admittedly the intention of the governor and the leg­
islature to deprive all Negroes of their right to vote in the 
Democratic primary. Small wonder, then, that petitioners, 
fully aware of this scheme, are preoccupied with the Four­
teenth and Fifteenth Amendments. We submit, however, 
that it is at their peril that they ignore the protection af­
forded all qualified electors by Article I, Sec. 2 of the Con­
stitution.

We agree with petitioners that since the decision of the 
Civil Rights Cases, 109 U. S. 3, this Court has held that the 
Fourteenth and Fifteenth Amendments apply only when 
there is “ state action.”  And, the courts below, relying on 
the decisions of this Court, found that it was the State of 
South Carolina, acting through petitioners, which denied 
respondent the right to vote. Thus respondent was entitled 
to, and has been afforded, the protection of the Civil War 
Amendments as well as the protection of Article I of the 
Constitution.

It cannot be denied that it is a function of the state to 
conduct elections for state and federal officers and the state 
of South Carolina, of course, performs that function. As 
the courts below found, in South Carolina the selection of 
officers of government is a two-step process with the primary 
the first step and the general election the second. Each

* See Exhibit C to original Complaint, which is admitted to be accurate 
and correct (R. 37).



6

step, however, is an essential part in the process of selecting 
the officers of government. This is so in South Carolina 
whether the first step, the primary, is conducted pursuant 
to statutes or to the rules of a political party, and the courts 
below properly so held.

As the court below pointed out, when the officers of the 
Democratic Party

“ participate in what is a part of the state’s election 
machinery they are electing officers of the state de facto 
if not de jure, and as such must observe the limitations 
of the Constitution. Having undertaken to perform an 
important function relating to the exercise of sov­
ereignty of the people, they may not violate the funda­
mental principles laid down by the Constitution for its 
exercises.”

That conclusion was required by the decision of this Court 
in the Classic case since “ in fact the primary effectively con­
trols the choice. ’ ’

In other cases, this Court has recognized that it is not the 
symbols and trappings of officialdom which determine 
whether the Fourteenth and Fifteenth Amendments apply 
but rather whether the facts of the particular case disclose 
the exercise of the state’s authority. For example, in Marsh 
v. Alabama, 326 U. S. 501, this Court held that the Four­
teenth Amendment operated on the private owner of a 
“ company town”  to protect the right of freedom of speech. 
Labor unions, although private voluntary associations, have 
been held by this Court subject to the limitations of the due 
process clause of the Constitution when exercising power 
conferred by the federal government. Steele v. Louisville 
and Nashville RR, 323 U. S. 192, Tunstall v. Rrotherhood of 
Locomotive Firemen, 323 U. S. 210. Similarly the Fourth 
Circuit in Kerr v. Enoch Pratt Free Library, 149 F. (2d) 
212,* held that where a corporation had invoked the power

* Certiorari denied, 326 U. S. 721.



7

of the state for its creation and relied upon city funds for 
its operation it was in fact a state instrumentality.

As this Court declared in Smith v. Allwright, 321 U. S. 
649, 664-665:

“ When primaries become a part of the machinery for 
choosing officials, state and national, as they have here, 
the same tests to determine the character of discrimina­
tion or abridgement should be applied to the primary 
as are applied to the general election. If the State re­
quires a certain electoral procedure, prescribes a gen­
eral election ballot made up of party nominees so chosen 
and limits the choice of the electorate in general elec­
tions for state offices, practically speaking, to those 
whose names appear on such a ballot, it endorses, adopts 
and enforces the discrimination against Negroes, prac­
ticed by a party entrusted by Texas laAV with the de­
termination of the qualifications of participants in the 
primary. This is state action within the meaning of the 
Fifteenth Amendment. Guinn v. United States, 238 U. 
S. 347, 362.

“ The United States is a constitutional democracy. 
Its organic law grants to all citizens a right to partici­
pate in the choice of elected officials without restriction 
by any State because of race. This grant to the people 
of the opportunity for choice is not to be nullified by a 
State through casting its electoral process in a form 
which permits a private organization to practice racial 
discrimination in the election. Constitutional rights 
would be of little value if they could be thus indirectly 
denied. Lane v. Wilson, 307 U. S. 268, 275.

“ The privilege of membership in a party may be, as 
this Court said in Grovey v. Townsend, 295 U. S. 45, 55, 
no concern of a State. But when, as here, that privilege 
is also the essential qualification for voting in a primary 
to select nominees for a general election, the State 
makes the action of the party the action of the State. ’ ’

Prior to the action of the South Carolina Legislature in 
repealing more than 150 statutes governing the conduct of 
the primary in that state there was no doubt that under the



8

decision in Smith v. Allwright, supra, respondent had a right 
to participate in the Democratic primary. The court below 
expressly found that in fact the relationship between the 
Democratic primary and the process of the selection of the 
officers of government was unchanged by the repeal of the 
statutes (R. 103). Under these circumstances, we submit, 
petitioners continued to exercise the power of the state in 
carrying on the election of representatives. In so doing 
they were bound by the limitations of the Fourteenth and 
Fifteenth Amendments and in accordance with the decisions 
of this Court the courts below properly so held.

Petitioners claim that the decision of the court below is 
inconsistent with that of the Fifth Circuit in Chapman v. 
King, 154 F. (2d) 460. In that case, relying on Smith v. 
Allwright, supra, the court upheld the right of a Negro voter 
to participate in the Georgia Democratic primary. At most 
it can be said that there is dicta in the opinion in Chapman 
v. King, 154 F. (2d) 460, 463, which is inconsistent with the 
decision of the court below in the instant case. When a 
decision is consistent with the decisions of this Court a dif­
ference in dicta in the opinion of another Circuit Court of 
Appeals is not, we submit, ground for granting a writ of 
certiorari. Particularly is that true when, as here, the de­
cisions of the two courts are consistent with each other and 
the rulings of this Court.

Similarly, the petitioners seek to bolster their plea by 
claiming that the court below has decided an important 
question of “ local law”  in a way probably in conflict with 
applicable local decisions. The court below construed and 
applied the relevant provisions of the Federal Constitution 
and statutes. By definition the limitations of the Constitu­
tion of the United States are not “ local”  in character. 
Therefore Carolina National Bank of Columbia v. State, 38 
S. E. 629, has no application. It is for the federal courts, 
not the Supreme Court of South Carolina, to decide whether 
there has been “ state action”  within the meaning of the 
Fourteenth Amendment. We submit that it has already



9

been demonstrated that the decision of the court below was 
consistent with the decisions of this Court in that regard.

Petitioners also contend that the decision of the Court 
below interferes with their right peaceably to assemble and 
thus contravenes the First Amendment to the Constitution. 
This contention is as spurious as it is novel. The actual 
“ right”  which petitioners assert is the absolute authority 
to deprive Negroes in South Carolina of the effective exer­
cise of their ‘ ‘ right to choose members of the House of Rep­
resentatives. ”  The record in this case shows plainly that 
in conducting the primary election in the State of South 
Carolina the Democratic Party is not a group of individual 
citizens assembling peaceably to secure redress for griev­
ances. It is an organization carrying on a part of the func­
tion of the state government to select representatives and 
senators to sit in the Congress of the United States and it 
is to that activity to which the court below applied the Con­
stitutional limitations. In any event, petitioners’ right to 
assemble cannot be so exercised so to deprive respondent of 
his right to vote and this Court so held in Smith v. Allwright, 
supra.

CONCLUSION

In Lane v. Wilson, 307 U. S. 268, 275, this Court pointedly 
declared that the Fifteenth Amendment nullifies “ sophisti­
cated as well as simple-minded modes of discrimination.”  
Characterization of the South Carolina device to achieve 
the disfranchisement of Negroes seems hardly necessary. 
The record in this case shows plainly and without contradic­
tion that the processes of that state have been subverted to 
achieve a result forbidden by the Constitution of the United 
States. Both the District Court and the Circuit Court of 
Appeals recognized this and so held. That decision is con­
sistent with the applicable decisions of this Court. We sub­
mit, therefore, that no grounds exist here to warrant issu­



10

ance of a writ of certiorari by this Court and we urge denial 
of the petition.

Respectfully submitted,

T hurgood M arshall, 
W illiam R. M ing, Jr., 
Attorneys for Respondent.

H arold R. B oulware,
E dward R. D udley,
M arian W . P erry,

Of Counsel.







In th e

g>upmn? (Emtrt of X \ \ t lUnxtrti £>tatpo
October T erm, 1947

No. 668

Clay R ice, et al., 
Petitioners,

v.
George E lmore, on B ehalf of H imself and Others 

S imilarly S ituated,
Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO 
PETITION FOR CERTIORARI

T hurgood M arshall, 
W illiam R. M ing, Jr., 
Attorneys for Respondent.

H arold R. B oulware,
E dward R. D udley,
Marian W . P erry,

Of Counsel.





INDEX

PAGE
Statement of the Case___________________________________________  1

Reasons for Denying the Petition_________________________________ 2

Conclusion_________________________________________________________ 9

TABLE OF CASES

Carolina National Bank of Columbia v. State, 38 S. E. 629________  8

Chapman v. King, 154 F. (2d) 460_________________________________  8

Ex parte Siebold, 100 U. S. 371______________________________________  4

Ex parte Yarbrough, 110 U. S. 651________________________________  2

Grovey v. Townsend, 295 U. S. 45__________________________________ 7

Guinn v. United States, 238 U. S. 347______________________________  7

In re Coy, 127 U. S. 731___________________________________________  4

Kerr v. Enoch Pratt Free Library, 149 F. (2d) 212 certiorari
denied, 326 U. S. 721__________________________________________  6

Lane v. Wilson, 307 U. S. 268______________________________________ 7, 9

Logan v. United States, 313 U. S. 299______________________________  4

Marsh v. Alabama, 326 U. S. 501___________________________________ 6

Smith v. Allwright, 321 U. S. 649___________________________________ 7

Steele v. Louisville and Nashville R. R., 323 U. S. 192_____________  6

Swafford v. Templeton, 185 U. S. 487______________________________ 4

Tunstall v. Brotherhood of Locomotive Firemen, 323 U. S. 210_____  6

United States v. Classic, 313 U. S. 299____________________________  2

United States v. Mosley, 238 U. S. 383_____________________________  4

Wiley v. Sinkler, 179 U. S. 58_____________________________ ;________  4





In th e

j$uprpmp (Hour! of tfyp HHniteb States
October T ebm , 1947

No. 668

Clay R ice, et al.,
Petitioners,

v.
George E lmore, on B ehalf of H imself and Others 

S imilarly S ituated,
Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO 
PETITION FOR CERTIORARI

STATEMENT OF THE CASE

Petitioners in their petition and brief have correctly cited 
the case below and have properly indicated the basis for 
jurisdiction. In their statement of facts, however, they 
have omitted certain matters.

As the court below found:

“ For half a century or more the Democratic Party 
has absolutely controlled the choice of elective officers 
in the State of South Carolina. The real elections 
within that state have been contests within the Demo­
cratic Party, the general elections serving only to ratify 
and give legal validity to the party choice. So well has 
this been recognized that only a comparatively few 
persons participate in the general elections. In the 
election of 1946, for instance, 290,223 votes were cast 
for Governor in the Democratic primary, only 23,326 
in the general election.”  (R. 115)



2

Despite the fact that in 1944 the General Assembly of 
South Carolina repealed all existing statutes which con­
tained any reference directly or indirectly to primary elec­
tions within the state, the District Judge expressly found:

“ In 1944 substantially the same process was gone 
through, although -at that time and before the State 
Convention assembled, the statutes had been repealed 
by action of the General Assembly, heretofore set out. 
The State Convention that year adopted a complete new 
set of rules and regulations, these however embodying 
practically all of the provisions of the repealed statutes. 
Some minor changes were made but these amounted to 
very little more than the usual change of procedure in 
detail from year to year. * * * (R. 94)

“ In 1946 substantially the same procedure was used 
in the organization of the Democratic Party and another 
set of rules adopted which were substantially the same 
as the 1944 rules, excepting that the voting age was low­
ered to 18 and party officials were allowed the option 
of using voting machines, and the rules relative to ab­
sentee voting were simplified * * (R. 95)

REASONS FOR DENYING THE PETITION

When the courts below upheld the right of respondent, a 
qualified elector, to participate in the choice of congressmen 
in South Carolina, they properly applied the relevant provi­
sions of the Constitution and laws of the United States as 
construed by this Court. They readily and rightly recog­
nized that the question was one which has already been “ set­
tled by this court * * Therefore, we submit, the petition 
for writ of certiorari should be denied.

This Court pointed out in United States v. Classic, 313 
U. S. 299, 314, that ever since Ex parte Yarbrough, 110 U. S. 
651, it has uniformly held that under Article I, Sec. 2 of the 
Constitution the right to choose congressmen “ is a right 
established and guaranteed by the Constitution and hence 
is one secured by it to those citizens and inhabitants of the 
state entitled to exercise the right.”



3

This Court made it equally plain in the Classic case that 
the constitutional protection of the right to vote extended 
to certain primary elections when it said:

“ Where the state law has made the primary an in­
tegral part of the procedure of choice, or where in fact 
the primary effectively 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 1, Sec. 
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 machinery, 
whether the voter exercises his right in a party primary 
which invariably, sometimes or never determines the 
ultimate choice of the representative. Here, even apart 
from the circumstance that the Louisiana primary is 
made by law an integral part of the procedure of choice, 
the right to choose a representative is in fact controlled 
by the primary because, as is alleged in the indictment, 
the choice of candidates at the Democratic primary de­
termines the choice of the elected representative. More­
over, we cannot close our eyes to the fact, already men­
tioned, that the practical influence of the choice of 
candidates at the primary may be so great as to affect 
profoundly the choice at the general election, even 
though there is no effective legal prohibition upon the 
rejection at the election of the choice made at the pri­
mary, and may thus operate to deprive the voter of his 
constitutional right of choice.”  (313 U. S. 299, 318-319.) 
Italics supplied.

The record in the instant case shows, without dispute, 
that the Democratic primary in South Carolina “ effectively 
controls the choice”  of congressmen and has done so for 
nearly fifty years (R. 103-104). Equally clearly the record 
shows that petitioners prevented respondent, and others 
similarly situated, solely on account of his race and color, 
from exercising his constitutional right to participate in the 
choice of congressmen in the 1946 Democratic primary.

This Court held in the Classic case that Secs. 19 and 20 of 
the Cirminal Code (Title 18 Secs. 51 and 52) provided crim-



4

inal sanctions for interference with the right to vote in the 
Louisiana primary. We submit that the courts below rightly 
held that Title 8, Secs. 31 and 43 and the provisions of Title 
28, Secs. 41 (1), (11), (14), and 400 similarly afford re­
spondent a civil remedy in the federal courts for deprivation 
of his right to vote in the South Carolina primary.

In support of their plea for certiorari petitioners claim, 
primarily, that there was no “ state action”  here. Even 
accepting that assumption arguendo and only for the mo­
ment, this neither justifies petitioners’ interference with 
respondent’s right to vote nor does it require this Court to 
review the decision below. In the Classic case, supra, this 
Court was explicit on the point. There it was said:

Obviously included within the right to choose, se­
cured by the Constitution, is the right of qualified 
voters within a state to cast their ballots and have them 
counted at Congressional elections. This Court has con­
sistently held that this is a right secured by the Consti­
tution. Ex parte Yarbrough, supra; Wiley v. Sinkler, 
supra; Swafford v. Templeton, supra; United States v. 
Moseley, supra; see Ex parte Siebold, supra; In re Coy, 
127 U. S. 731; Logan v. United States, 144 U. S. 263. 
And since the constitutional command is without re­
striction or limitation, the right, unlike those guaran­
teed by the Fourteenth and Fifteenth Amendments, is 
secured against the action of individuals as well as of 
states. Ex parte Yarbrough, supra; Logan v. United 
States, supra. (313 U. S. 299, 315.)

Thus it appears to be well settled by the decisions of this 
Court that the paramount right of a free people to choose 
those persons to whom the powers of government are to be 
entrusted is protected by the Constitution from interference 
by individuals as well as by states. ^Petitioners take nothing 
by their claim that their actions were done pursuant to the 
“ rules”  of a “ voluntary political association.”  They de­
liberately and admittedly so acted as to prevent qualified 
electors from exercising their constitutional right to vote. 
The courts below, then, followed the decisions of this Court



5

in holding that the petitioners thus violated the Constitu­
tion and laws of the United States.

Petitioners confuse the rights protected by Article I, Sec. 
2 of the Constitution with those protected by the Fourteenth 
and Fifteenth Amendments. That confusion is understand­
able. The whole course of official conduct in South Carolina 
beginning with then Governor Johnston’s speech when he 
called a special session of the Legislature in 1944 # was to 
evade if possible, or to violate if necessary, the express 
limitations of the Fourteenth and Fifteenth Amendments. 
It was admittedly the intention of the governor and the leg­
islature to deprive all Negroes of their right to vote in the 
Democratic primary. Small wonder, then, that petitioners, 
fully aware of this scheme, are preoccupied with the Four­
teenth and Fifteenth Amendments. We submit, however, 
that it is at their peril that they ignore the protection af­
forded all qualified electors by Article I, Sec. 2 of the Con­
stitution.

We agree with petitioners that since the decision of the 
Civil Rights Cases, 109 U. S. 3, this Court has held that the 
Fourteenth and Fifteenth Amendments apply only when 
there is “ state action.”  And, the courts below, relying on 
the decisions of this Court, found that it was the State of 
South Carolina, acting through petitioners, which denied 
respondent the right to vote. Thus respondent was entitled 
to, and has been afforded, the protection of the Civil War 
Amendments as well as the protection of Article I of the 
Constitution.

It cannot be denied that it is a function of the state to 
conduct elections for state and federal officers and the state 
of South Carolina, of course, performs that function. As 
the courts below found, in South Carolina the selection of 
officers of government is a two-step process with the primary 
the first step and the general election the second. Each *

* See Exhibit C to original Complaint, which is admitted to be accurate 
and correct (R. 37).



step, however, is an essential part in the process of selecting 
the officers of government. This is so in South Carolina 
whether the first step, the primary, is conducted pursuant 
to statutes or to the rules of a political party, and the courts 
below properly so held.

As the court below pointed out, when the officers of the 
Democratic Party

“ participate in what is a part of the state’s election 
machinery they are electing officers of the state de facto 
if not de jure, and as such must observe the limitations 
of the Constitution. Having undertaken to perform an 
important function relating to the exercise of sov­
ereignty of the people, they may not violate the funda­
mental principles laid down by the Constitution for its 
exercises.”

That conclusion was required by the decision of this Court 
in the Classic case since “ in fact the primary effectively con­
trols the choice. ’ ’

In other cases, this Court has recognized that it is not the 
symbols and trappings of officialdom which determine 
whether the Fourteenth and Fifteenth Amendments apply 
but rather whether the facts of the particular case disclose 
the exercise of the state’s authority. For example, in Marsh 
v. Alabama, 326 U. S. 501, this Court held that the Four­
teenth Amendment operated on the private owner of a 
“ company town”  to protect the right of freedom of speech. 
Labor unions, although private voluntary associations, have 
been held by this Court subject to the limitations of the due 
process clause of the Constitution when exercising power 
conferred by the federal government. Steele v. Louisville 
and Nashville RR, 323 U. S. 192, Tunstall v. Brotherhood of 
Locomotive Firemen, 323 U. S. 210. Similarly the-Fourth 
GirouiLin Kerr v. Enoch Pratt Free Library, 149 F. (2d) 
212,* held that where a corporation had invoked the power *

* Certiorari denied, 326 U. S. 721.



7

of the state for its creation and relied upon city funds for
its operation it was in fact a state instrumentality. _____

As this Court declared in Smith v. Allwright, 321 U. S. 
649, 664-665:

“ When primaries become a part of the machinery for 
choosing officials, state and national, as they have here, 
the same tests to determine the character of discrimina­
tion or abridgement should be applied to the primary 
as are applied to the general election. If the State re­
quires a certain electoral procedure, prescribes a gen­
eral election ballot made up of party nominees so chosen 
and limits the choice of the electorate in general elec­
tions for state offices, practically speaking, to those 
whose names appear on such a ballot, it endorses, adopts 
and enforces the discrimination against Negroes, prac­
ticed by a party entrusted by Texas law with the de­
termination of the qualifications of participants in the 
primary. This is state action within the meaning of the 
Fifteenth Amendment. Guinn v. United States, 238 U. 
S. 347, 362.

“ The United States is a constitutional democracy. 
Its organic law grants to all citizens a right to partici­
pate in the choice of elected officials without restriction 
by any State because of race. This grant to the people 
of the opportunity for choice is not to be nullified by a 
State through casting its electoral process in a form 
which permits a private organization to practice racial 
discrimination in the election. Constitutional rights 
would be of little value if they could be thus indirectly 
denied. Lane v. Wilson, 307 U. S. 268, 275.

“ The privilege of membership in a party may be, as 
this Court said in Grovey v. Townsend, 295 U. S. 45, 55, 
no concern of a State. But when, as here, that privilege 
is also the essential qualification for voting in a primary 
to select nominees for a general election, the State 
makes the action of the party the action of the State. ’ '

Prior to the action of the South Carolina Legislature in 
repealing more than 150 statutes governing the conduct of 
the primary in that state there was no doubt that under the



8

decision in Smith v. Allwright, supra, respondent had a right 
to participate in the Democratic primary. The court below 
expressly found that in fact the relationship between the 
Democratic primary and the process of the selection of the 
officers of government was unchanged by the repeal of the 
statutes (R. 103). Under these circumstances, we submit, 
petitioners continued to exercise the power of the state in 
carrying on the election of representatives. In so doing 
they were bound by the limitations of the Fourteenth and 
Fifteenth Amendments and in accordance with the decisions 
of this Court the courts below properly so held.

Petitioners claim that the decision of the court below is 
inconsistent with that of the Fifth Circuit in Chapman v. 
King, 154 F. (2d) 460. In that case, relying on Smith v. 
Allwright, supra, the court upheld the right of a Negro voter 
to participate in the Georgia Democratic primary. At most 
it can be said that there is dicta in the opinion in Chapman 
v. King, 154 F. (2d) 460, 463, which is inconsistent with the 
decision of the court below in the instant case. When a 
decision is consistent with the decisions of this Court a dif­
ference in dicta in the opinion of another Circuit Court of 
Appeals is not, we submit, ground for granting a writ of 
certiorari. Particularly is that true when, as here, the de­
cisions of the two courts are consistent with each other and 
the rulings of this Court.

Similarly, the petitioners seek to bolster their plea by 
claiming that the court below has decided an important 
question of “ local laAv”  in a way probably in conflict with 
applicable local decisions. The court below construed and 
applied the relevant provisions of the Federal Constitution 
and statutes. By definition the limitations of the Constitu­
tion of the United States are not “ local”  in character. 
Therefore Carolina National Bank of Columbia v. State, 38 
S. E. 629, has no application. It is for the federal courts, 
not the Supreme Court of South Carolina, to decide whether 
there has been “ state action”  within the meaning of the 
Fourteenth Amendment. We submit that it has already



been demonstrated that the decision of the court below was 
consistent with the decisions of this Court in that regard.

' j L)£l”'^etitioners also contend that the decision of the Court 
 ̂i . below interferes with their right peaceably to assemble and 

thus contravenes the First Amendment to the Constitution. 
This contention is as spurious as it is novel. The actual 
“ right”  which petitioners assert is the absolute authority 
to deprive Negroes in South Carolina of the effective exer­
cise of their “ right to choose members of the House of Rep­
resentatives.”  The record in this case shows plainly that 
in conducting the primary election in the State of South 
Carolina the Democratic Party is not a group of individual 
citizens assembling peaceably to secure redress for griev­
ances. It is an organization carrying on a part of the func­
tion of the state government to select representatives and 
senators to sit in the Congress of the United States and it 
is to that activity to which the court below applied the Con­
stitutional limitations. In any event, petitioners’ right to 
assemble cannot be so exercised so to deprive respondent of 
his right to vote and this Court so held in Smith v. AUwright, 
supra, o ■ ,

Ofi

CONCLUSION

In Lane v. Wilson, 307 U. S. 268, 275, this Court pointedly 
declared that the Fifteenth Amendment nullifies “ sophisti­
cated as well as simple-minded modes of discrimination.”  
Characterization of the South Carolina device to achieve 
the disfranchisement of Negroes seems hardly necessary. 
The record in this case shows plainly and without contradic­
tion that the processes of that state have been subverted to 
achieve a result forbidden by the Constitution of the United 
States. Both the District Court and the Circuit Court of 
Appeals recognized this and so held. That decision is con­
sistent with the applicable decisions of this Court. We sub­
mit, therefore, that no grounds exist here to warrant issu-



10

ance of a writ of certiorari by this Court and we urge denial 
of the petition.

Respectfully submitted,

T hurgood M arshall, 
W illiam R. M ing, Jr., 
Attorneys for Respondent.

H arold R. B oulware,
E dward R. D udley,
M arian W . P erry,

Of Counsel.







Supreme Court of the United States
OCTOBER TERM, A. D., 1947

No.

CLAY RICE et al., P etitioners,

versus

GEORGE ELMORE, on B ehalf of H imself and Others 
Similarly Situated, R espondent

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES CIRCUIT COURT OF APPEALS 

FOR THE FOURTH CIRCUIT AND BRIEF IN 
SUPPORT OF PETITION

CHRISTIE BENET,
IRVINE F. BELSER, 
CHARLES B. ELLIOTT, 
W ILLIAM P. BASKIN,
P. H. McEACHIN,
J. PERRIN ANDERSON,
W. BRANTLEY HARVEY, 
EDGAR A. BROWN, 
YANCEY A. McLEOD,

Attorneys for Petitioners.

The R. L. Bryan Company, Legal Printers, Columbia, S. C.





INDEX TO PETITION
P age

Statement of Matter Involved ...........................................  1

This Court has Jurisdiction...............................................  6

The Questions Presented ...................................................  6

Reasons Relied Upon for Allowance of W r it .................... 7

Prayer for W r it ......................................................................  11

( i )



TABLE OF CASES
P age

Barney v. City of New York, 193 U. S., 430, 48 L. Ed. 737 21 
Carolina National Bank v. State of South Carolina, 60

S. C., 465, 38 S. E., 629 .........................................  10, 17
Chapman v. King, 154 Fed. (2d), 460, (Cert. Den), 66

Sup Ct., 905, 90 L. Ed., 1025 .................................  9, 17
Civil Rights Cases, 109 U. S., 3, 27 L. Ed., 836 .............. 21
De Jonge v. Oregon, 299 U. S., 353, 364, 81 L. Ed., 278 . . 25 
East St. Louis Railway v. City of East St. Louis, 13 Fed.

(2d), 852 ............' .......................................................... 21
Nixon v. Condon, 286 U. S., 73, 76 L. Ed., 985 .......... 7, 16
Smith v. Allwright, 321 U. S., 647, 88 L. Ed., 987 . . . .  5, 16
Snowden v. Hughes, 321 U. S., 1, 88 L. Ed., 497 .............. 22
United States v. Classic, 313 U. S., 299, 85 L. Ed., 1368 5, 16

OTHER AUTHORITIES
P age

American Jurisprudence, Vol. 11, Constitutional Law,
Sec. 325, p. 1119.............................................................  25

American Jurisprudence, Vol. 11, Constitutional Law,
Sec. 325, p. 1121 .........................................................  25

Supreme Court Rule 38, par. (5) ( b ) .......................... 7, 16
United States Constitution, Amendment I ................ 5, 24
Unites States Constitution, Art. I, sections 2 and 4 1, 9, 22 
United States Constitution, Art I, Sec. 4, clause 1 . . . .  27 
United States Constitution, Amendment 1 0 .................... 28

TABLE OF STATUTES CITED
P age

Judicial Code, Sec. 240(a), 28 U. S. C., 347 ................ 6, 15
Judicial Code, Sec. 24 (14), 28 U. S. C. A., Sec. 41 (14) 3, 20 
United States Code, Title 8, Sec. 43, 8 U. S. C. A., 43 . . . .  20

(ii)



Supreme Court of the United States
OCTOBER TERM, A. D., 1947

No.

CLAY RICE et AE., Petitionees, 

versus

GEORGE ELMORE, on B ehalf of H imself and Others 
Similarly Situated, R espondent

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES CIRCUIT COURT OF APPEALS 

FOR THE FOURTH CIRCUIT AND BRIEF IN 
SUPPORT OF PETITION

To the Honorable the Supreme Court of the United States: 
Your petitioners respectfully show:

SUMMARY STATEMENT OF THE MATTER 
INVOLVED

This is a suit in equity brought in the United States 
District Court for the Eastern District of South Carolina 
by respondent herein against petitioners herein, sixty cit­
izens of Richland County, South Carolina, for damages, for 
injunction and for a declaratory judgment, under the provi­
sions of Amendments Fourteen, Fifteen and Seventeen, 
Sections 2 and 4 of Article I of the United States Constitu­
tion, Sections 31 and 43 of Title 8 of the United States 
Code, subdivision 11 of Section 41 of Title 28 of the United



States Code, subdivision 14 of Section 41 of Title 28 of the 
United States Code, and Section 400 of Title 28 of the 
United States Code (Section 274D of the Judicial Code). 
At the trial the District Court ruled that the matter of dam­
ages would be reserved for future decision and the issues 
confined to the matter of the injunction and declaratory 
judgment. The trial was by the Court and a decree was 
rendered in favor of the respondent against petitioners. 
An appeal from said decree was taken by petitioners to 
the Circuit Court of Appeals for the Fourth Circuit, which 
affirmed the decree of the District Court. The petition for 
rehearing was denied February 6, 1948.

The complaint alleged that the respondent on August 
13, 1946, was an elector qualified to vote in the State of 
South Carolina and on August 13, 1946, presented himself 
to the regular polling place of Ward 9 Precinct in Richland 
County and requested ballots and to be permitted to vote 
in said primary but that the petitioners, who were alleged 
to be county officers of the Democratic party and managers 
at the primary, refused to permit the respondent to vote 
in said primary, solely because of race or color, pursuant 
to the rules and regulations adopted by the Democratic 
Party of South Carolina, and that the General Assembly 
of South Carolina on April 20, 1944, had passed one hun­
dred and fifty (150) Acts repealing all existing laws which 
contained any reference, directly or indirectly, to the pri­
maries in the State and that the only provision in the Con­
stitution of South Carolina referring to primary elections 
had been repealed. (R. 6.)

The petitioners filed motion to strike, and without 
waiving said motion, answered that the District Court was 
without jurisdiction of the subject-matter of the contro­
versy for the reasons that no substantial Federal question 
was involved, because:

2 Rice et al., Petitionees, v. Elmore, Respondent



Rice et al., Petitionees, v. Elmoke, Respondent 3

“  (a) The jurisdictional amount does not in reality 
exist so as to give the Court jurisdiction under Subdi­
vision 1 of Section 41 of Title 28 of the United States 
Judicial Code; and

“ (b) This is not in reality an action to enforce the 
rights of a citizen to vote so as to give the Court juris­
diction under Subdivision 11 of Section 41 of Title 28 
of the United States Judicial Code; and

“ (c) The alleged acts complained of were not taken 
under color of any law, statute, regulation, custom and 
usage of a State so as to bring the matter within the 
jurisdiction of the Court under subdivision 14 of Sec­
tion 41 of Title 28 of the United States Judicial Code; 
and

“ (d) Under Section 400 of Title 28 of the United 
States Judicial Code, this Court does not have juris­
diction, unless jurisdiction exists under and by virtue of 
some other section of the Judicial Code, which jurisdic­
tion is expressly denied; said Section 400 does not en­
large the jurisdiction of this Honorable Court.”

Further, the answer alleged as a second defense that the re­
spondent is not entitled to any relief at law or in equity, 
in that it appears upon the face of the complaint that the 
Democratic Party of South Carolina is a private voluntary 
association of individuals, mutually acceptable to each 
other, and is not created or regulated by virtue of any stat­
ute or law, but solely by the rules of said voluntary asso­
ciation; that the plaintiff has not been deprived of any 
rights, privileges or immunities secured or protected under 
the Constitution or laws of the United States. It further ap­
pears that the complaint fails to state a claim against the 
defendants upon which relief can be granted.

As a third defense, petitioners denied various allega­
tions in the complaint and alleged that the Constitution of 
the United States secures to qualified voters within the 
State of South Carolina the right to cast their ballots only



4 Rice et al., Petitioners, v. Elmore, Respondent

at the general elections for representatives and senators in 
the United States Congress; that under the Constitution 
and laws of South Carolina any qualified elector had the 
right to cast his ballot in the general election hut that under 
the United States Constitution the Respondent did not have 
the right to cast his ballot in the primary conducted by the 
Democratic Party on August 13, 1946, because there was 
no statute or law in the State of South Carolina requiring 
or regulating the holding of such primary and that the pri­
mary held on August 13, 1946, was no part of the general 
election. (R. 13.)

The major portion of the testimony in the District
Court was embodied in a stipulation by counsel. (R .......... )
Among other things it was stipulated that:

“  (a) On June 1,1944, and April 20,1947, the Gen­
eral Assembly of South Carolina repealed all existing 
statutes which contained any reference directly or indi­
rectly to primary elections within the State and that the 
only constitutional provision in the Constitution of 
South Carolina mentioning primary elections was ef­
fectively repealed on February 14, 1945. (R. 36.)

“ (b) Neither the State of South Carolina, nor any 
of its political subdivisions pays any part whatsoever 
of the expenses of the conduct of the Democratic Party 
in South Carolina or of any other political party or of 
any party primary.

“ (c) The Democratic Party of South Carolina, of 
which the petitioners were county officers and members, 
is governed wholly by its own rules and regulations.”
The decision of the District Court is reported in 72 F. 

Supp. 516 (R. 78.)
For Findings of Fact and Conclusions of Law of the 

District Court, dated July 12, 1947, see R. 100.
For Older of the District Court, dated July 12, 1947, 

see R. 105.



For decision of Circuit of Appeals, dated December 
30, 1947, see R. 114. Petition for rehearing was denied. (R. 
135.)

The District Court rendered a declaratory judgment in 
favor of Respondent and permanently restrained and en­
joined the defendants in the cause, the petitioners herein, 
and their respective successors in office from denying quali­
fied Negro electors the right to vote in Democratic Primary 
elections in South Carolina solely because of race or color.

For “ Points”  relied upon by Petitioners in the Circuit 
Court of Appeals, see R. 106. The major issues presented 
in the Circuit Court of Appeals were:

(a) United States v. Classic, 313 U. S. 299, 85 L. 
Ed. 1368 and Smith v. Allwright, 321 U. S. 647, 88 L. 
L. Ed. 987, upon which the District Court pitched its de­
cision, depended upon statutory requirement and regu­
lation of the primary, and inasmuch as in the case at 
bar, there is no State statute regulating the primary by 
law, said cases are not applicable to support the decree 
of the Court.

(b) The Federal Courts are without jurisdiction 
of this suit because no state action was involved, the 
defendants in the District Court were not acting under 
any State statute or law or as State officers or agents, 
but at the times complained of were acting solely in 
their capacity as members of the Democratic Party.

(c) The Democratic Party in South Carolina is 
a voluntary, political association with unrestricted 
choice of membership, and that the defendants at the 
times complained of were not acting under color of any 
State statute or law, but acting solely by virtue of the 
Rules of the Democratic Party.

(d) The Court should protect the traditional and 
constitutional rights of the defendants below under 
the constitutional provision ‘ peaceably to assemble’ . 
Amendment No. 1 to the United States Constitution.

Rice et al, Petitioners, v. Elmore, Respondent 5



6 Rice et al., Petitioners, v. Elmore, Respondent

JURISDICTIONAL STATEMENT
The jurisdiction of this Court is invoked under Section 

240 of the Judicial Code. 28 U. S. C. A. 347 ( a ) :
“ (a) In any case, civil or criminal, in a circuit 

court of appeals, or in the Court of Appeals of the Dis­
trict of Columbia, it shall be competent for the Su­
preme Court of the United States, upon the petition of 
any party thereto, whether Government or other liti­
gant, to require by certiorari, either before or after a 
judgment or decree by such lower court, that the cause 
be certified to the Supreme Court for determination 
by it with the same power and authority, and with like 
effect, as if the cause had been brought there by unre­
stricted writ of error or appeal.”
The decision of the Circuit Court of Appeals for the 

Fourth Circuit is dated December 30, 1947. (R. 123.)

THE QUESTIONS PRESENTED
The questions presented are:

A
Whether the United States Circuit Court of Appeals 

for the Fourth Circuit had jurisdiction to render a declara­
tory judgment and an injunction permanently restraining 
and enjoining the petitioners and their successors in office.

B
Whether petitioners, sixty residents and citizens of 

Richland County, South Carolina, at the times complained 
of were agents or officers of the State of South Carolina in 
such manner as to subject them to the jurisdiction of the 
Federal Court.

C
Whether the Democratic Party of South Carolina is a 

voluntary, political association, with unrestricted choice of 
membership.



D
Whether the cases of Smith v. Allwright, and United 

States v. Classic, supra, depended upon the statutory re­
quirement and regulation of the primaries and whether in­
asmuch as in the case at bar there was no statutory require­
ment or regulation by law of the primary, the said cases 
are applicable to support the judgment of the Circuit Court 
of Appeals.

E
Whether petitioners at the times complained of have 

been deprived of a right secured and protected by Amend­
ment 1 to the United States Constitution or the denial in 
the decision by the Court below of their right “ peaceably 
to assemble” .

F
Whether respondent has a constitutional right to vote 

in the Democratic primary in the State of South Carolina 
where the Democratic Party is wholly unregulated by state 
statutes.

SEASONS RELIED ON FOR THE ALLOWANCE OF
THE WRIT

I
This case involves “ an important question of Federal 

law, which has not been, but should be, settled by this 
Court.”  (Supreme Court Rule 38, par. (5)(b). In Nixon 
v. Condon, 286 U. S. 73, 76 L. Ed. 985, this Court left open 
the question of the inherent power of a political party when 
uncontrolled and unregulated by State law to determine 
its own membership, the Court saying (at page 988):

“ Whether a political party in Texas has inherent 
power today without restraint by any law to determine 
its own membership, we are not required at this time 
either to affirm or to deny.”

Rice et al., Petitioners, v . Elmore, Respondent 7



8 Rice et al, Petitionees, v. Elmore, Respondent

In Smith v. Allwright, supra, this Court, referring to the 
Condon case, held:

“ The question of the inherent power of a political 
party in Texas ‘ without restraint by any law to de­
termine its own membership’ was left open.”  (88 L. 
Ed. p. 994.)

The question there left open has not been determined by 
any decision of this Court. In the ease at bar the primary 
held on August 13,1946, was not required, regulated or con­
trolled in any manner by any law in the State of South 
Carolina. In its decision in the case at bar the Circuit Court 
of Appeals for the Fourth Circuit held: “ It is true, as de­
fendants point out, that the primary involved in Smith v. 
Allwright was conducted under the provisions of state law 
and not merely under party rules, as in the case here, but 
we do not think this is a controlling distinction” . This Court 
has never decided in such circumstance that the primary is 
an integral part of the election machinery. Nor has this 
Court decided in such a case that rules promulgated by a 
political party were not valid. The Circuit Court of Appeals 
for the Fourth Circuit based its decision on a dictum in 
United States v. Classic, supra, and held: “ It is pointed 
out in the case of United States v. Classic, supra, 313 U. S. 
299, that the right to vote in the primary and to have one’s 
vote counted is to be protected, not only where state law 
has made the primary an integral part of the procedure of 
choice, but also where in fact it effectively controls the 
choice, as is unquestionably true in South Carolina.”  This 
dictum is squarely in conflict with the decision of this Court 
in Smith v. Allwright, supra, interpreting the Classic de­
cision as holding that the Congressional power to regulate 
the primary existed only “ where the primary is by law 
made an integral part of the election machinery”  and that 
the decision in the Classic case “ depended, too, on the de-



Rice et al., Petitioners, v. Elmore, Respondent 9

termination that under the Louisiana statutes the primary 
was a part of the procedure for choice of Federal officials.”

II
The decision in the Circuit Court of Appeals held that 

“ political parties have become in effect state institutions, 
governmental agencies through which sovereign power is 
exercised by the people” . And “ when these officials par­
ticipate in what is a part of the state’s election machinery, 
they are election- officers of the state de facto if not de jure, 
and as such must observe the limitations of the Constitu­
tion.”  In thus holding that the petitioners though acting 
solely as members and officers of the Democratic Party 
and not under any state statutes were agents and officers 
of the State of South Carolina and subject to the restraints 
of Sections 2 and 4 of Article I of the United States Consti­
tution, and of the Fourteenth, Fifteenth and Seventeenth 
Amendments, the said Circuit Court of Appeals has de­
cided a “ Federal question in a way probably in conflict with 
applicable decisions of this Court” . (Supreme Court Rule 
38, par. (5)(b).)

III
In failing to determine that the Courts are under an ob­

ligation to protect the constitutional rights of the citizens 
of South Carolina and the petitioners under the constitu­
tional provision “ peaceably to assemble”  (Amendment No. 
1 to the United States Constitution) the said Circuit Court 
of Appeals has decided an important Federal question in 
a way probably in conflict with applicable decisions of this 
Court. (Supreme Court Rule 38, par. (5)(b).)

IV
The decision of the Circuit Court of Appeals in this 

case is in conflict with the decision of the Circuit Court of 
Appeals of the Fifth Circuit in the case of Chapman v.



King, 154 Fed. (2d) 460 (Cert, denied), 66 Sup. Ct. 905, 
90 L. Ed. 1025, April 1, 1946, wherein it was expressly held 
that in the absence of statutory regulation making the 
party an agency of the state, the members of political par­
ties had an unrestricted choice of membership. In that case 
the Court assumed jurisdiction because of the statutory 
requirement and regulation of the primaries, hut expressly 
stated that its holding was based upon such statutory regu­
lation and requirement. The Circuit Court of Appeals in 
the case at bar recognized this conflict and said in reference 
thereto “ while we have great respect for that Court, we are 
of course not hound by these expressions of opinion.”

V
The Circuit Court of Appeals has decided an important 

question of local law in a way in conflict with applicable lo­
cal decisions, in that the said Court held that notwithstand­
ing petitioners were not acting under any statutory author­
ity in connection with the said primary “ they were election 
officers of the state cle facto if not de jure ; whereas, in the 
case of Carolina National Bank v. State of South Carolina 
(60 S. C. 465, 38 S. E. 629), the Supreme Court of South 
Carolina expressly held that:

“  * * * If authorized by valid law, the officer’s 
act is the State’s act; if not so authorized, the officer’s 
act is his own. * * * The State can only act under its 
Constitution and through its legislative enactments 
pursuant thereto.”

VI
The decision of the Circuit Court of Appeals is in di­

rect conflict with the decision of the Supreme Court of Ar­
kansas in the case of Robinson v. Holman, 181 Ark. 482, 
26 S. W. (2d), 66, Arkansas Sup. Ct., March 24, 1930, in 
which the writ of certiorari was denied by the United States 
Supreme Court for lack of jurisdiction (282 U. S. 804, 75 L.

10 Rice et al., Petitioners, v. Elmore, Respondent



Rice et al., Petitioners, v. Elmore, Respondent 11

Ed. 722), and which expressly held that the right to vote in 
a Democratic primary where the Democratic primary was 
not regulated by statute is not protected by the Federal 
Constitution.

Wherefore, your petitioners pray that a writ of cer­
tiorari issue under the seal of this Court, directed to the 
Circuit Court of Appeals for the Fourth Circuit, command­
ing said Court to certify and send to this Court a full and 
complete transcript of the record and of the proceedings of 
the said Circuit Court of Appeals for the Fourth Circuit 
had in the case numbered and entitled on its docket, No. 
5664, Clay Rice et al., Appellants, v. George Elmore, on be­
half of himself and others similarly situated, Appellee, to 
the end that this cause may be reviewed and determined 
by this Court as provided for by the statutes of the United 
States; and that the judgment herein of said Circuit Court 
of Appeals for the Fourth Circuit be reversed by the Court, 
and for such further relief as to this Court may seem 
proper.

CHRISTIE BENET,
IRVINE F. BELSER, 
CHARLES B. ELLIOTT, 
W ILLIAM  P. BASKIN,
P. H. McEACHIN,
J. PERRIN ANDERSON,
W. BRANTLEY HARVEY, 
EDGAR A. BROWN,
YANCEY A. McLEOD,

Counsel for Petitioners.

Dated March t f . ., 1948.





BRIEF IN SUPPORT OF 
PETITION



INDEX TO BRIEF
P age

The Opinion Below .............................................................  15
Jurisdiction ........................................................................... 15
Statement of the C a se .........................................................  18
Specification of Errors .......................................................  18
Argument:

Point A. The District Court and the Circuit Court 
of Appeals did not have Jurisdiction to Render 
a Declaratory Judgment and Injunction Per­
manently Restraining the Petitioners and their
Successors in Office...............................................  19

Point B. The Petitioners at the times Complained 
of were not Agents or Officers of the State . . . .  22 

Point C. The Democratic Party of South Carolina 
at the times Complained of was a voluntary 
political association with unrestricted choice
of membership.......................................................  23

Point D. The decisions in Smith v. Allwright and 
United States v. Classic, supra, depended on the 
determination that under the statutes involved
the primary was required, regulated and con­
trolled in such manner as to make it a part of
the election process .............................................  24

Point E. The petitioners are entitled to the pro­
tection accorded by Amendment I to the United 
States Constitution of the right “ peaceably to
assembly” ...............................................................  24

Point P. The respondent did not have the consti­
tutional right to vote in the Democratic primary 
in the State of South Carolina and the Court 
erred in so holding because at the times com­
plained of the primary was not created, regu­
lated, required or controlled by any State 
statute or law but was conducted “ merely un­
der party rules”  .................................................. 25

Conclusion .............................................................................  27

14



Supreme Court of the United States

OCTOBER TERM, A. D., 1947

No.

CLAY RICE et al., Petitioners, 

versus

GEORGE ELMORE, on B ehalf of H imself and Others 
Similarly Situated, R espondent

BRIEF IN SUPPORT OF PETITION FOR WRIT OF 
CERTIORARI

THE OPINION BELOW

The opinion of the United States Circuit Court of Ap­
peals for the Fourth Circuit, dated December 30, 1947, is 
printed in full in the record. (R. 114.)

JURISDICTION

The jurisdiction of this Court is invoked under Sec­
tion 240 (a) of the Judicial Code (28 U. S. C. 347). Judg­
ment was entered in this case by the United States Circuit 
Court of Appeals on December 30, 1947. (R. 123.) The

15



16 Rice et al., Petitioners, v. Elmore, Respondent

petition for rehearing was denied on February 6, 1948. (R. 
135.)

1

The Circuit Court of Appeals has in this case “ decided 
an important question of Federal law, which has not been, 
but should be, settled by this Court” . (Supreme Court Rule 
38 (5)(b).)  In Smith v. Allwright, 321 U. S. 647, 88 L. Ed. 
987, this Court, referring to Nixon v. Condon, 286 U. S. 73, 
76 L. Ed. 985, held: “ The question of the inherent power of 
a political party in Texas ‘ without restraint by any law to 
determine its own membership’ was left open” . (88 L. Ed. 
994.) The question there left open has not been settled by 
any decision of this Court. In the case at bar the primary 
held on August 13, 1946, was not required, regulated or 
controlled in any manner by any law in the State of South 
Carolina. The Circuit Court of Appeals for the Fourth Cir­
cuit held: “ It is true, as defendants point out, that the pri­
mary involved in Smith v. Allwright was conducted under 
the provisions of state law and not merely under party 
rules, as in the case here, but we do not think this is a con­
trolling distinction.”  (R. 119.) The Circuit Court of Ap­
peals based its decision on a dictum in United States v. 
Classic, 313 U. S. 299, 85 L. Ed. 1368, and held that the pe­
titioners, defendants in the trial Court, were subject to the 
constitutional limitations invoked against them “ not only 
where state law has made the primary an integral part of 
the procedure of choice, but also where in fact it effectively 
controls the choice, as is unquestionably true in South 
Carolina.”  (R. 121.) The ratio decidendi of United States 
v. Classic, swpra, however, is pointedly stated by this Court 
in Smith v. Allwright, supra, wherein this Court interpreted 
the Classic decision as holding that the Congressional power 
to regulate the primary existed only “ where the primary 
is by law made an integral part of the election machinery”



Rice et al., Petitioners, v. Elmore, Respondent 17

and that the decision in the Classic case “ depended, too, 
on the determination that under the Louisiana statutes 
the primary was a part of the procedure for choice of Fed­
eral officials.”

2
The Circuit Court of Appeals has in this case ‘ ‘ decided 

an important question of Federal law in a way probably in 
conflict with applicable decisions of this Court” . (Supreme 
Court Rule 38 (5)(b).)  The decision under review holds 
that the primary involved in Smith v. Allwright, supra, was 
conducted under the provisions of State law and 11 not mere­
ly under party rules, as is the case here, but we do not think 
this a controlling distinction” . The decision is therefore in 
conflict with the decisions of this Court, particularly Smith 
v. Allwright, supra, in which this Court held “ the party 
takes its character as a state agency from the duties im­
posed upon it by state statute”  * * * “ it is state ac­
tion which compels. ’ ’

3
The Circuit Court of Appeals has in this case rendered 

“ a decision in conflict with the decision of another Circuit 
Court of Appeals on the same matter”  and “ has decided 
an important question of local law in a way probably in 
conflict with applicable local decisions” . (Supreme Court 
Rule 38 (5)(b).) The decision of the Circuit Court of Ap­
peals is in conflict with the decision of the Circuit Court 
of Appeals for the Fifth Circuit in the case of Chapman 
v. King, 154 Fed. (2d), 460 (Cert, denied), 66 Sup. Ct. 905, 
90 L. Ed. 1025, April 1, 1946, which held in effect that in 
the absence of statutory regulation making the party an 
agency of the State, members of political parties had an 
unrestricted choice of membership. The decision of the 
Circuit Court of Appeals is likewise in conflict with appli­
cable local decisions. In Carolina National Bank v. State of



18 Rice- et al., Petitioners, v. Elmore, Respondent

South Carolina (60 S. C. 465, 38 S. E. 629), the Supreme 
Court of South Carolina held: “  * * * If authorized by
valid law, the officer’s act is the State’s act; if not so au­
thorized, the officer’s act is his own * * *. The State
can only act under its Constitution and through its legis­
lative enactments pursuant thereto.”

STATEMENT OF THE CASE

This has already been stated in the preceding petition, 
which is hereby adopted and made a part of this brief.

SPECIFICATION OF ERRORS

The Circuit Court of Appeals for the Fourth Circuit 
erred in holding:

Point A
That it had jurisdiction to render a declaratory judg­

ment and injunction, permanently restraining the petition­
ers and their successors in office for the reason that there 
was no state action involved, and that the primary was not 
required by statute and was not an election.

Point B
That the petitioners at the times complained of were 

agents or officers of the State in such manner as to sub­
ject them to the jurisdiction of the Court.

Point C
That the Democratic Party of South Carolina was not 

a voluntary, political association with unrestricted choice 
of membership.

Point D
That the decisions in Smith v. Allwright and United 

States v. Classic, supra, governed and controlled the case 
at bar and that the petitioners were subject to the consti­



Rice et aL, Petitioners, v. Elmore, Respondent 19

tutional restraints invoked against them when in fact the 
primary was conducted “ merely under party rules”  and 
not under the provisions of State law.

Point E
That petitioners at the times complained of were not 

entitled to the protection accorded by Amendment I to the 
United States Constitution of the right “ peaceably to as­
semble” .

Point F
That the respondent has a constitutional right to vote 

in the Democratic primary in the State of South Carolina 
where the Democratic party is wholly unregulated by State 
statute and the primary is conducted merely under party 
rules.

ARGUMENT

Point A
The District Court and the Circuit Court of Appeals did 

not have jurisdiction to render a declaratory judgment and 
injunction permanently restraining the petitioners and 
their successors in office.

The jurisdictional questions were presented in the Dis­
trict Court by motion and by answer (R. 9, 12), and also 
preserved in the Circuit Court of Appeals. (R. 107.) The 
position of petitioners is that the Courts below lacked jur­
isdiction because there was no state action and because 
there were no state statutes requiring and regulating the 
primary as a necessary part of the electoral process.

In Smith v. Allwright, supra, the alleged bases of jur­
isdiction were on the same grounds as stated in the com­
plaint in the cause before the Court and this Court held: 
“ The suit was filed in the District Court of the United 
States for the Southern District of Texas, which had juris­
diction under Judicial Code Section 24, subsection 14, 28



20 R ice et al., Petitionees, v. Elmore, Respondent

U. S. C. A., Section 41 (14), 7 FCA, title 28, Section 41 
(14)” . Jurisdiction was denied by this Court on all other 
grounds.

The said section is as follows:
“ Suits to redress deprivation of civil rights. Four­

teenth. Of all suits at law or in equity authorized by 
law to be brought by any person to redress the depriva­
tion, under color of any law, statute, ordinance, regu­
lation, custom, or usage, of any State, of any right, 
privilege, or immunity, secured by the Constitution of 
the United States, or of any right secured by any law 
of the United States providing for equal rights of citi­
zens of the United States, or of all persons within the 
jurisdiction of the United States.”  (Judicial Code, Sec. 
24; 28 IT. S. C. A. Sec. 41 (14) ).
To the same effect is the following section:

“ Civil action for deprivation of rights:
“ Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any State 
or Territory, subjects, or causes to be subjected, any 
citizen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, 
privileges, or immunities secured by the Constitution 
and laws, shall be liable to the party injured in an ac­
tion at law, suit in equity, or other proper proceeding 
for redress.”  (United States Code, Title 8, Sec. 43, 
U. S. C. A. 43.)
The Circuit Court of Appeals in the case at bar held 

that the petitioners at the times complained of were not 
acting “ under the provisions of State law”  but “ merely un­
der party rules.”  (R. 119.)

“ The party takes its character as a state agency 
from the duties imposed upon it by state statute. 
* * * It is state action which compels.”  Smith v.
Allwright, supra.



Rice et al., Petitioners, v. Elmore, Respondent 21

The decision in the Classic case, supra, was placed 
squarely on the ground that the primary in Louisiana was 
controlled and regulated by statute in such manner as to 
make it an essential part of the statutory process of elec­
tions. “ The Secretary of State is prohibited from placing 
on the official ballot the name of any person as a candidate 
for any political party not nominated in accordance with 
the provisions of the Act.”  “ * * * Misuse of power,
possessed by virtue of state law and made possible only be­
cause the wrongdoer is clothed with the authority of state 
law, is action taken ‘ under color o f ’ state law.”  (Emphasis 
added.)

“ The decision”  (referring to the Classic case) “ de­
pended, too, on the determination that under the Louisiana 
statutes the primary was a part of the procedure for the 
choice of Federal officials.”  (Italics added.) Smith v. All- 
wright, supra.

“ It is state action of a particular character that is pro­
hibited. Individual invasion of individual rights is not the 
subject-matter of the Amendment.”  (Emphasis added.) 
Civil Rights Cases, 109 U. S. 3, 27 L. Ed. 836.

In Barney v. City of New York (1904), 193 U. S. 430, 
48 L. Ed. 737, “ complainant’s grievance was that the law 
of the State had been broken, and not a grievance inflicted 
by action of the legislative or executive or judicial depart­
ment of the State.”  The Supreme Court affirmed the judg­
ment of the trial court den3ring jurisdiction on the ground 
that no state action was involved.

East St. Louis Railway v. City of East St. Louis, 13 
F. (2d) 852, held, relying on the Barney case, supra.

“ Before an agency of the state can be said to be 
acting for the state, there must be a law granting it 
power to act. ’ ’



22 R ice et al., Petitioners, v. Elmore, Respondent

In Snowden v. Hughes, 321 U. S. 1, 88 L. Ed. 497, this 
Court held, concurring opinion by Mr. Justice Frankfurter 
(p. 507), “ but to constitute such unjust discrimination the 
action must be that of the state” .

We submit with confidence that the District Court and 
the Circuit Court of Appeals for the Fourth Circuit lacked 
jurisdiction to render a declaratory judgment and issue a 
permanent injunction against the petitioners and that the 
assumption of jurisdiction for the purposes indicated con­
stituted an unwarrantable and unconstitutional extension of 
the scope of the statutes conferring jurisdiction on the Fed­
eral Courts, and squarely in conflict with the provisions of 
the Fourteenth, Fifteenth and Seventeenth Amendments 
and Article I, Sections 2 and 4 of the United States Consti­
tution, which merely prohibit “ state action”  and not the 
acts of individuals who are not acting under color of state 
law.

Point B
The petitioners at the times complained of were not

agents or officers of the State.
The Circuit Court of Appeals held (R. 120): “ When 

these officials participate in what is part of the state’s elec­
tion machinery, they are election officers de facto if not 
de jure and as such must observe the limits of the Consti­
tution” . But the same Court also held that the primary in­
volved in the case at bar was conducted “ merely under 
party rules”  and not “ under the provisions of state law.”

Petitioners respectfully submit that the Court over­
looked and disregarded the uniform decisions of the Su­
preme Court of the United States, all of which hold that 
a primary has been deemed a state agency only when reg­
ulated and required by state statute. The Court overlooked 
and disregarded the express holding in Smith v. Allwright, 
supra, that



Rice et al., Petitioners, v. Elmore, Respondent 23

“ The party takes its character as a state agency 
from the duties imposed upon it by state statutes; 
* * * it is state action which compels. ”

‘ ‘ But to constitute such unjust discrimination the 
action must be that of the state” . Snowden v. Hughes, 
supra.

And, likewise, the Court overlooked and disregarded 
the law in South Carolina as stated by the Supreme Court 
of that State:

“ * * * I f  authorized by valid law, the officer’s 
act is the State’s act; if not so authorized, the officer’s 
act is his own.”  Carolina National Bank v. State of 
South Carolina (60 S. C. 465, 38 S. E. 629).

Point C
The Democratic Party of South Carolina at the times 

complained of was a voluntary political association with 
unrestricted choice of membership. The uncontradicted evi­
dence conclusively shows that the Democratic Party and the 
Democratic primary in South Carolina are wholly unregu­
lated by statute.

The Circuit Court of Appeals held that
11 The use of the Democratic Primary in connection 

with the general election in South Carolina provides, 
as has been stated, a two step election machinery for 
that state; * *

This language, we submit, does not square with the 
record in the case, the stipulation of facts (E. 33) which 
establish that no primary is required by any statute of 
the State of South Carolina. Indeed the same Court held 
(R. 119) that the primary involved in the case at bar was 
conducted merely “ under party rules”  and not “ under 
the provisions of state law” .

“ The party takes its character as a state Agency 
from the duties imposed upon it by state statutes;



2 4 R ice et al., Petitioners, v. Elmore, Respondent

* * * it is state action which compels” . Smith v.
Allwriqht, supra.

Point D
The decisions in Smith v. Allwright and United States 

v. Classic, supra, depended on the determination that un­
der the statutes involved the primary was required, regu­
lated and controlled in such manner as to make it a part 
of the election process.

How can the quoted language from the decision of the 
Circuit Court of Appeals of the Fourth Circuit square with 
the holding in Smith v. Allwright, supra, that

“ The party takes its character as a state agency 
from the duties imposed upon it by state statutes; 
it is state action which compels” .

and that
“ the decision in the Classic case depended, too, on the 
determination that under the Louisiana statutes, the 
primary was a part of the procedure for choice of Fed­
eral officials.”  (88 L. Ed. 995.)

Point E
The petitioners are entitled to the protection accorded 

by Amendment I to the United States Constitution of the 
right “ Peaceably to Assemble” .

“ The right of peaceable assembly is a right cog­
nate to those of free speech and free press and is equal­
ly fundamental. The Constitution does not confer the 
right, hut guarantees its free exercise. The right of the 
people peaceably to assemble for lawful purposes ex­
isted long before the adoption of the Constitution of 
the United States. It is and always has been one of the 
attributes of citizenship under a free government, and 
is found wherever civilization exists. The very idea of 
a government, republican in form, implies a right on 
the part of its citizens to meet peaceably for consulta­
tion, with respect to public affairs and to petition for



Rice et al., Petitioners, v. Elmore, Respondent 25

a redress of grievances” . 11 Am. Jur., Constitutional 
Law, Sec. 325, p. 1119.

“ The application of the constitutional right of as­
sembly and petition has affected, for the most part, po­
litical administration and election legislation. It has 
been held that a political convention is an assemblage 
within the meaning of constitutional provisions guar­
anteeing the right of peaceable assembly and petition 
and that a statute declaring that candidates for judicial 
and educational offices shall not be nominated, in­
dorsed, recommended, criticized, or referred to in any 
manner by any political party, convention, or primary 
violates such constitutional provisions. The right to 
sign and circulate a petition for the impeachment of 
a public officer is likewise safe-guarded by these con­
stitutional provisions. The right of assemblage, how­
ever, does not in any way prevent the enactment of uni­
form primary laws, under which, in lieu of congregat­
ing at caucuses and conventions and selecting delegates 
that represent them, the voters may assemble at the 
polls in the different polling places and there express 
their choice of candidates.”  11 Am. Jur., Constitutional 
Law, Sec. 325, p. 1121.

“ The right of peaceable assembly is a right cog­
nate to those of free speech and free press and is equal­
ly fundamental” . Be Jonge v. Oregon, 299 U. S. 353, 
364, 81 L. Ed. 278.
In discussing the freedom of the press and its necessity 

in a democracy, Jefferson said: “ Our liberty depends on 
the freedom of the press, and that cannot be limited without 
being lost.”  A  fortiori it would seem that freedom of as­
sociation for political purposes must be as unrestricted 
as freedom of the press.

Point'F
The respondent did not have the constitutional right 

to vote in the Democratic Primary in the State of South Car­
olina and the Court erred in so holding because at the times



26 Rice et al., Petitioners, v. Elmore, Respondent

complained of the primary was not required, regulated or 
controlled by any State statute or law but was conducted 
“ merely under party rules.”

No decision of this Court sustains the right of the re­
spondent to vote in a preferential primary when such pri­
mary is conducted not under the “ provisions of state law” , 
but “ merely under party rules” .

No decision of this Court holds that a preferential pri­
mary conducted not under the “ provisions of state law”  
but “ merely under party rules, as is the case here”  is a 
step in the election process.

No decision of this Court holds that the petitioners at 
the times complained of were officers or agents of the State 
of South Carolina.

“ The State can only act under its Constitution 
and through its legislative enactments pursuant there­
to” . Carolina National Bank v. State of South Caro­
lina, supra.

“ But to constitute such unjust discrimination the 
action must be that of the state.”  Snowden v. Hughes, 
supra.

“ The party takes its character as a state agency 
from the duties imposed upon it by state statutes; 
* * * it is state action which compels.”  Smith v.

Allwright, supra.
“ The Times, Places and Manner of holding Elec­

tions for Senators and Representatives, shall be pre­
scribed in each State by the Legislature thereof; but 
the Congress may at any time by law make or alter 
such Regulations, except as to the Places of choosing 
Senators.”  Article I, Section 4, Clause 1 of the United 
States Constitution.

The record conclusively establishes and the Circuit 
Court of Appeals held that the Legislature of South Caro­



lina had expressly repealed all statutes regulating or con­
trolling primaries and that the only provision in the State 
Constitution dealing with primaries had been repealed and 
that the primary in the case at bar was conducted not un­
der the “ provisions of state law”  but “ merely under party 
rules” . (R. 119.)

“ We there held that Section 4 of Article 1 of the 
Constitution authorized Congress to regulate primary 
as well as general elections * * * where the pri­
mary is by law made an integral part of the election 
machinery” . (Emphasis added.) Smith v. Allivright, 
supra (88 L. Ed. 995.)

CONCLUSION

The ratio decidendi of the Smith-Allwright and Classic 
cases, supra, is that where the statutes of the state have 
made the electoral process consist of two necessary steps, 
one, the primary, and two, the general election, then the 
right to vote in the primary is equally protected with the 
right to vote in the general election. It is clear that the re­
spondent’s exclusion from voting in the primary was whol­
ly a result of party action and not of state action, because 
the record shows that in South Carolina there is no legal 
requirement that a primary (must be held before a general 
election, and therefore there is no two-step process. In its 
opinion the District Court held that there is now no stat­
utory control either civil or criminal of the Democratic pri­
mary and that the Democratic party is no longer governed 
by State statutes, and further, that there is now no law 
in South Carolina, in its Constitution or on its statute 
books, governing primaries. (R. 85.)

In its opinion the Circuit Court of Appeals of the 
Fourth Circuit held:

R ice et al., Petitioners, v. Elmore, Respondent 27



“ It is true, as defendants point out, that the pri­
mary involved in Smith v. Allwright was conducted 
under the provisions of state law and not merely under 
party rules, as is the case here, but we do not think this 
a controlling distinction.”  (Emphasis added.) (R. 119.)

It is clear that the judgment under review does not 
square with the decisions of this Court and denies the sixty 
petitioners, who were defendants in the District Court, the 
constitutional rights both with respect to their right 
‘ ‘ peaceably to assemble”  and with respect to the rights 
reserved under the Tenth Amendment to the United States 
Constitution.

The Court is not here concerned with a question of 
policy but Avith a question of constitutional power. Since 
at the times complained of by the respondent, no statute 
of the State of South Carolina regulated or controlled the 
primaries, no provision of the Constitution or statute in­
voked in the case at bar can be soundly held under the uni­
form decisions of this Court to have deprived the petition­
ers of their right as free men in a democracy to develop 
their faculties of thought and to participate in the activi­
ties of a political party to the end that the deliberative 
forces should pre\mil over the arbitrary. The assumption 
of petitioners soundly supported, as Ave believe, by the pro­
visions of the United States Constitution, is that at the 
times complained of they had the freedom to think as they 
willed and to express their thought as a means indispens­
able to the discovery and spread of political truth.

It is therefore respectfully submitted that this case is 
one calling for the exercise by this Court of its supervisory

28 Rice et at., Petitioners, v. Elmore, Respondent



R ice et al., Petitioners, v. Elmore, Respondent 29

powers, by granting a writ of certiorari and thereafter re­
viewing and reversing said decision.

CHRISTIE BENET,
IRVINE F. BELSER, 
CHARLES B. ELLIOTT, 
W ILLIAM P. BASKIN,
P. H. McEACHIN,
J. PERRIN ANDERSON,
W. BRANTLEY HARVEY, 
EDGAR A. BROWN,
YANCEY A. McLEOD,

Attorneys for Petitioners.









PETITION FOR REHEARING

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5664

CLAY RICE, et al., A ppellants,

versus

GEORGE ELMORE, on B ehale of H imself and Others 
Similarly Situated, A ppellee

A ppeal from the D istrict Court of the U nited States 
for the E astern D istrict of S outh Carolina, 

at Columbia

CHRISTIE BENET, 
IRVINE F. BELSER, 
CHARLES B. ELLIOTT,
W. P. BASKIN,
P. H. McEACHIN,
J. PERRIN ANDERSON,
W. BRANTLEY HARVEY, 
EDGAR A. BROWN, 
YANCEY A. McLEOD,

A ttorneys for A ppellants.

The R. L. Bryan Company, Legal Printers, Columbia, S. C.





INDEX
P age

Petition for Rehearing .......................................................  1

Certificate of C ounsel.........................................................  8

(i)





TABLE OF CASES

Page

Bill of Rights, Amendment 1, U. S. Constitution............ 2

Carolina Nat. Bank v. State of South Carolina 60 S. C.,
465 ................................................................................... 5

Civil Rights C a ses ...............................................................  7

Smith v. Allwright, 321 U. S., 647, 88 L. Ed., 987 3, 4, 5, 6

Snowden v. Hughes, 321 U. S., 15, 88 L. Ed., 507 ........  2, 5

Title 28, 41 sub-see. 14 U. S. C. A ....................................... 7

U. S. v. Classic, 313 U. S., 299, 341, 85 L. Ed., 13 68 .... 3, 5

U. S. Constitution, 14th and 15th Amendm ents...........  6

U. S. v. Nichols, etc., 109 U. S., 3, 27 L. Ed., 836............ 7

(iii)





PETITION FOR REHEARING

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5664

CLAY RICE, et al., A ppellants, 

versus

GEORGE ELMORE, on Behalf of H imself and Others 
Similarly S ituated, A ppellee

Appeal from the D istrict Court of the U nited States 
for the E astern D istrict of S outh Carolina, 

at Columbia

PETITION FOR REHEARING

Come now the appellants in the above-entitled cause 
and respectfully petition this Honorable Court for a re­
hearing therein, and as grounds therefor state:

1. That this Court entirely overlooked and failed to 
comment upon Point 29 (page 112 Appendix for Appel­
lants) which reads as follow s:

“ The Court erred in failing to hold that the Courts 
are under a positive obligation to protect the tradi­
tional and Constitutional rights of the citizens of this 
State and of the Democratic party of South Carolina



2 Rice et al., A ppellants v . Elmore, A ppellee

to choose membership of their party under the Consti­
tutional right to life, liberty and the pursuit of happi­
ness and under the constitutional provision ‘ peaceably 
to assemble (Amendment No. 1 of the United States 
Constitution.) ”
This point was made before the Court; it was referred 

to on page 46 of the brief for Appellants and presented 
fully in the oral argument before the Court. The sixty 
appellants who were the defendants below respectfully, hut 
earnestly insist that they had a right to have this Court 
decide whether they are entitled to the protection of the 
first section of the Bill of Bights.

2. That in the opinion rendered this Court says 
(page 4 ):

“ The question presented for our decision is 
whether, by permitting a party to take over a part of 
its election machinery, a state can avoid the provisions 
of the Constitution forbidding racial discrimination in 
elections and can deny to a part of the electorate, be­
cause of race and color, any effective voice in'the gov­
ernment of the state.”
The appellants submit that in making the statement 

quoted this Court overlooked and disregarded the evidence 
in the case which showed that the State of South Carolina 
had never by any action on its part permitted the Demo­
cratic party to take over a part of its ejection machinery. 
Snowden v. Hughes, 321 U. S., 15, 88 L. Ed., 507, see Mr. 
Justice Frankfurter’s concurring opinion.

3. That in the opinion rendered this Court says 
(page 5 ):

“ The party may, indeed, have been a mere private 
aggregation of individuals in the early days of the Be- 
public, but with the passage of the years, political par­
ties have become in effect state institutions, govern-



mental agencies through which sovereign power is ex­
ercised by the people.”

The appellants respectfully submit that in making the 
foregoing statement the Court overlooked and disregarded 
the uniform decisions of the Supreme Court of the United 
States cited in appellants’ brief, all of which hold that a 
primary has been deemed a state agency only when regu­
lated and required by state statute. Smith v. Allwriglit, 321 
U. S., 647, 88 L. Ed., 987, U. S. v. Classic, 313 U. S., 299, 
,341, 85 L. Ed., 1368.

4. That in the opinion rendered this Court says 
(page 6):

“ * * * In Classic v. United States, 313 U. S.,
299, decided in 1941, however, it was expressly held 
that a primary was an election within the meaning of 
Art. 1, Sec. 4 of the Constitution; and the court pointed 
out that the Neivberry case could not he considered 
authority to the contrary. * * * ”

The appellants respectfully submit that in making the 
foregoing statement the Court overlooked and disregarded 
the fact that the decision in the Classic case was expressly 
predicated on statutory control of the primary by the state 
of Louisiana.

In Smith v. Allwriglit, supra, the Supreme Court of 
the United States interpreted the Classic case as holding 
that the Congressional power to regulate the primary ex­
isted only “ where the primary is by law made an integral 
part of the electoral machinery”  and that the decision in 
the Classic case “ depended too on the determination that 
under the Louisiana statutes, the primary was a part of 
the procedure for choice of federal officials” . 88 L. Ed., 
page 995.

0
R ice et al., A ppellants v. Elmore, A ppellee 3



4 R ice et al., A ppellants v. Elmoee, A ppellee

5. That in the opinion rendered this Court says 
i)(page 8 ):

“ It is true, as defendants point out, that the 
primary involved in Smith v. Allwright was conducted 
under the provisions of state law and not merely under 
party rules, as is the case here, hut we do not think 
this is a controlling distinction. * * *”

The appellants respectfully submit that in the forego­
ing statement the Court overlooked and disregarded the 
basic principle on which the case of Smith v. Allwright was 
determined, to-wit, that the State of Texas (by statutory 
enactment) had put its power behind the rules of the party 
and had adopted the primary as an integral part of its 
electoral machinery. Appellants further respectfully sub­
mit that this Court, in the sentence quoted, also overlooked 
and disregarded the evidence in the case below which 
showed conclusively that there was no statute in South Car­
olina in August, 1946 governing primaries.

How can the quoted language from this Court square 
with the language in the Smith v. Allwright case that “ the 
party takes its character as a state agency from the duties 
imposed upon it by state statute; * * * it is state ac­
tion which compels” .

6. That in tire opinion rendered this- Court says 
(page 9 ):

“  * * * When these officials participate in what
is a part of the state’s election machinery, they are 
election officers of the state de facto if not de jure, and 
as such must observe the limitations of the Constitu­
tion. Having undertaken to perform an important func­
tion relating to the exercise of sovereignty by the peo­
ple, they may not violate the fundamental principles 
laid down by the Constitution for its exercise. * * *”



Rice et al., A ppellants v. Elmore, A ppellee 5

The appellants respectfully submit that in the forego­
ing statement the Court overlooked and disregarded the 
decisions of the United States Supreme Court and the Su­
preme Court of South Carolina, both holding that those 
who act for the state as its agents can only do so under 
legislative authority specifically granted. In the case of 
Carolina National Bank v. State of South Carolina, 60 S. 
C., 465, in which the acts of W. A. Neal, the Superintendent 
of the South Carolina Penitentiary was being considered, 
the Supreme Court of South Carolina said:

“ * * * If authorized by valid law, the officer’s
act is the State’s act; if not so authorized, the officer’s 
act is his own. * * *”  Again “ * * * The State
can only act under its Constitution and through its 
legislative enactments pursuant thereto. * * * ”
In Snowden v. Hughes, 321 U. S., 1, 88 L. Ed., 497 in 

a concurring opinion Mr. Justice Frankfurter said (507):

“ But to constitute such unjust discrimination the 
action must be that of the state. Since the state, for 
present purposes, can only act through functionaries, 
the question naturally arises what functionaries, act­
ing under the circumstances, are to be deemed the state 
for purposes of bringing suit in the federal courts on 
the basis of illegal state action. * * *”
Appellants further submit that the above-quoted lan­

guage from this Court does not square with the language 
in Smith v. Allwright that “ The party takes its character 
•as a state agency from the duties imposed upon it by state 
statutes; * * * it is state action which compels’ ’.

7. That in the opinion rendered this Court says 
(page 8):

“ It is pointed out in the case of United States v. 
Classic, supra, 313 U. S., 299, that the right to vote in 
the primary and to have one’s vote counted is to be pro-



6 Rice et al., A ppellants v. Elmore, A ppellee

tected, not only where state law has made the primary 
an integral part of the procedure of choice, but also 
where in fact it effectively controls the choice, as is un­
questionably true in South Carolina. * * *”
It is respectfully submitted that this Court overlooked 

and disregarded the fact that the Supreme Court of the 
United States in Smith v. Allwright, supra, in construing 
the Classic case held that the 14th and 15th Amendments 
applied only “ where the primary is by law made an integral 
part of the electoral machinery”  and further that the de­
cision in the Classic case “ depended, too, on the determi­
nation that under the Louisiana statutes, the primary was 
a part of the procedure for choice of federal officials” .

8. That in the opinion rendered this Court says 
(page 4 ):

“ That the primary when conducted by the party 
fulfilled the same function in the election machinery of 
the state and was managed in practically the same way 
as when conducted under state law, does not admit of 
doubt.”
It is submitted that, in making the foregoing statement, 

the Court overlooked and disregarded the fact that the 
State of South Carolina, by the repeal of all statutes regu­
lating the primary, removed the power of the State from 
the primary and in so doing repealed all the penal statutes 
regulating the same, and overlooked and disregarded the 
express holding in Smith v. Allwright that

“ The party takes its character as a state agency 
from the duties imposed upon it by state statutes; 
* * * it is state action which compels.”
9. That in the opinion rendered this Court says 

/(page 9 ):
“ * * * Elections in South Carolina remain a

two step process, whether the party primary be ac-



Rice et al., A ppellants v. Elmore, A ppellee 7

counted a preliminary of the general election, or the 
general election be regarded as giving effect to what 
is done in the primary; * * *”

and again says:
‘ ‘ The use of the Democratic primary in connection 

with the general election in South Carolina provides, 
as has been stated, a two step election machinery for 
that state; * * * ”
Appellants submit that this language does not square 

with the record in this case which shows that no primary 
is required under South Carolina election machinery and, 
in fact, that general elections have from time to time 
been held in South Carolina without any primary being 
held in connection therewith.

10. Appellants submit that this Court disregarded and 
overlooked the principle laid down in the famous Civil 
Rights Cases, decided in 1883 by the Supreme Court of 
the United States, wherein it was expressly held that the 
Thirteenth and Fourteenth Amendments did not undertake 
“ to adjust what may he called the social rights of men and 
races in the community”  or to “ apply to every act of dis­
crimination Avhich a person may See fit to make as to the 
quests he will entertain, or as to the people he will take 
into his coach or cab, or car, or admit to his concert or 
theater, or deal with in other matters of intercourse or 
business” . U. S. v. Nichols, etc., 109 U. S., page 3, 27 L. 
Ed., 836.

11. Appellants respectfully submit that in holding that 
it had jurisdiction, the Court overlooked the decision in 
Smith v. Allwriglit, supra. In that case the alleged bases 
of jurisdiction were on the same grounds stated in the 
complaint in the cause before the Court and the Supreme 
Court of the United States expressly affirmed the jurisdic­
tion of the Court under Title 28, 41 sub-sec. 14 of U. S. C. A.



8 R ice e t al., A ppellants v . Elmore, A ppellee

The Supreme Court disallowed jurisdiction upon all other 
alleged grounds. The basis of jurisdiction in Smith v. All- 
wright was the fact that defendants were acting under a 
state statute. In the instant case the Court itself finds that 
there were no statutes in South Carolina affecting prima­
ries at the times alleged in the complaint.

WHEREFORE, petitioners pray:
1. That a rehearing be granted in this case; and
2. That the mandate be stayed pending the determi­

nation of the Court on the petition, and, if this be adverse, 
for a period of ten days thereafter.

Respectfully submitted,
CHRISTIE BENET,
IRVINE F. BELSER, 
CHARLES B. ELLIOTT,
W. P. BASKIN,
P. H. McEACHIN,
J. PERRIN ANDERSON,
W. BRANTLEY HARVEY, 
EDGAR A. BROWN, 
YANCEY A. McLEOD, 

A ttorneys for A ppellants.

STATE OP SOUTH CAROLINA, \ CERTIFICATE OF
COUNTY OF RICHLAND. COUNSEL
The undersigned counsel filing the above petition for 

rehearing certify, each for himself, that it is presented in 
good faith and not for delay.

CHRISTIE BENET,
IRVINE F. BELSER, 
CHARLES B. ELLIOTT,
W. P. BASKIN,

All of Columbia, S. C.







United States Circuit Court of Appeals
FOURTH CIRCUIT 

No. 5664

REPLY BRIEF FOR APPELLANTS

CLAY RICE et al., A ppellants, 

versus
GEORGE ELMORE, On B ehalf of H imself and Others 

Similarly S ituated, A ppellee

On A ppeal from the D istrict Court of the U nited S tates 
for the E astern D istrict of S outh Carolina

CHRISTIE BENET, 
Columbia, S. C.,

IRVINE F. BELSER, 
Columbia, S. C., 

CHARLES B. ELLIOTT, 
Columbia, S. C. 

W ILLIAM P. BASKIN, 
Bishopville, S. C.,

P. H. McEACHIN,
Florence, S. C.,

J. PERRIN ANDERSON, 
Greenwood, S. C.,

W. BRANTLEY HARVEY, 
Beaufort, S. C.,

EDGAR A. BROWN, 
Barnwell, S. C., 

YANCEY A. McLEOD, 
Columbia, S. C., 

Attorneys for Appellants.

FILED

NOV 18 1947

CLAUDE M. DEAN
nT.ramr

The R. L. Bryan Company, Lepal Printers, Columbia, S. C.





SYNOPSIS AND INDEX
Page

I. Appellee’s Argument Has Not Answered Appel­
lants’ Contentions ...............................................  1

II. Classic Case Does Not Provide Any Alternative
Test But Based Upon Statutory Regulation 
and Requirement of P rim a ry ...............................  2

III. Appellee’s Case Fails Because Democratic Party
Not Established as an Agency of the State by 
State Statutes .......................................................  4

IV. Appellee Unable to Show Necessary State Action
to Sustain Federal Jurisdiction.......................... 5

V. Repeal of State Statutes Work a Vital Change in 
the Status of the Democratic Party by Re­
moving the Controlling Hand of the State. . . .  7

VI. Appellee’s Argument Does Not Even Challenge 
the Controlling Decision in the Civil Rights
Cases .......................................................................  8

VII. Appellants’ Right to Limit Democratic Party 
and Primary to White Members Guaranteed by 
United States Constitution ..................................  11

( i )  j



TABLE OF CASES
Page

Board of Education v. Barnette, 319 U. S. 624 (1943).. 13
Butts v. Merchants & M. Transp. Co., 230 U. S. 132... 11
Barnet v. City of New York, 193 U. S. 438, 48 L. Ed. 740 11
Buchanan v. Warley, 245 U. S. 79, 62 L. Ed. 162............ 11
Chapman v. King, 154 Fed. (2d) 460 (Cert. Denied), 66 

Sup. Ct. 905, 90 L. Ed. 1025, April 1, 1946 . . .  .6, 14 
Civil Rights Cases, 109 U. S. 3, 27 L. Ed. 836 . . .  .7, 9, 10 
Classic Case, 313 IT. S. 299, 341, 85 L. Ed. 1368

1, 2, 3, 5, 9, 10
Corrigan v. Buckley, 271 U. S. 330, 70 L. Ed. 972 .......... 11
Frank v. Mangum, 237 U. S. 328, 59 L. Ed. 980 .............. 11
Gradwell Case, 243 U. S. 487, 61 L. Ed. 865 .................. 2
James v. Bowman, 190 U. S. 137, 47 L. Ed. 9 8 1 .......... 10
Logan v. U. S., 144 U. S. 290, 36 L. Ed. 429 ...... .............  10
McCray v. IT. S., 195 U. S. 27, 49 L. Ed. 7 8 .................... 6
Newberry Case, 256 U. S. 232, 65 L. Ed. 9 1 3 .............. 2
Plessy v. Ferguson, 163 U. S. 546, 41 L. Ed. 259 ........  10
Robinson v. Holman, 181 Ark., 428, 26 S. W. (2d), 66, 

Arkansas Sup. Ct., March 24, 1930 (Cert. Denied,
282 U. S. 804, 75 L. Ed. 7 2 2 ) .....................................  1

Smith v. All wright, 321 IT. S. 647, 88 L. Ed. 987
1, 5, 6, 8, 9, 10

Steele v. Louisville & Nashville Railroad, 232 U. S. 192 10 
Tunstall v. Brotherhood of Locomotive Firemen, 323

U. S. 2 1 0 ....................................................................... 10
IT. S. v. Schwimmer, 279 U. S. 644 .................................  13
Yu Cong Eng v. Trinidad, 271 U. S. 521, 70 L. Ed. 1059 11

(ii)



REPLY BRIEF FOR APPELLANTS

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5864

CLAY RICE et al.. A ppellants, 

versus

GEORGE ELMORE, O n B ehalf of H imself and Others 
S imilarly S ituated, A ppellee

On A ppeal from the D istrict Court of the U nited S tates 
for the E astern D istrict of S outh Carolina

I

Appellee’s argument has not answered Appellants’ 
Contentions.

Our main brief on this appeal is based upon three (3) 
principal points, to wit:

(1) That the Classic and Smith v. Allwright cases, 
upon which the decision of the Court below is pitched, do not 
in reality support appellee’s contention, and under the facts 
of this case, where there are no statutes regulating or re­
quiring the primary, become in fact authority for appel­
lants.

(2) That the Federal Courts are without jurisdiction 
of this case for the reason that the actions of the appellants 
being wholly done in their capacity as private individuals 
and as members of the Democratic party, there is no state 
action involved.



2 Rice et al., A ppellants, v. Elmore et al., A ppellees

(3) That the appellants as members of a voluntary po­
litical association, to wit: The Democratic Party of South 
Carolina, were entirely within their rights in excluding the 
appellee from membership in the said association and from 
voting in the nominating primary.

It is submitted that appellee has not really met or an­
swered any of the foregoing of appellants’ points. He has 
not even undertaken to answer the first and third points.

Appellee has cited, and can cite, no case supporting his 
views, where the primary, as in the case at bar, is wholly 
unregulated by statute. He has not even undertaken to dif­
ferentiate the Gradwell case (243 U. S. 487, 61 L. Ed. 865), 
the Newberry case (256 U. S. 232, 65 L. Ed. 913), and Rob­
inson v. Holman (181 Ark. 428, 26 S. W. (2d) 66, Arkansas 
Sup. Ct.—March 24, 1930, Cert. Denied in 282 U. S. 804, 75 
L. Ed. 722), which held that a nominating primary is not an 
election within the meaning of the United States Constitu­
tion.

II

- Classic case does not provide any alternative test but 
based upon statutory regulation and requirement of pri­
mary.

Appellee has sought to argue (see pages 14, 19-20, 24) 
that the Classic case has placed the right of the elector to 
vote in the primary upon two tests, and in the alternative; 
basing his argument on this point upon the following sen­
tence from the Classic case:

“  * * * Where the state law has made the pri­
mary an integral part of the procedure of choice, or 
where in fact the primary effectively controls the 
choice, the right of the elector to have his ballot counted 
at the primary, is likewise included in the right pro­
tected by Article 1, Par. 2.”



Rice et al., A ppellants, v . Elmore et al., A ppellees 3

In reality, however, this sentence must be read in the 
light of the facts of the case and in the light of the other 
portions of the opinion, so that the alleged alternative 
clause therein contained should be qualified by the preced­
ing and succeeding statements contained in the opinion (see 
pages 16 and 17 of our main brief), so that the entire clause 
reads as follows:

“  * * * or where in- fact the primary effectively 
controls the choice”  ( i  e., where “  * * * all political 
parties are required to nominate their candidates for 
representatives by 'direct primary elections”  and 
where “  * * * the Secretary of State is prohibited 
from placing on the official ballot the name of any per­
son as a candidate for any political party not nomi­
nated in accordance with the provisions of the A ct”  
and “ where the primary is by law made an integral 
part of the electoral machinery.” )

This language, too, must be interpreted in the light of 
the interpretation placed on the Classic case by the United 
States Supreme Court itself to the effect that the Classic 
case “ depended, too, on the determination that under the 
Louisiana statutes the primary was a part of the procedure 
for choice of federal officials,”  (88 L. Ed. 995).

It is submitted that there is no real basis for contend­
ing that the Classic case provides.for the right of an elector 
to vote in a primary unless the primary is required and reg­
ulated by state statutes.

The fact that the right to vote in the primary is de­
termined by the presence of the law making it “ an integral 
part of the electoral machinery”  and not by the usual re­
sults of the primary as affecting the general election, is con­
clusively shown by the very next sentence of the opinion, 
which says that where there is such a law, the right is se-



4 R ic e  et al., A p p e l l a n t s , v . E l m o e e  et al., A p p e l l e e s

cured whether the primary “ invariably, sometimes or never 
determines the ultimate choice” .

In other words, the right to vote in the primary depends 
not on the usual or probable result of the primary as affect­
ing the ultimate choice, but on the law making the primary 
an integral part of the electoral machinery.

Moreover, it is idle to contend that the general election 
in South Carolina is a mere formality. Appellee’s own argu­
ment shows (Pages 7 and 8) that in the years 1936 and 
1944 nearly 40% as many votes were cast in the general 
election for Senator and Congressmen as in the primary, 
and that such votes cast for Senator in 1936 and 1944 
amounted to 114,398 and 97,770 votes respectively.

Also, the record shows (appendix, page 39) that in 
many sections of the State of South Carolina the negroes 
far outnumber the whites, so that it would be perfectly 
possible for the Negroes, if qualified electors, in such sec­
tions to win the general election.

The record in this case conclusively establishes that no 
law of the State of South Carolina requires the holding of 
a primary at any time. The statutory law of South Carolina 
does not require any primary prior to a general election, 
and as a matter of fact, since the repeal of the primary as 
well as before, there have been general elections held in the 
State of South Carolina where no primary was previously 
held for the selection of nominees— the most recent of which 
was the general election in Anderson County for the elec­
tion of a member of the House of Representatives—-there 
having been no primary held prior to that general election 
by any party.

I l l

Appellee’s case fails because Democratic Party not 
established as an agency of the State by State Statutes.



R ic e  et aL, A p p e l l a n t s , v. E l m o r e  et al, A p p e l l e e s 5

Appellee in his argument (Pages 10-11, 17-18, 20-21), 
apparently recognizing the impossibility of establishing the 
Democratic Party as an agency of the State of South Caro­
lina, advances the novel idea that the true approach to this 
problem is to determine the “ relationship of the primary to 
the electoral process”  rather than “ whether or not the 
party conducting the primary was an agency of the state” . 
He seeks to argue that the Classic case and the Smith v. AU- 
wright case made a vital change on this point.

It is submitted, however, that this contention is wholly 
unsound and is in direct conflict with the language of the 
Smith v. Allwright case itself.

The Smith v. Allwright case is expressly pitched upon 
its holding and finding (see page 14 of our main argument) 
“ that this statutory system for the selection of party nomi­
nees * * * makes the party which is required to follow 
these legislative directions an agency of the state * * *. 
The party takes its character as a state agency from the du­
ties imposed upon it by state statutes; * * *.”

It is submitted that no case can be found giving the con­
stitutional right to vote in the primary, unless the state 
has by statute made the party an agency of the state for the 
purpose of conducting the primary.

Under the holding of the Smith v. Allwright case to the 
effect that “ the party takes its character as a state agency 
from the duties imposed upon it by the state statutes” , it 
is clear that in this case, since there are no duties imposed 
upon the party by state statutes, the party has no character 
as a state agency.

IV

Appellee unable to show necessary State action to sus­
tain Federal jurisdiction.



Appellee in his argument, while at times suggesting 
(see page 14) that his rights are protected against individ­
uals as well as against state action, apparently in the main 
concedes that state action is necessary in order to confer 
jurisdiction on the Federal Courts (see pages 20 and 21). 
He attempts to find such state action (see his argument, 
pages 20-25) in (a) in alleged continuation of the Demo­
cratic Party to perform the function of conducting a pri­
mary, or (b) in the repeal of the state statutes regulating 
the primary, or (c) in the inaction of the state in not regu­
lating the primary for his benefit.

It is submitted that this contention is wholly unsound. 
It has in large part already been answered fully in our main 
brief (see pages 31-35).

Obviously whether the conduct of the primary is a 
“ state function” , as contended by appellee in his argument 
(page 22), must depend upon whether or not it is so made 
by state statute. This is the clear result of the holding in the
Classic case, the Smith v. Alhvright case and the Chapman 
v. King case.

As to the affirmative action of the State of South Caro­
lina in repealing the regulatory statutes constituting state 
action, it must be obvious that the state had as much right 
to repeal the statutes in 1944 as it had in the first instance 
to enact such statutes. Certainly the liability of appellants 
in this case cannot be continued or sustained upon the the­
ory that such repealing statutes were ineffective.

Even if the motive of the legislature in repealing the 
regulatory statutes can be deduced from the Governor’s 
message, such motive would not in anywise affect the va­
lidity of the repealing statutes. McCray v. United States, 
195 U. S. 27, 49 L. Ed. 78.

6 R ic e  et al., A p p e l l a n t s , v. E l m o r e  et al., A p p e l l e e s



R ic e  et al., A p p e l l a n t s , v . E l m o r e  et al., A p p e l l e e s 7

It is noted that the only authority cited by appellee for 
this contention that inaction on the part of the state may 
constitute state action, so as to confer jurisdiction upon the 
Federal Courts, is an article in the Columbia Law Review.

Appellee’s contention that mere state inaction is tanta­
mount to state action is a restatement of the dissenting 
opinion of Mr. Justice Harlan in the Civil Rights cases 
(1883) supra. But the majority opinion settled the question 
adversely to the contentions of Mr. Justice Harlan, holding 
that no state action was involved, even though, in that case 
the inns, places of amusement, and public conveyances 
were quasi public corporations, deriving their power from 
the common law of the State.

The cases cited by appellee in his brief (Pages 23-24, 
287 IT. S. 378, 207 U. S. 20, 287 U. S. 45, 325 U. S. 91), 
in support of his contention that state action need not de­
pend upon statutory enactment, only served to emphasize 
the distinction between the case at bar and the cases cited. 
In all those cases, and in all the other cases which can be 
cited, the action complained of was the action of state offi­
cials taken in their official capacity acting under state stat­
utory authority, whereas in the case at bar, the appellants 
were acting wholly in their capacity as private individuals 
and as members of the Democratic party.

V

Repeal of State Statutes work a vital change in the 
status of the Democratic Party by removing the controlling 
hand of the State.

Appellee devotes a substantial portion of his argument 
(pages 25-33) to the contention that the repeal of the pri­
mary statutes did not change the status of the Democratic 
primary of South Carolina.



8 R ic e  et al, A p p e l l a n t s , v. E l m o r e  et al., A p p e l l e e s

This argument is based upon the fact that in part the 
Democratic party continued to operate after the repealing 
statutes by the same general method of voting and conven­
tions. It, however, entirely overlooks the basic fact that af­
ter the repealing statutes, the party was wholly a volun­
tary association, was free from any statutory regulation or 
restriction, and that its rules and regulations were enforce­
able only by expulsion from the party, whereas prior to the 
repealing of the statutes, criminal penalties and civil lia­
bility were imposed by law for a violation of the primary 
regulations.

We have already discussed this point to some extent 
in our main argument (see pages 34-35, 40-44), and we re­
affirm our argument therein contained on this point.

If it could be contended that the party took its charac­
ter as a state agency from the regulatory statutes, then it 
follows inevitably by the same reasoning that the repeal of 
the regulating statutes removed and discontinued its status 
as an agency of the state.

As it was said in the Smith v. Allwright case, “ the par­
ty takes its character as a state agency by the duties im­
posed upon it by state statutes” .

The mere fact that the party continued in some measure 
to operate by the same system cannot offset the vital fact 
that the hand of the state has been removed from its control.

VI

Appellee’s argument does not even challenge the con­
trolling decision in the Civil Eights cases.

It is important to note that while the appellee has re­
ferred repeatedly to certain cases heretofore decided by the 
United States Supreme Court, including particularly the



Classic and Smith v. Allwright cases, which, however, for 
the reasons already shown, do not really control in the case 
at bar, he has not even tried to distinguish the leading case 
on the issues really here involved, to w it: the Civil Rights 
cases.

He has thus on the one hand relied upon certain deci­
sions heretofore decided by the United States Supreme 
Court and thereby recognized the soundness of the doctrine 
of stare decisis, but on the other hand, has not undertaken 
to distinguish the one great case which really marks a de­
cisive point in the decisions of the United States Supreme 
Court on the points herein involved. He merely implies that 
it is irrelevant because “ decided prior to the Classic and 
Allwright cases”  (Page 23).

Appellee in his argument freely refers to cases as hav­
ing been “ outmoded”  by the Classic and the Smith v. All­
wright cases. We submit there is no real merit in this idea, 
particularly as applied to the Civil Rights cases.

In those famous cases (£7. S. v. Nichols, ZJ. S. v. Single- 
ton, Robinson et al., v. Memphis and Charleston Railroad 
Co., 109 U. S. 3, 27 L. Ed. 836), which have been regarded as 
leading cases from the time of their decision in 1883 down 
to the present, it was decided that those amendments (13th 
and 14th) did not require hotels, theatres and railroads to 
accept Negroes upon the same terms as whites. It was rec­
ognized that it was not the intent or purpose of the amend­
ments to protect Negroes from discrimination at the hands 
of private individuals or corporations, but only to protect 
them against the action of the state government, and not 
to undertake to enforce equal social rights between the 
races. The Court expressly stated that Congress did not 
assume under those amendments “ to adjust what may be 
called the social rights of men and races in the community”

R ic e  et al., A p p e l l a n t s , v. E l m o r e  et al., A p p e l l e e s  9*



10 R ic e  et al., A p p e l l a n t s , v. E l m o r e  et al., A p p e l l e e s

and further ‘ ‘ It would be running the slavery argument into 
the ground, to make it apply to every act of discrimination 
which a person may see fit to make as to the guests he will 
entertain, or as to the people he will take into his coach or 
cab, or car, or admit to his concert or theater, or deal with 
in other matters of intercourse or business” .

These decisions thus clearly establish two principles 
pertinent to this case: (1) That voluntary associations or 
corporations cannot be required to accept Negroes into 
membership; and (2) That the Fourteenth and Fifteenth 
Amendments apply only as against the actions of states and 
not as against the actions of private individuals or associa­
tions.

The principle established by the Civil Rights cases has 
been recognized and followed by almost innumerable deci­
sions of the United States Supreme Court (including Steele 
v. Louisville & Nashville Railroad, 232 U. S. 192, and Tim- 
stall v. Rrotherliood of Locomotive Firemen, 323 U. S. 210, 
cited in appellee’s brief at page 11), from the date of their 
delivery down to the present time. It is inconceivable to us 
that those famous cases can be considered in any way out­
moded by the Classic and the Smith v. Allwright cases and 
it is submitted that under the authority of those cases, the 
Democratic Party of South Carolina, or any other political 
party, has and had a perfect legal right to exclude Negroes 
from membership therein and from voting in any nominat­
ing primary conducted by the party.

See the following, among many other cases, citing and 
approving the Civil Rights cases:

Logan v. U. S., 144 U. S. 290, 36 L. Ed. 429;
Plessy v. Ferguson, 163 U. S. 546, 41 L. Ed. 259;
James v. Rowman, 190 U. S. 137, 47 L. Ed. 981;



R ic e  et al., A p p e l l a n t s , v. E l m o r e  et al., A p p e l l e e s 11
Barney v. City of New York, 193 U. S. 438, 48 L.

Ed. 740;
Frank v. Mangum, 237 U. S. 328, 59 L. Ed. 980;
Corrigan v. Buckley, 271 U. S. 330, 70 L. Ed. 972;
Butts v. Merchants & M. Transp. Co., 230 U. S.

132;
Buchanan v. Warley, 245 U. S. 79, 62 L. Ed. 162;
Yu Cong Eng v. Trinidad, 271 U. S. 521, 70 L. Ed.

1059.

VII

Appellants’ right to limit Democratic party and pri­
mary to white members guaranteed by United States Con­
stitution.

Appellee’s whole argument and contention in this case, 
it is submitted, is based upon an exaggerated conception 
of his rights and a corresponding disregard of the rights 
of others. He complains of discrimination against him and 
his race but appellants contend and submit that they also 
have basic rights in connection with this matter.

It is earnestly submitted that this case involved the 
most fundamental rights of the appellants as citizens of 
the State of South Carolina and of this country. It is sub­
mitted that they must have, under our constitution and 
laws, the right to organize their own political parties and 
to choose the membership therein. It is submitted that they 
cannot be required to associate in such parties with persons 
whom they do not desire to admit to membership therein 
and who do not sympathize with their political views. 
These rights are predicated upon, and recognized by, the 
following amendments to the United States Constitution, 
which, at the risk of laboring the obvious, we quote below 
for the convenience of the Court:



“ Article 1. Congress shall make no law respecting 
an establishment of religion, or prohibiting the free 
exercise thereof; or abridging the freedom of speech, 
or of the press; or the right of the people peaceably 
to assemble, and to petition the Government for a re­
dress of grievances.

“ Article V. No person shall * * * be de­
prived of life, liberty, or property, without due process 
of law; nor shall private property be taken for public 
use, without just compensation.

“ Article IX. The enumeration in the Constitution, 
of certain rights, shall not be construed to deny or dis­
parage others retained by the people.

“ Article X. The powers not delegated to the 
United States by the Constitution, nor prohibited by it 
to the States, are reserved to the States respectively, or 
to the people.”

It is earnestly submitted that under our theory of gov­
ernment, appellants have a perfect right to organize their 
political party and limit the members thereof to white per­
sons who sympathize with their political views. By the same 
token they would have a perfect legal right, if desired, to 
organize a party for the purpose even of repealing the Four­
teenth and Fifteenth Amendments and they would have the 
right to limit the persons joining such party to persons who 
sympathized with that objective.

In the case at bar, appellee is seeking to vote in a Dem­
ocratic primary and for a candidate who is bound under 
the rules of the party to support the principles of the Dem­
ocratic party, which include the principle that the Demo­
cratic party should be limited to white members (see ap­
pendix, pages 22, 24).

How can the appellee be accorded the right to vote in 
such a primary without destroying the basic rights of the

12 R ic e  et al., A p p e l l a n t s , v . E l m o r e  et al., A p p e l l e e s



members of such party to freedom of political action, free­
dom of thought, freedom of speech and freedom of as­
sembly ?

“ The principle of free thought”  as stated by Mr. Jus­
tice Holmes in U. 8. v. Schwimmer, 279 U. S. 644, is “ not 
free thought for those who agree with us but freedom for 
the thought that we hate” .

“ If there is any fixed star in our constitutional con­
stellation, it is that no official, high or petty, can pre­
scribe what shall be orthodox in politics, nationalism, 
religion, or other matters of opinion or force citizens 

• to confess by word or act their faith therein.”
Board of Education v. Barnette, 319 U. S. 624 

(1943).
It has ever been one of our most cherished beliefs, 

cherished by us as American citizens and lawyers, that this 
is a country of laws and not of men. It is believed that the 
secret of success of the Anglo-American systems of gov­
ernment has been that the rights of its citizens are derived 
from and fixed upon written constitutional documents such 
as Magna Charta, the Bill of Rights and the United States 
Constitution. In this case the rights of the appellants should 
be determined by the laws of the State of South Carolina 
and the constitution and laws of the United States of Amer­
ica. It is submitted, however, that there were no laws of 
the State of South Carolina or of the United States of 
America in existence in 1946 under which the appellants 
should be liable to the appellee in this cause.

Finally it is submitted that the true doctrine estab­
lished by all the cases is, as was determined in the Classic 
case and Smith v. Allwright, that only where the primary 
is a necessary step in the electoral process, because so cre­
ated and regulated by State statute, that one has a consti­
tutional right to participate in such primary.

R ic e  et dl., A p p e l l a n t s , v. E l m o r e  et al., A p p e l l e e s  13



Why, under our system of government, should any 
group of citizens, by a caucus, or by a convention, or by a 
mass meeting, be denied the right to select and put forward 
any candidate to be voted for in the general election? Why 
should not the membership of any such caucus, party, con­
vention or mass meeting, have the full right and preroga­
tive to choose the membership of such caucus, party, con­
vention or mass meeting? Is not such right guaranteed to 
them as an essential element of the rights reserved to the 
people, a right incident to the right of peaceable assembly, 
with which right the United States government, under the 
Constitution, has no right to interfere?

Is not the correct answer to these questions found in the 
specific language of the provisions of the Constitution and 
the implementing statues thereunder pertinent and apposite 
to this case, as well as in the decisions of the Supreme 
Court, as illustrated in the Civil Rights cases and as stated 
in Chapman v. King (154 Fed. (2d), 462): “ We are advised 
of no statute, State or Federal, which undertakes to limit 
the right of citizens who form a political party to select 
those who shall participate in it. Nor is there any statute 
which prohibits those who do participate in a party caucus, 
mass meeting or election from agreeing to support the re­
sult thereof. Accordingly there may be parties composed 
wholly of whites, or wdiolly of colored people, or wholly of 
Jews, or of men, or of women.”

We submit to this Court that the appellants named in 
this action met in open court the issues raised by the com­
plaint and that the stipulation of facts signed by counsel 
and accepted by the Court, and the testimony of the witness, 
Chairman Baskin of the South Carolina Democratic Party 
who was called to the stand by the trial judge himself com­
pletely refuted the charge made in the complaint. Neither 
in the opinion of the trial judge, nor in the brief filed by

14 R ic e  et al., A p p e l l a n t s , v. E l m o r e  et al., A p p e l l e e s



E ic e  et al., A p p e l l a n t s , v. E l m o r e  et al., A p p e l l e e s 15

appellee’s counsel is any effort made to attack this testi­
mony (or to draw any comfort from it). Under the Bill of 
Rights and other provisions of the Constitution the appel­
lants as citizens, had a complete and perfect right to as­
semble as they did, in a voluntary association not created 
or regulated by any state statute, and to express their pref­
erence as to the candidates they would support in the gen­
eral election. With all due respect to this Honorable Court, 
these appellants look to it to protect this sacred right given 
them by the Constitution of the United States as inter­
preted by the Supreme Court and confidently believe that 
these rights cannot, and will not, be taken away from them 
by this or any other tribunal.

Respectfully submitted,

CHRISTIE BENET,

W. P. BASKIN,

CHARLES B. ELLIOTT, 

IRVINE F. BELSER,

P. H. McEACHIN,

J. PERRIN ANDERSON,

W. BRANTLEY HARVEY,, 

EDGAR A. BROWN, 

YANCEY A. McLEOD, 

Attorneys for Appellants-













I N  T H E

Inxttb States (Eirnrit (Emtrt rtf Appeals
Fourth Circuit

No. 5664

CLAY RICE, ET AL., Appellants,

vs.

GEORGE ELMORE, on behalf of himself and others 
similarly situated, Appellee.

ON APPEAL FEOM THE DISTRICT COURT OF THE UNITED STATES 
FOR THE EASTERN DISTRICT OF SOUTH CAROLINA

BRIEF FOR APPELLEE

H arold R. B oulware, 
Columbia, S. C.,

T hurgood M arshall,
New York, N. Y.,

E dward R. D udley,
New York, N. Y.,

Attorneys for Appellee.





I N D E X

PAGE

Statement of Case------------------- —-------------------------------  1
Statement of Facts------------------------------------------------------  2
A r g u m e n t  :

Preliminary Statement ------------------------------------------------  9
I. Prior to the repeal of the primary election statutes

the Democratic Primary of South Carolina was 
subject to federal control_________________________  13
A. The right of appellee and other qualified elec­

tors to vote for elected officials is a right secured 
and protected by the Federal Constitution_____ 13

B. Federal Courts have jurisdiction of this case__ 20
II. Repeal of primary statutes did not change the

status of the Democratic Primary of South Caro­
lina ----------------------------------------------------------------------  25

Conclusion -----------------------------------------------------------------  33

Table of Cases.

Blakeney v. California Shipbuilding Co., 16 Lab. Rel.
Rep. 571 __________________________________________ 11

Chapman v. King, 154 F. (2d) 460 (C. C. A. 5th, 1946),
cert, denied, 66 Sup. Ct. 905 (1946)__________________  23

Civil Rights Cases, 109 U. S. 3 (1883)_________________ 23
Ex Parte Yarbrough, 110 U. S. 651 (1884)___________  13
Guinn v. United States, 238 U. S. 347 (1914)._________ 9
Grovey v. Townsend, 295 U. S. 45 (1935)________________  10
James v. Marinship Corp., 25 Cal. (2d) 721, 155 P.

(2d) 329 (1944)_..._________________________________  11
Kerr v. Enoch Pratt Free Library, 149 F. (2d) 212 

(C. C. A. 4th, 1945) 11



11

PAGE

Lane v. Wilson, 307 U. S. 268 (1938)__________________ 9
Marsh v. Alabama, 326 U. S. 501 (1946)--------------------- 11
Myers v. Anderson, 238 U. S. 368 (1914)--------------------- 9
Newberry v. United States, 256 U. S. 232 (1921)---------  14
Nixon v. Condon, 286 U. S. 73 (1932)-------------------------  10
Nixon v. Herndon, 273 U. S. 536 (1927)----------------------  10
Powell y . Alabama, 287 U. S. 45 (1932)----------------------  24
Raymond v. Chicago Union Traction Co., 207 U. S. 20

(1907) ___________________________________________ 24
Robinson v. Holman, 181 Ark. 428, 26 S. W. (2d) 66 

(1930) Cert, denied, 282 U. S. 804-------------------------  23
Screws v. United States, 325 U. S. 91 (1945)---------------- 24
Smith v. Allwright, 321 U. S. 649 (1944)--------------------- 10
Smith v. Blackwell, 115 F. (2d) 186 (C. C. A. 4th, 1940) 23
State'v^Meharg, 287 W. 670 (1926)---------------------------  26
Sterling v. Constantine, 287 U. S. 378 (1932)-------------- 23
Steele v. Louisville & Nashville RR., 323 U. S. 192

(1944) ___________________________________________ 11
Swafford v. Templeton, 185 U. S. 487 (1902)-------------- 13
Tunstall v. Brotherhood of Locomotive Firemen, 323

U. S. 210 (1944)__________________   11
Thompson v. Moore Drydock Co., 27 Cal. (2d) 595,

165 P. (2d) 901 (1946)_________________    11
United States v. Classic, 313 U. S. 299 (1941)-------------- 10
United States v. Gfradwell, 243 U. S. 476 (1917)----------  23
United States v. Mosely, 238 U. S. 383 (1915)------------  13
Williams v. International Bro., 27 Cal. (2d) 586, 165

P. (2d) 903 (1946)________________________________ H
Wallace Corp. v. N. L. R. B., 323 U. S. 248 (1944)-----  11

Other Authorities Cited.

Negro Disenfranchisement—A Challenge to the Consti­
tution, 47 Col. Law Rev. 76 (1947)-----------------------  22



IN  TH E

Itttfrfc GItmrit (Emtrt nf Appals
Fourth Circuit

Clay R ice, et al.,
Appellants,

vs.

George Elmoke, on behalf of himself and 
others similarly situated,

Appellee.

No. 5664

BRIEF FOR APPELLEE

Statement of Case

On July 12, 1947, the United States District Court for 
the Eastern District of South Carolina, entered an order 
herein declaring that the denial by defendants-appellants, 
of the right of plaintiff-appellee to vote in the primary 
election conducted by the Democratic party of the State of 
South Carolina on account of their race or color was un­
constitutional as a violation of Article I, Sections 2 and 4 
of the Constitution of the United States and of the Four­
teenth and Fifteenth Amendments thereof. Defendants- 
appellants were enjoined from denying plaintiff and other 
qualified Negro electors the right to vote in Democratic 
Primary elections in South Carolina solely on account of 
their race or color.

The case was heard in oral argument before the Court 
on the basis of stipulations of fact filed by the parties and 
the testimony of one witness. Upon the hearing of the



2

case it was decided that the Court would first pass upon 
the question of a declaratory judgment and injunction, and 
that the prayer for money damages, alleged in the com­
plaint to be Five Thousand Dollars ($5000), would he de­
ferred for future submission to a jury in case it was de­
termined that the plaintiff had stated and shown a cause 
of action. The points raised by appellants on this appeal 
have been adjudicated by the lower Court and are set out 
as principal questions in appellants’ brief. Appellees’ reply 
to these questions is contained in the Argument in this 
brief.

Statement of Facts

All parties to this action, both appellee and appellants 
are citizens of the United States and of the State of South 
Carolina and are resident and domiciled in said State (A- 
100).

The appellee at all times material to this action was 
and is a duly and legally qualified elector under the Consti­
tution and laws of the State of South Carolina, and sub­
ject to none of the disqualifications provided for voting 
under the Constitution and Laws of the State of South 
Carolina (A-101).

The Richland County Democratic Executive Committee 
represents the local county unit of the Democratic party of 
South Carolina (A-101).

Since 1900 every Governor, Member of the General As­
sembly, United States Representative and United States 
Senator of the State of South Carolina elected by the peo­
ple of South Carolina in the general elections was a nominee 
of the then existing Democratic party of South Carolina 
(A-103).



3

During the past twenty-five years the Democratic party 
of South Carolina has been the only political party in South 
Carolina which has held state-wide primaries for nomina­
tion of candidates for federal and state offices (A-103).

Although the officers of the Democratic party of South 
Carolina vary from year to year, the membership remains 
essentially the same (A-103).

The Democratic party of South Carolina has always re­
stricted its membership and eligibility to vote in primaries 
to white persons (A-103).

In each general election year, the Democratic party of 
South Carolina repeals all existing rules and adopts new 
rules for the conduct of the party and primaries for the en­
suing years (A-103).

All primaries in South Carolina prior to and subse­
quent to April, 1944 have been conducted in conformity to 
the rules promulgated by the Democratic party of South 
Carolina in each successive general election year (A-103).

All persons conducting the Democratic Primary elec­
tions in South Carolina prior to and subsequent to April, 
1944 conducted these primaries in strict conformity to the 
printed rules of the Democratic party as amended from 
general election year to general election year. (Copies of 
the 1942, ’44 and ’46 rules appear in the evidence in this 
case.) (A-103.)

There is no general election ballot in South Carolina. 
The only printed ballots available in general elections in 
South Carolina are ballots prepared by the political parties 
giving only the names of their respective candidates 
(A-103).

In General Election years, during the past twenty (20) 
} ears and up to and including 1946, the then existing Demo­



4

cratic party of South Carolina prepared ballots giving only 
the names of its nominees for use in general elections by 
any elector who might choose to use same. These ballots 
were distributed by the then existing Democratic party of 
South Carolina to all of the polling places throughout the 
State of South Carolina in the subsequent general elections 
(A-38).

A  number of the Statewide Statutes formerly regulating 
the primaries of all political parties in South Carolina were 
repealed at the 1943 Session of the General Assembly of 
South Carolina effective June 1,1944, and on April 20,1944, 
the General Assembly of South Carolina, after a session of 
less than a week, passed one hundred and fifty acts repeal­
ing all existing statutes which contained any reference di­
rectly or indirectly to primary elections within the state, 
including an act calling for the repeal of Section 10 of 
Article II of the Constitution of South Carolina 1895, the 
only Constitutional provision mentioning primary elections, 
and set in motion the machinery to repeal that provision. 
Subsequently, and on February 14, 1945, the Constitution of 
South Carolina was so amended by Ratification by the Gen­
eral Assembly of South Carolina of said Constitutional 
Amendment (A-103).

The 1944 Special Session of the General Assembly of 
South Carolina was called by the Governor “ for the specific 
purpose of safeguarding our elections, the repealing of all 
laws on the Statute books pertaining to Democratic 
Primary Elections, and to further legislation allowing the 
soldier to vote in the coming elections, ’ ’ and in his address 
to the Joint Assembly stated: “ In my inaugural address 
of January, 1943, I recommended at that time that we re­
peal from our statutes, laws pertaining to primary elections. 
Following up my recommendation, you erased from the



5

statute books many of our laws pertaining to primaries. 
At least as many as you thought necessary at that time to 
protect us under the then-existing ruling of the Supreme 
Court of the United States. Since that time, in fact within 
the last few days, the United States Supreme Court, in a 
Texas decision, has reversed its former ruling, so that it 
now becomes absolutely necessary that we repeal all laws 
pertaining to primaries in order to maintain white suprem­
acy in our Democratic Primaries in South Carolina,”  and 
also “ After these statutes are repealed, in my opinion, 
we will have done everything within our power to guarantee 
white supremacy in our primaries of our State insofar as 
legislation is concerned. Should this prove inadequate, we 
South Carolinians will use the necessary methods to re­
tain white supremacy in our primaries and to safeguard the 
homes and happiness of our people. White supremacy will 
be maintained in our primaries. Let the chips fall where 
they may!”  (A-83).

The 1944 convention of the Democratic party of South 
Carolina following the same procedure as in past general 
election years on May 17, 1944 repealed the old rules and 
adopted new rules governing the party (A-102).

The 1944 rules made no change as to the rule for mem­
bership in the party and voting in the primary which 
limited membership and voting in primary as in the 1942 
rule to persons more than 21 years of age who were white 
Democrats (A-102).

The 1946 rules extended the age limit to all white Demo­
crats over 18 years of age, and added the requirement to be 
able to read or write and interpret the Constitution (A-102).

The 1944 rules removed the word “ election”  in most 
places where it formerly appeared in the 1942 rules; re­
moved all reference to statutes; changed the oath required



6

of candidates for United States Senator and House of 
Representatives by adding additional pledge to support the 
political principles and policies of the Democratic party of 
South Carolina; permitted club secretaries to enroll per­
sons in the armed forces; changed the place of filing of rolls 
of party members from the Clerk of Court to the County 
Chairman; provided that the pledge of candidates be filed 
with the secretary of the party rather than the clerk of the 
Court; provided for an application to the county chairman 
rather than to a judge of competent jurisdiction to any per­
son who was refused enrollment; changed the oath of voters 
from requiring them to support the nominees o f the party, 
state and national, to duty to support the nominees of the 
primary; changed the hours of opening and closing of polls 
in certain cities; added to the provision for the amendment 
of rules a provision that notice to amend be given the state 
chairman at least five days before the convention; and 
simplified rules for absentee voting in order to accommo­
date servicemen. Provision for voting machines was set 
up in the 1946 rules (A-51-76).

The 1944 and 1946 rules of the Democratic party of 
South Carolina continued to include the word “ election” in 
rules 25, 27, 32 and 48 (A-55).

In the 1942, 1944 and 1946 rules of the Democratic party 
of South Carolina the actual conduct of the primary is 
governed by rules 28 and 29; Rule 28 was changed in 1944 
by changing time for run-off elections and removing of the 
words “ or by statute” . Rule 29 remained unchanged (A- 
74-75).

The general method of operating the Democratic party 
of South Carolina such as election of delegates to state 
conventions, election of officers, executive committeemen 
and holding of county and state conventions has been in



7

the same general manner since April, 1944 as before that 
time (A-103).

There has been no material change since April 1944 in 
the manner in which primary elections have been conducted 
in South Carolina from the manner in which they were 
conducted prior to April 1944 (A-103).

There has been no material change since April 1944 in 
the manner in which the Democratic party of South Caro­
lina has prepared its ballots and distributed them to the 
polls for use in general elections from the manner in which 
this was done prior to April 1944 (A-95).

In 1936, 295,470 votes were cast in the Democratic Pri­
mary for Senator and 53,770 votes for Congressman from 
the Second District. 114,398 votes were cast for Senator 
and 21,780 votes for Congressman in the Second District in 
the ensuing general election. (Appendices filed with ap­
pellee’s complaint.)

In 1938 in the first Democratic Primary for Governor 
336,087 votes were cast and in the second primary 313,315 
votes were cast. In the primary for nomination of Senator 
336,956 votes were cast while 45,859 votes were cast for that 
office in the general election. 58,929 votes were cast in the 
primary for nomination of congressmen from the Second 
District while 7,296 votes were cast for that office in the 
general election. (Appendices filed with appellee’s com­
plaint.)

In the 1940 Democratic Primary for Congressman for 
the Second District 52,023 votes were cast while 15,126 
votes were cast in the general election. (Appendices filed 
with appellee’s complaint.)

In 1942 in the Democratic Primary for Senator 234,972 
votes were cast and in the general election for Senator



8

22,556 votes were cast. For Congressman from the Second 
District 40,965 votes were cast and 4,448 votes were cast in 
the general election. (Appendices filed with appellee’s com­
plaint.)

In 1944, 250,776 votes were cast for Senator in the 
Democratic Primary and 97,770 votes were cast in the gen­
eral election. (Appendices filed with appellee’s complaint.)

In 1946 for the office of Governor 290,223 votes were 
cast in the first Democratic Primary held in August; 
253,589 votes were cast in the second primary held on Sep­
tember 3, 1946; and only 26,326 votes were cast in the gen­
eral election for the office of Governor (A-104).

On August 13, 1946, there was held by the Democratic 
party of South Carolina in the State of South Carolina 
and in Richland County a primary election for the choice 
of Democratic nominees for the House of Representatives 
of the United States, for the Governor of South Carolina, 
and various other State and County offices, and on that 
day the plaintiff and a number of other Negroes, all quali­
fied electors under the Constitution of the State of South 
Carolina, presented themselves at the regular polling place 
of Ward 9 Precinct of Richland County, South Carolina, 
during the regular hours that the polling place was open 
and requested ballots and permission to vote in the said 
primary, but the managers refused to permit them to vote 
because they were not white Democrats and were not duly 
enrolled, and in this refusal the managers were acting pur­
suant to the rules and regulations of the Democratic party 
of South Carolina and the instructions of the Chairman 
and members of the Richland County Democratic Executive 
Committee (A-101).



9

A R G U M E N T

Preliminary Statement

This case cannot be considered as an isolated case. It 
is another step in the long struggle to receive recognition 
of the right of Negro citizens to participate in the choice 
of elected officials. The Thirteenth, Fourteenth and F if­
teenth Amendments were enacted for the purpose of re­
moving all discrimination against Negroes and to protect 
all of their rights from discrimination because of race. 
However, this has not yet been accomplished. In many 
states varying types of schemes were started to prevent 
Negroes from voting. In the latter part of the last century 
and the early part of this century two schemes for effectively 
disfranchising Negroes began. These two methods were 
discriminatory registration statutes (Grand-father clause) 
and white primaries in the dominant part of the South, 
the Democratic party.

The Grand-father clauses, even though they made no 
mention of Negroes by name were declared unconstitutional 
by the Supreme Court.1 After these decisions the State 
of Oklahoma enacted another registration statute which 
removed the Grand-father clause but discriminated against 
Negroes without mentioning them by name. This statute 
eventually reached the Supreme Court and was declared 
unconstitutional as being in violation of the Fifteenth 
Amendment.2

1 Myers v. Anderson, 238 U. S. 368 (1914) ; Guinn v. United States, 
238 U. S. 347 (1914).

2 Lane v. W ilson, 307 U. S. 268 (1938).



10

The record as to the white primary of the Democratic 
party is closely similar to that of the discriminatory regis­
tration statutes. The Texas cases 3 demonstrate that after 
each decision of the Supreme Court there was an effort to 
circumvent the decision. After Smith v. Allwright4 5 no 
further effort was made in Texas. However, South Caro­
lina repealed all of its primary statutes in a deliberate 
effort to circumvent this decision and to continue to prevent 
Negroes from exercising their choice of candidates in the 
only meaningful election in South Carolina, viz., the Demo­
cratic Primary.

The fallacy of the argument of the appellants is their 
reliance upon cases and theories of law outmoded since the 
decision of the United States Supreme Court in United 
States v. Classic,s and Smith v. Allwright, supra. In con­
sidering the rights of qualified electors to vote in primary 
elections, the courts prior to the Classic case always based 
their decisions on the question as to whether or not the 
party conducting the primary was an agency of the state.

Beginning with the Classic case, the principle has been 
clearly established that the proper approach to this prob­
lem is first to consider the true relationship of the primary 
to the electoral process rather than to consider whether or 
not the party was a private or state party, or whether the

3 G rovey  v. Tow nsend, 295 U. S. 45 (1935) ; N ix o n  v. Condon, 286 
U. S. 73 (1932) ; N ixon  v. H erndon , 273 U. S. 536, 540 (1927).

4 321 U. S. 649 (1943).
5313 U. S. 299 (1941).



11

officials conducting the primary were private persons or 
state officers.6

Appellants throughout their brief continue to confuse 
the right to membership in a political party with the right 
to vote in primary elections which determine who shall ulti­
mately represent the people in governmental affairs, for 
example, appellants in their conclusion take the position 
that: ‘ ‘ Plaintiff has no more right to vote in the Democratic 
Primary in the State of South Carolina than to vote in the 
election of officers of the Forest Lake Country Club or for 
the officers of the Colonial Dames of America, which prin­
ciple is precisely the same”  (Brief for Appellants, p. 45, 
italics ours). Appellants’ entire case is based upon this 
absurd position.

6 Even assuming for the purpose of argument that the Democratic 
party is in South Carolina a private voluntary association its action 
still violates the Fourteenth and Fifteenth Amendments if in fact a 
state agency relationship exists. In M arsh  v. Alabama, 326 U. S. 501 
(1946), the Supreme Court held that the due process clause of the 
Federal Constitution was a limitation on the actions of a purely private 
corporation since the corporation occupied a peculiar position within 
the economic and political system. In K err  v. E noch P ratt F ree  
Library, 149 F. (2d) 212 (C. C. A. 4th, 1945) this Court held that 
since the corporation had invoked the power of the state for its 
creation and relied upon city funds for its existence it was in fact a 
state function. Recent decisions have indicated that labor unions, 
although private voluntary associations, are subject to the limitations 
of the due process clause of the federal Constitution. S teele  v. Louis­
ville & Nashville Railroad, 323 U. S. 192 (1944); Tunstall v. B roth er­
hood of Locom otive Firem en, 323 U. S. 210 (1944).

Labor unions have also been prevented from infringing such rights 
as the worker’s right to retain his job in a closed shop even though 
the union was a private voluntary association and could not be com­
pelled to accept such worker into membership. James v. M arinship  
Corp., 25 Cal. (2d) 721, 155 P. (2d) 329 (1944); W illiam s v. In ter­
national Brotherhood, 27 Cal. (2d) 586, 165 P. (2d) 903 (1946); 
Thompson v. M oore D ryd ock  Co., 27 Cal. (2d) 595, 165 P. (2d) 
901 (1946); Blakeney  v. California Shipbuilding Co., 16 Lab. Rel. 
Rep. 571; Wallace Corp. v. N . L . R . B ., 323 U. S. 248 (1944).



12

This position of the appellants, representing the last 
dying gasp of the “ white primary”  in this country, is in 
direct opposition to the principles of our Constitution as 
recognized so recently by the United States Supreme Court:

“ The United States is a constitutional democracy. 
Its organic law grants to all citizens a right to par­
ticipate in the choice of elected officials without re­
striction by any state because of race. This grant 
to the people of the opportunity for choice is not to 
be nullified by a state through casting its electoral 
process in a form which permits a private organiza­
tion to practice racial discrimination in the election. 
Constitutional rights would be of little value if they 
could be thus indirectly denied. . . . ” 7

In South Carolina the Democratic party and the elected 
officials of the state are synonymous. In this case we have 
glaring examples of the arrogance and lack of respect for 
our Constitution and governmental authority by the elected 
officials of the State and the legal representatives of the 
Democratic party of South Carolina. The complete dis­
regard by elected officials of South Carolina for our Con­
stitution as interpreted by the Supreme Court is exemplified 
by the statement by the Governor of South Carolina (now 
U. S. Senator) in his message to the legislature:

“ After these statutes are repealed, in my opinion, 
we will have done everything within our power to 
guaranty white supremacy in our primaries of our 
State insofar as legislation is concerned. Should this 
prove inadequate, we South Carolinians will use the 
necessary methods to retain white supremacy in our 
primaries and to safeguard the homes and happiness 
of our people.

“ White supremacy will be maintained in our pri­
maries. Let the chips fall where they m ay!”

7 Sm ith  v. A llw right, supra, at page 664.



13

The complete disregard by the legal representatives of 
the Democratic party of South Carolina of governmental 
authority is exemplified by their comment upon Judge 
W a k in g ’s  careful analysis of their defense as against the 
decisions of the Supreme Court, that:

“ We are reminded of the story told by Boswell 
in his famous ‘ Life of Dr. Samuel Johnson’ to the 
effect that when Dr. Johnson found it difficult or im­
possible to answer the arguments of his opponent, 
he would try to close the argument by saying: ‘ Sir, 
you are a foo l’ ”  (Brief for Appellants, p. 24).

I
Prior to the repeal of the primary election statutes 

the Democratic Primary of South Carolina was subject 
to federal control.

A. The right of appellee and other qualified electors to 
vote for elected officials is a right secured and pro­
tected by the Federal Constitution.

It is too well established for argument that the right of 
a qualified elector to vote for members of the House of 
Representatives and of the Senate is a right secured and 
protected by Article I, Sections 2 and 4, and the Seventeenth 
Amendment to the Federal Constitution.8 It is likewise 
clear that the Democratic Primary in South Carolina was 
subject to federal control. There can be no question that 
this was the reason for the special session to repeal the 
primary statutes. “ And since the constitutional command 
is without restriction or limitation, the right, unlike those

8 U. S. v. Classic, su pra ; E x  P arte Yarbrough, 110 U. S. 651 
(1884); Swafford v. Tem pleton, 185 U. S. 487 (1902); United States 
v. Mosely, 238 U. S. 383 (1915).



14

guaranteed by the Fourteenth and Fifteenth Amendments, 
is secured against the action of individuals as well as of 
states.”  United States v. Classic, supra, at page 315. This 
constitutional protection extends not only to the right to 
vote in the general elections, hut to every primary election 
where the state law has made the primary an integral part 
of the procedure of choice, or where in fact the primary 
effectively controls the choice. “ Unless the constitutional 
protection of the integrity of ‘ elections ’ extends to primary 
elections, Congress is left powerless to effect the constitu­
tional purpose, and the popular choice of representatives is 
stripped of its constitutional protection save only as Con­
gress, by taking over the control of state elections, may ex­
clude from them the influence of the state primaries.” 9

There has never been any question that the Constitu­
tion recognized the right of the federal government to con­
trol general elections. For years there was doubt as to 
whether Article One and the Seventeenth Amendment ap­
plied to primary elections. As a matter of fact, the United 
States Supreme Court on several occasions expressly re­
served the question. However, in 1921 in the case of New­
berry v. United States, 256 U. S. 232, the Court was faced 
with a determination of the constitutionality of federal 
legislation purporting to regulate primaries as well as gen­
eral elections. (Federal Corrupt Practices Act, 36 Stat. 
822-824 (1910).)

In deciding the Newberry case the Court divided four to 
four, a ninth justice reserving his opinion on the question 
of the power of Congress to control primaries under the 
Seventeenth Amendment but declaring the Act unconstitu­
tional in that it was passed before the Amendment was rati­
fied. The Court was evenly divided on the question as to

9 U. S. v. Classic, supra, at page 319 (1941).



15

whether or not Article One applied to primary elections. 
The prevailing opinion written by Mr. Justice M cR eynolds 
took the position that Article One, S. 4 related only to the 
manner of holding general elections and was not a grant 
of authority to the federal government to control the con­
duct of party primaries or conventions. The dissenting- 
justices took the position that Article One, Section 4 gave 
to Congress the right to regulate the primary as well as 
the general election. Mr. Justice P itney in one of the dis­
senting opinions went to the very core of the relationship 
between the primary election, the general election and the 
right of a qualified elector to vote. It was there said:

“ But why should the primary election (or nomi­
nating convention) and the final election he treated 
as things so separate and apart as not to be both in­
cluded in S. 4 of article 1 ? The former has no rea­
son for existence, no function to perform, except as 
a preparation for the latter; and the latter has been 
found by experience in many states impossible of 
orderly and successful accomplishment without the 
former”  (at pp. 281-282).
* * * * * * 

nevertheless it seems to me too clear for discus­
sion that primary elections and nominating conven­
tions are so closely related to the final election, and 
their proper regulation so essential to effective regu­
lation of the latter, so vital to representative govern­
ment, that power to regulate them is within the gen­
eral authority of Congress. It is a matter o f com­
mon knowledge that the great mass of the American 
electorate is grouped into political parties, to one or 
the other of which voters adhere with tenacity, due 
to their divergent views on questions of public policy, 
their interest, their environment, and various other 
influences, sentimental and historical. So strong 
with the great majority of voters are party associa­
tions, so potent the party slogan, so effective the



16

party organization, that the likelihood of a candidate 
succeeding in an election without a party nomina- 
ion is practically negligible. As a result, every voter 
comes to the polls on the day of the general election 
confined in his choice to those few candidates who 
have received party nominations, and constrained to 
consider their eligibility, in point of personal fitness, 
as affected by their party associations and their ob­
ligation to pursue more or less definite lines of policy, 
with which the voter may or may not agree. As a 
practical matter, the ultimate choice of the mass of 
voters is predetermined when the nominations have 
been made”  (at pp. 285-286).

This view has now been adopted by the Court as the proper 
interpretation of Article 1, Section 4 and of the 17th 
Amendment.10

In 1927 the United States Supreme Court was again 
called upon to determine the relationship of the federal 
government to primary elections. Nixon v. Herndon, 
supra, declared unconstitutional a statute of Texas which 
prohibited Negroes from voting in primary elections of the 
Democratic party. The plaintiff-in-error (plaintiff below) 
maintained that the action of the legislature in prohibiting 
Negroes from voting in primaries was in violation of the 
Fourteenth and Fifteenth Amendments. The defendants- 
in-error contended: (1) that the act in question dealt only 
with voting within a designated political party, which was 
but the instrumentality of a group of individuals for the 
furtherance of their own political ideas; (2) that nomina­
tion is distinct from an election; (3) that the question of 
parties and their regulation is political and not legal; and 
(4) that the right of a citizen to vote in a primary is not 
within the protection of the above-mentioned amendments.

10 United States v. Classic, supra ; Sm ith  v. A llw right, supra; Chap­
man v. K ing , infra.



17

The Supreme Court decided that “ the objection that the 
subject matter of the suit is political is little more than a 
play upon words. Of course, the petition concerns political 
action, but it alleges and seeks to recover for private dam­
age. That private damage may be caused by such political 
action, and may be recovered for in a suit at law, hardly 
has been doubted for over two hundred years. . . . ”  The 
opinion also pointed out that: “ If defendant’s conduct was 
a wrong to plaintiff the same reasons that allow a recovery 
for denying plaintiff a vote at a final election allow it for 
denying a vote at the primary election that may determine 
the final result.”  The Court found it unnecessary to con­
sider the Fifteenth Amendment because it is “ hard to 
imagine a more direct and obvious infringement of the 
Fourteenth Amendment.”

The next primary case, also from Texas, was Nixon v. 
Condon, supra. In that case Nixon was again denied the 
right to vote in the Democratic Primary and brought his 
action under the Fourteenth Amendment. He had been 
denied the right to vote in the primary pursuant to a reso­
lution of the State Executive Committee of the Democratic 
party passed pursuant to a statute authorizing state exec­
utive committees of political parties to prescribe qualifi­
cations of its own members and to thereby determine who 
shall be qualified to vote in primaries. The Supreme Court 
held that the refusal to permit the plaintiff to vote was in 
violation of the Fourteenth Amendment hut at the same 
time pointed out that: “ Whether a political party in Texas 
has inherent power today without restraint by any law to 
determine its own membership, we are not required at this 
time to affirm or deny. ’ ’

In the Texas cases the Supreme Court approached the 
problem of the primary elections by considering the rela­
tionship of the political party to the state rather than



18

by considering the relationship of the enterprise, i. e., the 
primary election, to the state and federal government. The 
inevitable result of this line of reasoning is apparent in 
the next Texas primary case.

In Grovey v. Townsend, 295 U. S. 45 (1935) the Negro 
elector was denied the right to vote in the Democratic Pri­
mary pursuant to a resolution of the State Democratic 
Convention. In the opinion of the Court denying relief to 
the petitioner it was pointed out: “ Petitioner insists that 
for various reasons the resolution of the state convention 
limiting membership in the Democratic party in Texas to 
white voters does not relieve the exclusion of Negroes from 
participation in Democratic Primary elections of its true 
nature as the act of the state.”  The Supreme Court fol­
lowing its approach in the other Texas cases of consider­
ing the relationship of the party to the state rather than 
the primary to the state, concluded: “ In the light of prin­
ciples announced by the highest court of Texas, relative to 
the rights and privileges of political parties under the laws 
of that state, the denial of a ballot to a Negro for voting in 
a primary election, pursuant to a resolution adopted by 
the state convention restricting membership in a party to 
white persons, cannot be deemed state action inhibited by 
the Fourteenth and Fifteenth Amendments,”  and also: 
“ That in Texas nomination by the Democratic party is 
equivalent to election, and exclusion from the primary 
virtually disfranchises the voter, does not, without more, 
make out a forbidden discrimination in this case.”  The 
Court also pointed out:

“ The argument is that as a Negro may not be denied 
a ballot at a general election on account of his race 
or color, if exclusion from the primary renders his 
vote at the general election insignificant and useless, 
the result is to deny him the suffrage altogether.



19

So to say is to confuse the privilege of membership 
in a party with the right to vote for one who is to 
hold a public office. With the former the state need 
have no concern, with the latter it is bound to con­
cern itself, for the general election is a function of 
the state government and discrimination by the state 
as respects participation by Negroes on account of 
their race or color is prohibited by the federal consti­
tution. ’ ’

The next primary case to reach the Supreme Court was 
United States v. Classic, supra, involving the refusal to 
count the ballot of a voter in the Democratic Primary of 
Louisiana. The action involved a criminal prosecution 
under Sections 19 and 20 of the Criminal Code in that the 
acts of the defendants violated Article One of the Consti­
tution. In the Classic case the Supreme Court approached 
the problem by considering the relationship of the primary 
to government and concluded that the primary in Louisiana 
was within the provisions of Article One of the United 
States Constitution. The Court concluded that the act of 
refusing to count the vote of an elector in a primary was 
an interference with a right “ secured by the Constitution”  
saying:

“ Where the state law has made the primary an in­
tegral part of the procedure of choice, or where in 
fact the primary effectively controls the choice, the 
right of the elector to have his ballot counted in the 
primary, is likewise included in the right protected 
by Article I, Section 2. And this right of partici­
pation 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 machinery, whether the 
voter exercises his right at a party primary which 
invariably, sometimes or never determines the ulti­
mate choice of the representative.”  (313 U. S. 299 
318.) (Italics ours.)



20

It should be noted that the two tests set forth so clearly 
in the Classic case are in the alternative. So that, under 
the Classic case, the plaintiff in this case is entitled to re­
cover where either “ the state law has made the primary 
an integral part of the procedure of choice, or where in 
fact the primary effectively controls the choice.”

The last primary case to be decided by the Supreme 
Court was Smith v. AUwright, supra, from Texas. The 
facts in the Smith case were essentially the same as in 
Grovey v. Townsend and there were no changes in the rele­
vant statutes of Texas. Following the reasoning in the 
Classic case in approaching the problem by considering the 
relationship of the primary to government rather than 
whether or not the Democratic party was a private volun­
tary organization, the Supreme Court not only held that 
the refusal to permit Negroes to vote in Democratic Pri­
maries of Texas was in violation of the United States Con­
stitution but also expressly overruled Grovey v. Townsend.

With the decision of Grovey v. Toivnsend expressly 
overruled there is now no decision of the Supreme Court 
of the United States that ever raises a question as to the 
full meaning of the alternative tests set forth in the Classic 
case.

B. Federal Courts have jurisdiction of this case.

Appellants in their brief contend that federal courts 
are without jurisdiction of this cause because no state action 
is involved and there is no action on part of appellants 
pursuant to state statute.

This contention is grounded in an erroneous conception 
of how the courts in the light of U. S. v. Classic, supra, now 
approach the problem raised by this suit. The question 
which this suit raises is : What is the fundamental nature



21

of the primary here in question in which appellee seek 
participation? If it is in fact the election, because in the 
circumstances of the case it effectively controls the choice 
in the general election, or because by state law it is made 
an integral part of the procedure of choice, then it is an 
election within the meaning of Article I, Sections 2 and 4, of 
the federal constitution. Once it is determined that it is an 
election within the meaning of these sections because of 
either of these circumstances, then the right of the people 
to participate in such an election becomes a right secured 
by the federal constitution, Article I, Sections 2 and 4, and 
the Seventeenth Amendment.

This right is secured against the actions of individuals 
as well as states. U. S. v. Classic, supra.

The jurisdiction of federal courts may, therefore, be 
invoked under subdivision 1 of Section 41 of Title 28 of 
the United States Code, this being an action at law aris­
ing under the Constitution and laws of the United States, 
viz., Sections 2 and 4 of Article I and the Seventeenth 
Amendment of said Constitution, and the laws of the United 
States, viz., Title 8, Sections 31 and 43 of the United States 
Code.

The jurisdiction of federal courts is also invoked under 
subdivision 11 of Section 41 of Title 28 of the U. S. Code, 
this being an action to enforce the right of a citizen of the 
United States to vote in the State of South Carolina.

This is also an action at law which arises under the 
Fourteenth and Fifteenth Amendments to the Federal Con­
stitution as authorized by Title 28, Section 41, subdivision 1. 
A cause of action arises here because of state action con­
trary to these provisions of the Federal Constitution since, 
despite the fact that all laws, including a constitutional 
provision, regulating primaries in South Carolina have



22

been repealed, the Democratic party in conducting the pri­
mary in 1946 was performing the same state function which 
it performed prior to the repeal of all these laws in 1944. 
It carries on and performs the function of choosing federal, 
state and other officers, and is the only place where the 
determination of selection of elected officers can be had. 
It is the only place where a citizen can exercise his right 
of suffrage where it will have any effect. The primary as 
conducted by appellants being a state function is therefore 
subject to the prohibitions of the Fourteenth and Fifteenth 
Amendments.

The affirmative action of South Carolina in repealing 
all state statutes regulating primary elections in order to 
permit the Democratic party to continue discriminating 
against qualified Negro electors solely on account of their 
race and color is clearly state action prohibited by the Fif­
teenth Amendment. The inaction on the part of the State 
of South Carolina in failing to protect Negro electors from 
the discrimination practised against them by the Demo­
cratic party in its primaries is also such state action as is 
condemned by the Fourteenth and Fifteenth Amendments 
to the Federal Constitution.11

The jurisdiction of federal courts is further invoked 
under subdivision 14 of Section 41 of Title 28 of the United 
States Code, this being an action at law authorized by law 
to be brought to redress the deprivation under color of 
law, statute, regulation, custom and usage of a state of 
rights, privileges and immunities secured by the Constitu­
tion and laws of the United States, viz., Section 31 and 43 
of Title 8 of the United States Code, wherein the matter 
in controversy exceeds, exclusive of interests and costs, tie

11 N egro  D isenfranchisem ent— A  Challenge T o the Constitution, 47 
Col. Law Review, 76, 87 (1947).



23

sum of Three Thousand Dollars ($3,000). “ Custom, or 
usage, of any State”  referred to in subdivision 14 of Section 
41 of Title 28 was found by the Court below to be the con­
ducting of the primary by the Democratic party in the 
same manner and to the same end after 1944 as before.

The cases cited by appellants as controlling on the ques­
tion of jurisdiction fail in every instance to defeat the 
jurisdiction of the federal court in this case. On the con­
trary, they may be divided into two groups:

1. Those cases decided prior to the Classic and 
Allwright cases;12

2. Those cases recognizing that state action in­
cludes action of a character other than legislative 
enactments.13

It is not the contention of appellee that jurisdiction in 
this case must rest upon some positive statutory enactment 
by the State of South Carolina nor did the lower Court so 
find. It is, however, a foregone conclusion beyond the 
rebuttable stage in American jurisprudence that innumer­
able types of action by a state, other than legislative action 
may validly constitute state action within the meaning of 
the Fourteenth and Fifteenth Amendments to the United 
States Constitution.

Executive Action may be State Action. Sterling v. Con­
stantine..14

12 U. S. v. Gradwell, 243 U. S. 476, 61 L. ed. 857 (1917) • N ew ­
berry v U. S., 256 U. S. 232, 65 L. ed. 913 (1921) ; Sm ith  v. B lack- 
inn TT^ S' A; 4th)> U5 Fed. (2d) 186 (1940) ; Civil R ights Cases, 
109 U. S. 3, 27 L. ed. 835 (1883) ; R obinson  v. H olm an, 181 Ark. 428 

13VY ’ 66 (1930) (cert, denied 282 U. S. 804, 75 L. ed. 722).’
U. S. v. Classic, supra ; Sm ith  v. A llw right, supra ; Chapman v. 

Kmg 154 Fed. (2d) 460 (cert, denied 60 Sup. Ct. 905, 90 L. ed. 
1025) (1946).

14 287 U. S. 378 (1932).



24

Administrative Action may be State Action. Raymond 
v. Chicago Union Traction Co.15

Judicial Action may be State Action. Powell v. Ala­
bama.16 17

Any state officer acting under color of state law although 
committing an act outside the scope of duty. Screws v. 
U. S .17 and Nixon v. Herndon, supra.

Jurisdiction is conferred where the state law has made 
the primary an integral part of the procedure of choice, 
or, where in fact the primary effectively controls the choice, 
as here, U. S. v. Classic, supra.

The question of jurisdiction in this type of case is clear 
from the opinion in Smith v. Allwright, supra, by Justice 
R eed, who states:

“ We are thus brought to an examination of the 
qualifications for Democratic primary electors in 
Texas to determine whether state action or private 
action has excluded Negroes from participation. 
Despite Texas’ decision that exclusion is produced by 
private or party action, Bell v. Hill, supra, federal 
courts must for themselves appraise the facts leading 
to that conclusion. It is only by the performance of 
this obligation that a final and uniform interpreta­
tion can be given to the Constitution, ‘ the Supreme 
Law of the Land’ ”  (at p. 662).

While the Texas statutes were present in the Smith case, 
the Court certainly did not close the jurisdictional door on 
a situation where, “ This grant to the people of the oppor­
tunity for choice is not to be nullified by a state through

16 207 U. S. 20 (1907). 
16287 U. S. 45 (1932).
17325 U. S. 91 (1945).



25

casting its electoral process in a form which permits a 
private organization to practice racial discrimination in 
the election. Constitutional rights would be of little value 
if they could be thus indirectly denied.”  (Italics ours), 
Smith v. Allwright, supra.

From this argument, only one conclusion can be deduced 
—the State of South Carolina cannot deliberately cast its 
electoral process in a form permitting an alleged private 
organization to perform an essential governmental func­
tion and at the same time to practice racial discrimination 
in the election that consistently determines who shall rep­
resent the State of South Carolina in the United States 
Government.

II
Repeal of primary statutes did not change the 

status of the Democratic Primary of South Carolina.
The electoral procedure in South Carolina is divided 

into three main steps: registration, primary and general 
election. The first and third of these steps are still cov­
ered by state law. (See: Art. II, Constitution of South 
Carolina.) The second step, the primary election, is pres­
ently free of statutory regulation. However, the Democratic 
Primary is still unquestionably an integral part of the pro­
cedure of choice and participation therein must be kept free 
of restrictions based on race or color if the right to vote as 
secured by the Constitution, is to be or have any real mean­
ing. The Democratic party has operated as a monopoly in 
South Carolina and in the past forty-seven or more years 
its candidates have won every election for governor, repre­
sentatives and senator.18

18 See Stipulations; see also Hesseltine, “ The South in American 
History”, at pages 537, 573-81, 599, 616. Also see Note, “ Negro 
Disenfranchisement— A  Challenge to the Constitution,” 47 Col. L. 
Rev. 76 (1947).



26

The importance of the primary has long been recognized, 
and many states including South Carolina in view of this 
have subjected these primaries to varying degrees of state 
control.19

From 1888 to 1915, the State of South Carolina main­
tained varying degrees of statutory control over primary 
elections. In 1915 the General Assembly of South Carolina 
enacted comprehensive election laws providing for full stat­
utory control of primary as well as general and special elec­
tions.20 Prior to April, 1944, statutes of South Carolina 
regulated the primary as an integral part of the procedure 
of choice of senators and representatives within the mean­
ing of Article I, section 2, of the United States Constitution 
and the Seventeenth Amendment thereto.

In 1941 the United States Supreme Court decided 
United States v. Classic {supra). Athough this case did not 
expressly overrule Grovey v. Townsend {supra) it was ob­
vious that the two decisions were in conflict and that the 
Classic case being the later decision would be controlling. 
On April 3, 1944, the Supreme Court of the United States 
in the case of Smith v. Allwright {supra) removed any 
doubt as to the applicability of the decision in the Classic

19 State v. M eharg, 287 S. W . 670, 672 (1926). One of the major 
reasons for the development of the primary election was that in “the 
South, where nomination by the dominant party meant election, it was 
obvious that the will of the electorate would not be expressed at all, 
unless it was expressed at the primary” . Charles Evans Hughes, 
“ The Fate of the Direct Primary,”  10 National Municipal Review, 
23, 24. See also: Hasbrouck, “ Party Government in the House of 
Representatives”  (1927), 172, 176, 177: Merriam and Overacker, 
“ Primary Elections” (1928), 267-269.

On the great decrease in the vote cast in the general election from 
that cast at the primary in the “ one-party” areas of the country, see 
George C. Stoney, “ Suffrage in the South,”  29 Survey Graphic 163, 
164 (1940).

20 See: Code of Laws of South Carolina, 1942.



27

case to cases where Negroes are denied the right to vote in 
a Democratic Primary which is an integral part of the elec­
tion machinery of a state. It was held that the right to 
participate in a primary could not be nullified by a state 
through casting its electoral process in a form which per­
mits a private organization to practice racial discrimination 
in the election.

Recognizing the applicability of such a decision to South 
Carolina, the Governor of that State, a member of the 
Democratic party of South Carolina, immediately called a 
special session of the General Assembly of that state to 
meet on April 14 , 1944 . The sole purpose of such special 
session was to take legislative steps intended to evade and 
circumvent the decision of the Supreme Court of the United 
States in the case of Smith v. Allwright, supra.

In his message to the General Assembly of South Caro­
lina called in special session, the Governor of South Caro­
lina stated: “ I regret that this ruling by the United States 
Supreme Court has forced this issue upon us hut we must 
meet it like men” ; and: “ History has taught us that we 
must keep our white Democratic Primaries pure and un­
adulterated so that we might protect the welfare and honor 
of all the people of our state.”  The Governor called for 
the repeal of all statutes mentioning primary elections and 
in conclusion stated: “ I f  these statutes are repealed, in my 
opinion, we will have done everything within our power to 
guarantee white supremacy in our primaries of our state 
insofar as legislation is concerned. Should this prove in­
adequate, we South Carolinians will use the necessary meth­
ods to retain white supremacy in our primaries and to safe­
guard the homes and happiness of our people. White su­
premacy will be maintained in our primaries. Let the chips 
fall where they m ay! ’ ’



28

After a session of less than a week the General As­
sembly of South Carolina, composed solely of members of 
the Democratic party of South Carolina, on April 20, 1944, 
passed one hundred and fifty (150) acts repealing all exist­
ing laws which contained any reference, directly or indi­
rectly, to primary elections within the state, including an 
act calling for the repeal of the only constitutional provi­
sion mentioning primary elections and set in motion the 
machinery to repeal that provision. Subsequently the Con­
stitution was so amended.

In 1943 the General Assembly of South Carolina re­
pealed several of the statutes relating to the conduct of 
primary elections to become effective June 1, 1944. (Acts 
of 1943, No. 63, p. 85.) The General Assembly of 1944 at 
the Special Session repealed all of the laws relating to the 
conduct of primary elections including those mentioned 
above to become effective upon approval of the Governor. 
These bills were approved on April 20, 1944.

There can be no doubt of the intention of the Governor 
and General Assembly of South Carolina. When the 1943 
General Assembly repealed certain of the primary statutes 
the case of Smith v. Allwright was pending. Assuming that 
the case would be decided during the October, 1943 term 
of the Supreme Court the effective date of the statute was 
moved up to July 1, 1944. So that, when the case was de­
cided in April 3, 1944 in such manner as to be a precedent 
applicable to South Carolina, all of the primary laws in­
cluding those in the 1943 Act were repealed to take effect 
immediately upon approval by the Governor. It is stipu­
lated and agreed that all of the members of the General As­
sembly and Governor were Democrats. All possible doubt 
of the intention of the Governor and General Assembly is 
removed upon reading the Governor’s Call of the Special 
Session and his message to the General Assembly.



29

There has been no material change in the Democratic 
party or the Democratic Primary of South Carolina since 
the repeal of the statutes. This is clear from the Stipula­
tions (A-33-39) and the testimony of Senator Baskin (A- 
51-77).

The party operated under rules prior to 1944 which were 
changed every two years and now operates under rules 
adopted in the same manner. After the 1944 repeal of 
the statutes the rules were changed to remove all reference 
to statutes and to change the words “ primary election”  to 
“ primary”  and “ nominating primary” .

However there has been no fundamental change in the 
method by which the Democratic Primaries have been con­
ducted in South Carolina. Judge W aking in his opinion 
stated:

“ From the stipulations and the oral testimony 
and from examination of the repealed statutes and 
of the rules of the State Democratic Party which 
were put in evidence, we may briefly summarize the 
organization and methods of the Democratic Party 
in this State, both before and after 1944. Prior to 
1944, as shown by the statutes set forth in the Code 
of South Carolina and from an examination of the 
rules of the party published in 1942, the general 
setup, organization and procedure of the Party may 
be generally stated as follows: In the year 1942 (a 
year wherein certain primaries and general elections 
were to be held) organizations known as clubs in 
various wards (in cities), voting precincts, or other 
subdivisions, met at a time and places designated by 
the State organization. The members of these clubs 
were the persons who had enrolled to vote in the 
primary held two years before and whose names 
were on the books of the clubs, which were the voting 
lists used at such preceding primary. At these club 
meetings, officers were elected, including a County



30

Executive Committeeman from each club and also 
delegates to a County Convention. Shortly there­
after a County Convention was held in each County 
in the State, where the delegates elected its Con­
vention officers, including a member of the State 
Executive Committee and delegates to the State Con­
vention. And shortly thereafter a State Convention 
was held, at which these delegates from the County 
organizations assembled, elected their presiding offi­
cers and a Chairman of the State Executive Com­
mittee (composed of one committeeman from each 
County), and made rules and regulations for the 
conduct of the Party and of primaries. These rules 
and regulations were in conformity with the statute 
law of the State. The State Executive Committee 
was the governing body and the Chairman its chief 
official. The Convention repealed all previous rules 
and regulations and adopted a new set, these being 
however substantially the same as before with some 
slight amendments and changes, and of course new 
provisions for dates of primaries and other details.

In 1944 substantially the same process was gone 
through, although at that time and before the State 
Convention assembled, the statutes had been repealed 
by action of the General Assembly, heretofore set 
out. The State Convention that year adopted a com­
plete new set of rules and regulations, these however 
embodying practically all of the provisions of the 
repealed statutes. Some minor changes were made 
but these amounted to very little more than the usual 
change of procedure in detail from year to year. The 
parties to this cause have filed schedules setting forth 
the detailed changes, the one side attempting to show 
that the changes were of form and not of matter, 
and the other attempting to point out material 
changes. One of the main items of change was to 
strike out the word ‘ election’ throughout the rules. 
It was undoubtedly the intention of the parties in 
charge of revamping the Democratic Party to elimi­
nate the word ‘ election’ wherever it occurred in the



31

rules, substituting instead the word ‘ primary’ or 
‘ nominating primary.’ In 1944 the State Convention 
also elected delegates to the National Democratic 
Convention as it had always done in years of Presi­
dential Elections.

In 1946 substantially the same procedure was used 
in the organization of the Democratic party and an­
other set of rules adopted which were substantially 
the same as the 1944 rules, excepting that the voting 
age was lowered to 18 and party officials were allowed 
the option of using voting machines, and the rules 
relative to absentee voting were simplified (absentee 
voting had heretofore been controlled by certain 
statutes repealed in 1944. (See Code of S outh 
Carolina, S ections 2406-2416.) It is pointed out 
that the word ‘ election’, although claimed to have 
been entirely eliminated, was still used in Rules 25, 
27, 32 and 48”  (A-93-95).

Appellants certainly will not deny that it is the function 
of the state to conduct elections for state and federal officers. 
The Democratic party is in reality carrying on this function 
for the state. This fact receives its emphasis from the 
revelation that the general election in South Carolina has 
become a mere formality as the following excerpt from the 
Stipulation in this cause indicates:

“ In the Democratic Primary of August, 1946, 
290,223 votes were cast for the office of Governor. 
In the Democratic Primary held on September 3, 
1946, 253,589 votes were cast for same office. In the 
general election of November 12, 1946, there were 
26,326 votes cast for the office of Governor.”

Prior to 1944, the actual machinery of the Democratic 
Primaries in South Carolina was controlled by rules promul­
gated by the Democratic party. Since 1944, primary elec­
tions in South Carolina have been conducted pursuant to



32

rules of the Democratic party (A-75). The actual conduct 
of the primary election has not changed. Voters in the 
primary elections are required to take oaths almost identical 
with the oath prior to 1944. The testimony of Senator 
Baskin reveals that with the exception of the repealed 
statutes, the Democratic Primary is operating in essen­
tially the same manner as before except that voting age 
was lowered to eighteen; voting machines were established; 
and results of the primaries are given to party officials 
rather than county officers. The question of whether ex­
penses for primaries are paid by state or party is immate­
rial since the decision in Smith v. Allwright, supra.

The true position of the primary in the “ procedure of 
choice”  of federal and state officers in South Carolina is 
made even clearer by a consideration of the method of 
holding general elections. In this case we are considering 
the right of the plaintiff and other Negro electors to exer­
cise a meaningful choice of elected officials. They can now 
vote only in the general election. There are no general bal­
lots. They must either use the ballots printed by one of the 
parties or write out their own. With this procedure it is 
even more difficult to exercise a meaningful choice than in 
either Louisiana or Texas. The Court can most certainly 
take judicial notice of the general futility of write-in cam­
paigns on a state-wide basis. Political parties, party control 
of its voters, and the cost of political campaigns are reali­
ties which cannot be ignored.

We, therefore, submit that the Democratic Primary in 
South Carolina meets both of the alternative tests recog­
nized in the Classic case. The Chapman case, relied on by 
defendants, does not limit in any way the decision in the 
Classic case. In the first place it is impossible to reconcile 
some of the language in the opinion with the actual deci­



33

sion. In addition tiie Chapman case was based on Sections 
31 and 43 of Title 8 and the Fifteenth Amendment and did 
not embrace Article One of tbe United States Constitution 
as in tlie Classic case.

Conclusion

Our Constitution is a living instrument. The rights 
protected have never been fully enumerated. Basic civil 
rights grounded in the Constitution cannot be revoked by 
technicalities. In South Carolina the Democratic party has 
for years controlled the voters, the legislature, the State, 
and its elected representatives in Congress. It is impos­
sible to discern the line between the Democratic party and 
the State of South Carolina. The repeal of the primary 
statutes was a deliberate attempt to evade the decision of 
the United States Supreme Court and we respectfully 
submit that it is the duty of this Court to give our Con­
stitution the meaning recognized by that Court. Negroes 
of the South have been denied the right to vote by one 
subterfuge after another. Discriminatory registration stat­
utes were changed and changed and there was law suit 
after law suit until the United States Supreme Court in Lane 
y. Wilson, supra, held that the Fifteenth Amendment “ nulli­
fies sophisticated as well as simple-minded modes of dis­
crimination.”  The discriminatory primary statutes were 
changed and changed and there was law suit after law suit 
until the Classic case and then Smith v. Allwright. After 
these decisions it seemed that the right of qualified electors 
to choose their representatives was finally settled. How­
ever, South Carolina seeks to continue its discrimination 
against Negro voters by repealing the statutes and continu­
ing to operate in the same manner as before. This delib­
erate effort to circumvent the decisions of the United States



34

Supreme Court is another challenge to our ability as a 
nation to protect the rights of all of our citizens in practice 
rather than in theory.

W herefore, it is respectfully submitted that the judg­
ment of the United States District Court should be affirmed.

H arold R. B otjlware,
11091/2 Washington Street, 
Columbia, South Carolina,

E dward R. D udley,
20 West 40th Street,
New York 18, New York,

T hurgood M arshall,
20 West 40th Street,
New York 18, New York,

Attorneys for Appellee.







IN  T H E

•Httitti* States ©trrmt (Emtrt of Appeals
Fourth Circuit

No. 5664

CLAY RICE, ET AL., Appellants,

vs.

GEORGrE ELMORE, on behalf of himself and others 
similarly situated, Appellee.

ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES 
FOR THE EASTERN DISTRICT OF SOUTH CAROLINA

BRIEF FOR APPELLEE

H arold R. B oulware, 
Columbia, S. C.,

T hurgood M arshall,
New York, N. Y.,

E dward R. D udley,
New York, N. Y.,

Attorneys for Appellee.





I N D E X

PAGE

Statement of Case--------------------------------------------------------  1
Statement of Facts--------------------------- ------------------------  2
Argument :

Preliminary Statement ------------------------------------------------ 9
I. Prior to the repeal of the primary election statutes

the Democratic Primary of South Carolina was 
subject to federal control_________________________  13
A. The right of appellee and other qualified elec­

tors to vote for elected officials is a right secured 
and protected by the Federal Constitution_____ 13

B. Federal Courts have jurisdiction of this case__ 20
II. Repeal of primary statutes did not change the

status of the Democratic Primary of South Caro­
lina ----------------------------------------------------------------------  25

Conclusion ------------------------------------------------------------------------ 33

Table of Cases.

Blakeney v. California Shipbuilding Co., 16 Lab. Eel.
Rep. 571 __________________________________________ 11

Chapman v. King, 154 F. (2d) 460 (C. C. A. 5th, 1946),
cert, denied, 66 Sup. Ct. 905 (1946)_________________  23

Civil Rights Cases, 109 U. S. 3 (1883)_________________ 23
Ex Parte Yarbrough, 110 U. S. 651 (1884)___________  13
Guinn v. United States, 238 U. S. 347 (1914)_________  9
Grovey v. Townsend, 295 U. S. 45 (1935)________________ 10
James v. Marinship Corp., 25 Cal. (2d) 721, 155 P.

(2d) 329 (1944)___________________________________  11
Kerr v. Enoch Pratt Free Library, 149 F. (2d) 212 

(C. C. A. 4th, 1945) 11



page

Lane v. Wilson, 307 U. S. 268 (1938)---------------------------  9
Marsh v. Alabama, 326 U. S. 501 (1946)--------------------  11
Myers v. Anderson, 238 U. S. 368 (1914)--------------------- 9
Newberry v. United States, 256 U. S. 232 (1921)---------  14
Nixon v. Condon, 286 U. S. 73 (1932)-------------------------  10
Nixon v. Herndon, 273 U. S. 536 (1927)----------------------  10
Powell v. Alabama, 287 U. S. 45 (1932)----------------------  24
Raymond v. Chicago Union Traction Co., 207 U. S. 20

(1907) ___________________________________________ 24
Robinson v. Holman, 181 Ark. 428, 26 S. W. (2d) 66 

(1930) Cert, denied, 282 U. S. 804-------------------------  23
Screws v. United States, 325 U. S. 91 (1945)---------------  24
Smith v. Allwright, 321 U. S. 649 (1944)--------------------  10
Smith v. Blackwell, 115 F. (2d) 186 (C. C. A. 4th, 1940) 23
State v. Meharg, 287 W. 670 (1926)---------------------------  26
Sterling v. Constantine, 287 U. S. 378 (1932)-------------- 23
Steele v. Louisville & Nashville RR., 323 U. S. 192

(1944) ___________________________________________ 11
Swafford v. Templeton, 185 U. S. 487 (1902)-------------- 13
Tunstall v. Brotherhood of Locomotive Firemen, 323

U. S. 210 (1944)__________________________________  11
Thompson v. Moore Drydock Co., 27 Cal. (2d) 595,

165 P. (2d) 901 (1946)__________________________  11
United States v. Classic, 313 U. S. 299 (1941)-------------  10
United States v. G-radwell, 243 U. S. 476 (1917)----------  23
United States v. Mosely, 238 U. S. 383 (1915)------------ 13
Williams v. International Bro., 27 Cal. (2d) 586, 165

P. (2d) 903 (1946)_______________________________  H
Wallace Corp. v. N. L. R. B., 323 U. S. 248 (1944)-----  11

Other Authorities Cited.

Negro Disenfranchisement—A Challenge to the Consti­
tution, 47 Col. Law Rev. 76 (1947)-----------------------  22

11



I N  T H E

intttb States (Utmttl GJnturt of Appeals
Fourth Circuit

Clay R ice, et al.,
Appellants,

vs.

Gteokge E lmore, on behalf of himself and 
others similarly situated,

Appellee.

No. 5664

BRIEF FOR APPELLEE 

Statement of Case

On July 12, 1947, the United States District Court for 
the Eastern District of South Carolina, entered an order 
herein declaring that the denial by defendants-appellants, 
of the right of plaintiff-appellee to vote in the primary 
election conducted by the Democratic party of the State of 
South Carolina on account of their race or color was un­
constitutional as a violation of Article I, Sections 2 and 4 
of the Constitution of the United States and of the Four­
teenth and Fifteenth Amendments thereof. Defendants- 
appellants were enjoined from denying plaintiff and other 
qualified Negro electors the right to vote in Democratic 
Primary elections in South Carolina solely on account of 
their race or color.

The case was heard in oral argument before the Court 
on the basis of stipulations of fact filed by the parties and 
the testimony of one witness. Upon the hearing of the



2

case it was decided that the Court would first pass upon 
the question of a declaratory judgment and injunction, and 
that the prayer for money damages, alleged in the com­
plaint to be Five Thousand Dollars ($5000), would he de­
ferred for future submission to a jury in case it was de­
termined that the plaintiff had stated and shown a cause 
of action. The points raised by appellants on this appeal 
have been adjudicated by the lower Court and are set out 
as principal questions in appellants’ brief. Appellees’ reply 
to these questions is contained in the Argument in this 
brief.

Statement of Facts

All parties to this action, both appellee and appellants 
are citizens of the United States and of the State of South 
Carolina and are resident and domiciled in said State (A- 
100) .

The appellee at all times material to this action was 
and is a duly and legally qualified elector under the Consti­
tution and laws of the State of South Carolina, and sub­
ject to none of the disqualifications provided for voting 
under the Constitution and Laws of the State of South 
Carolina (A-101).

The Richland County Democratic Executive Committee 
represents the local county unit of the Democratic party of 
South Carolina (A-101).

Since 1900 every Governor, Member o f the General As­
sembly, United States Representative and United States 
Senator of the State of South Carolina elected by the peo­
ple of South Carolina in the general elections was a nominee 
of the then existing Democratic party of South Carolina 
(A-103).



3

During the past twenty-five years the Democratic party 
of South Carolina has been the only political party in South 
Carolina which has held state-wide primaries for nomina­
tion of candidates for federal and state offices (A-103).

Although the officers of the Democratic party of South 
Carolina vary from year to year, the membership remains 
essentially the same (A-103).

The Democratic party of South Carolina has always re­
stricted its membership and eligibility to vote in primaries 
to white persons (A-103).

In each general election year, the Democratic party of 
South Carolina repeals all existing rules and adopts new 
rules for the conduct of the party and primaries for the en­
suing years (A-103).

All primaries in South Carolina prior to and subse­
quent to April, 1944 have been conducted in conformity to 
the rules promulgated by the Democratic party of South 
Carolina in each successive general election year (A-103).

All persons conducting the Democratic Primary elec­
tions in South Carolina prior to and subsequent to April, 
1944 conducted these primaries in strict conformity to the 
printed rules of the Democratic party as amended from 
general election year to general election year. (Copies of 
the 1942, ’44 and ’46 rules appear in the evidence in this 
case.) (A-103.)

There is no general election ballot in South Carolina. 
The only printed ballots available in general elections in 
South Carolina are ballots prepared by the political parties 
giving only the names of their respective candidates 
(A-103).

In General Election years, during the past twenty (20) 
years and up to and including 1946, the then existing Demo-



4

cratic party of South Carolina prepared ballots giving only 
the names of its nominees for use in general elections by 
any elector who might choose to use same. These ballots 
were distributed by the then existing Democratic party of 
South Carolina to all of the polling places throughout the 
State of South Carolina in the subsequent general elections 
(A-38).

A  number of the Statewide Statutes formerly regulating 
the primaries of all political parties in South Carolina were 
repealed at the 1943 Session of the General Assembly of 
South Carolina effective June 1,1944, and on April 20,1944, 
the General Assembly of South Carolina, after a session of 
less than a week, passed one hundred and fifty acts repeal­
ing all existing statutes which contained any reference di­
rectly or indirectly to primary elections within the state, 
including an act calling for the repeal of Section 10 of 
Article II of the Constitution of South Carolina 1895, the 
only Constitutional provision mentioning primary elections, 
and set in motion the machinery to repeal that provision. 
Subsequently, and on February 14,1945, the Constitution of 
South Carolina was so amended by Ratification by the Gen­
eral Assembly of South Carolina of said Constitutional 
Amendment (A-103).

The 1944 Special Session of the General Assembly of 
South Carolina was called by the Governor “ for the specific 
purpose of safeguarding our elections, the repealing of all 
laws on the Statute books pertaining to Democratic 
Primary Elections, and to further legislation allowing the 
soldier to vote in the coming elections, ’ ’ and in his address 
to the Joint Assembly stated: “ In my inaugural address 
of January, 1943, I recommended at that time that we re­
peal from our statutes, laws pertaining to primary elections. 
Following up my recommendation, you erased from the



5

statute books many of our laws pertaining to primaries. 
At least as many as you thought necessary at that time to 
protect us under the then-existing ruling of the Supreme 
Court of the United States. Since that time, in fact within 
the last few days, the United States Supreme Court, in a 
Texas decision, has reversed its former ruling, so that it 
now becomes absolutely necessary that we repeal all laws 
pertaining to primaries in order to maintain white suprem­
acy in our Democratic Primaries in South Carolina,”  and 
also “ After these statutes are repealed, in my opinion, 
we will have done everything within our power to guarantee 
white supremacy in our primaries of our State insofar as 
legislation is concerned. Should this prove inadequate, we 
South Carolinians will use the necessary methods to re­
tain white supremacy in our primaries and to safeguard the 
homes and happiness of our people. White supremacy will 
be maintained in our primaries. Let the chips fall where 
they may!”  (A-83).

The 1944 convention of the Democratic party of South 
Carolina following the same procedure as in past general 
election years on May 17, 1944 repealed the old rules and 
adopted new rules governing the party (A-102).

The 1944 rules made no change as to the rule for mem­
bership in the party and voting in the primary which 
limited membership and voting in primary as in the 1942 
rule to persons more than 21 years of age who were white 
Democrats (A-102).

The 1946 rules extended the age limit to all white Demo­
crats over 18 years of age, and added the requirement to be 
able to read or write and interpret the Constitution (A-102).

The 1944 rules removed the word “ election”  in most 
places where it formerly appeared in the 1942 rules; re­
moved all reference to statutes; changed the oath required



6

of candidates for United States Senator and House of 
Representatives by adding additional pledge to support the 
political principles and policies of the Democratic party of 
South Carolina ; permitted club secretaries to enroll per­
sons in the armed forces; changed the place of filing of rolls 
of party members from the Clerk of Court to the County 
Chairman; provided that the pledge of candidates be filed 
with the secretary of the party rather than the clerk of the 
Court; provided for an application to the county chairman 
rather than to a judge of competent jurisdiction to any per­
son who was refused enrollment; changed the oath of voters 
from requiring them to support the nominees of the party, 
state and national, to duty to support the nominees of the 
primary; changed the hours of opening and closing of polls 
in certain cities; added to the provision for the amendment 
of rules a provision that notice to amend be given the state 
chairman at least five days before the convention; and 
simplified rules for absentee voting in order to accommo­
date. servicemen. Provision for voting machines was set 
up in the 1946 rules (A-51-76).

The 1944 and 1946 rules of the Democratic party of 
South Carolina continued to include the word “ election” in 
rules 25, 27, 32 and 48 (A-55).

In the 1942, 1944 and 1946 rules of the Democratic party 
of South Carolina the actual conduct of the primary is 
governed by rules 28 and 29; Rule 28 was changed in 1944 
by changing time for run-off elections and removing of the 
words “ or by statute” . Rule 29 remained unchanged (A- 
74-75).

The general method of operating the Democratic party 
of South Carolina such as election of delegates to state 
conventions, election of officers, executive committeemen 
and holding of county and state conventions has been in



7

the same general manner since April, 1944 as before that 
time (A-103).

There has been no material change since April 1944 in 
the manner in which primary elections have been conducted 
in South Carolina from the manner in which they were 
conducted prior to April 1944 (A-103).

There has been no material change since April 1944 in 
the manner in which the Democratic party of South Caro­
lina has prepared its ballots and distributed them to the 
polls for use in general elections from the manner in which 
this was done prior to April 1944 (A-95).

In 1936, 295,470 votes were cast in the Democratic Pri­
mary for Senator and 53,770 votes for Congressman from 
the Second District. 114,398 votes were cast for Senator 
and 21,780 votes for Congressman in the Second District in 
the ensuing general election. (Appendices filed with ap­
pellee’s complaint.)

In 1938 in the first Democratic Primary for Governor 
336,087 votes were cast and in the second primary 313,315 
votes were cast. In the primary for nomination of Senator 
336,956 votes were cast while 45,859 votes were cast for that 
office in the general election. 58,929 votes were cast in the 
primary for nomination of congressmen from the Second 
District while 7,296 votes were cast for that office in the 
general election. (Appendices filed with appellee’s com­
plaint.)

In the 1940 Democratic Primary for Congressman for 
the Second District 52,023 votes were cast while 15,126 
votes were cast in the general election. (Appendices filed 
with appellee’s complaint.)

In 1942 in the Democratic Primary for Senator 234,972 
votes were cast and in the general election for Senator



8

22,556 votes were cast. For Congressman from the Second 
District 40,965 votes were cast and 4,448 votes were cast in 
the general election. (Appendices filed with appellee’s com­
plaint.)

In 1944, 250,776 votes were cast for Senator in the 
Democratic Primary and 97,770 votes were cast in the gen­
eral election. (Appendices filed with appellee’s complaint.)

In 1946 for the office of Governor 290,223 votes were 
cast in the first Democratic Primary held in August; 
253,589 votes were cast in the second primary held on Sep­
tember 3, 1946; and only 26,326 votes were cast in the gen­
eral election for the office of Governor (A-104).

On August 13, 1946, there was held by the Democratic 
party of South Carolina in the State of South Carolina 
and in Richland County a primary election for the choice 
of Democratic nominees for the House of Representatives 
of the United States, for the Governor of South Carolina, 
and various other State and County offices, and on that 
day the plaintiff and a number of other Negroes, all quali­
fied electors under the Constitution of the State of South 
Carolina, presented themselves at the regular polling place 
of Ward 9 Precinct of Richland County, South Carolina, 
during the regular hours that the polling place was open 
and requested ballots and permission to vote in the said 
primary, hut the managers refused to permit them to vote 
because they were not white Democrats and were not duly 
enrolled, and in this refusal the managers were acting pur­
suant to the rules and regulations of the Democratic party 
of South Carolina and the instructions of the Chairman 
and members of the Richland County Democratic Executive 
Committee (A-101).



9

A R G U M E N T

Preliminary Statement

This case cannot be considered as an isolated case. It 
is another step in the long struggle to receive recognition 
of the right of Negro citizens to participate in the choice 
of elected officials. The Thirteenth, Fourteenth and F if­
teenth Amendments were enacted for the purpose of re­
moving all discrimination against Negroes and to protect 
all of their rights from discrimination because of race. 
However, this has not yet been accomplished. In many 
states varying types of schemes were started to prevent 
Negroes from voting. In the latter part of the last century 
and the early part of this century two schemes for effectively 
disfranchising Negroes began. These two methods were 
discriminatory registration statutes (Grand-father clause) 
and white primaries in the dominant part of the South, 
the Democratic party.

The Grand-father clauses, even though they made no 
mention of Negroes by name were declared unconstitutional 
by the Supreme Court.1 After these decisions the State 
of Oklahoma enacted another registration statute which 
removed the Grand-father clause but discriminated against 
Negroes without mentioning them by name. This statute 
eventually reached the Supreme Court and was declared 
unconstitutional as being in violation of the Fifteenth 
Amendment.2

238
2

1
Myers v. Anderson, 238 U. S. 368 (1914) ; Guinn v. United States, 
U. S. 347 (1914).
Lane v. W ilson, 307 U. S. 268 (1938).



1 0

The record as to the white primary of the Democratic 
party is closely similar to that of the discriminatory regis­
tration statutes. The Texas cases 3 demonstrate that after 
each decision of the Supreme Court there was an effort to 
circumvent the decision. After Smith v. Allwright4 no 
further effort was made in Texas. However, South Caro­
lina repealed all of its primary statutes in a deliberate 
effort to circumvent this decision and to continue to prevent 
Negroes from exercising their choice of candidates in the 
only meaningful election in South Carolina, viz., the Demo­
cratic Primary.

The fallacy of the argument of the appellants is their 
reliance upon cases and theories of law outmoded since the 
decision of the United States Supreme Court in United 
States v. Classic,5 and Smith v. Allwright, supra. In con­
sidering the rights of qualified electors to vote in primary 
elections, the courts prior to the Classic case always based 
their decisions on the question as to whether or not the 
party conducting the primary was an agency of the state.

Beginning with the Classic case, the principle has been 
clearly established that the proper approach to this prob­
lem is first to consider the true relationship of the primary 
to the electoral process rather than to consider whether or 
not the party was a private or state party, or whether the

3 G rovey  v. Tow nsend, 295 U. S. 45 (1935) ; N ixon  v. Condon, 286 
U. S. 73 (1932) ; N ix o n  v. H erndon , 273 U. S. 536, 540 (1927).

4 321 U. S. 649 (1943).
5 313 U. S. 299 (1941).



1 1

officials conducting the primary were private persons or 
state officers.8

Appellants throughout their brief continue to confuse 
the right to membership in a political party with the right 
to vote in primary elections which determine who shall ulti­
mately represent the people in governmental affairs, for 
example, appellants in their conclusion take the position 
that: “ Plaintiff has no more right to vote in the Democratic 
Primary in the State of South Carolina than to vote in the 
election of officers of the Forest Lake Country Club or for 
the officers of the Colonial Dames of America, which prin­
ciple is precisely the same”  (Brief for Appellants, p. 45, 
italics ours). Appellants’ entire case is based upon this 
absurd position. 6

6 Even assuming for the purpose of argument that the Democratic 
party is in South Carolina a private voluntary association its action 
still violates the Fourteenth and Fifteenth Amendments if in fact a 
state agency relationship exists. In M arsh  v. Alabama\, 326 U. S. 501 
(1946), the Supreme Court held that the due process clause of the 
Federal Constitution was a limitation on the actions of a purely private 
corporation since the corporation occupied a peculiar position within 
the economic and political system. In K er r  v. E noch Pratt F ree  
Library, 149 F. (2d) 212 (C. C. A. 4th, 1945) this Court held that 
since the corporation had invoked the power of the state for its 
creation and relied upon city funds for its existence it was in fact a 
state function. Recent decisions have indicated that labor unions, 
although private voluntary associations, are subject to the limitations 
of the due process clause of the federal Constitution. S teele  v. Louis­
ville & Nashville Railroad, 323 U. S. 192 (1944) ; Tunstall v. B rother­
hood of Locom otive Firem en, 323 U. S. 210 (1944).

Labor unions have also been prevented from infringing such rights 
as the worker’s right to retain his job in a closed shop even though 
the union was a private voluntary association and could not be com­
pelled to accept such worker into membership. James v. Marinship  
Corp., 25 Cal. (2d) 721, 155 P. (2d) 329 (1944); W illiam s v. In ter­
national Brotherhood, 27 Cal. (2d) 586, 165 P. (2d) 903 (1946); 
Thompson v. M oore  D ryd ock  Co., 27 Cal. (2d) 595, 165 P. (2d) 
901 (1946); B lakeney  v. California Shipbuilding Co., 16 Lab. Rel. 
Rep. 571; W allace Corp. v. N . L . R . B ., 323 U. S. 248 (1944).



1 2

This position of the appellants, representing the last 
dying gasp of the “ white primary”  in this country, is in 
direct opposition to the principles of our Constitution as 
recognized so recently by the United States Supreme Court:

‘ ‘ The United States is a constitutional democracy. 
Its organic law grants to all citizens a right to par­
ticipate in the choice of elected officials without re­
striction by any state because of race. This grant 
to the people of the opportunity for choice is not to 
be nullified by a state through casting its electoral 
process in a form which permits a private organiza­
tion to practice racial discrimination in the election. 
Constitutional rights would be of little value if they 
could be thus indirectly denied. . . . ” 7

In South Carolina the Democratic party and the elected 
officials of the state are synonymous. In this case we have 
glaring examples of the arrogance and lack of respect for 
our Constitution and governmental authority by the elected 
officials of the State and the legal representatives of the 
Democratic party of South Carolina. The complete dis­
regard by elected officials of South Carolina for our Con­
stitution as interpreted by the Supreme Court is exemplified 
by/the statement by the Governor of South Carolina (now 
U. S. Senator) in his message to the legislature:

“ After these statutes are repealed, in my opinion, 
we will have done everything within our power to 
guaranty white supremacy in our primaries of our 
State insofar as legislation is concerned. Should this 
prove inadequate, we South Carolinians will use the 
necessary methods to retain white supremacy in our 
primaries and to safeguard the homes and happiness 
of our people.

“ White supremacy will be maintained in our pri­
maries. Let the chips fall where they may!”

7 Sm ith  v. A lhvright, supra, at page 664.



13

The complete disregard by the legal representatives of 
the Democratic party of South Carolina of governmental 
authority is exemplified by their comment upon Judge 
W a k in g ’s  careful analysis of their defense as against the 
decisions of the Supreme Court, that:

“ We are reminded of the story told by Boswell 
in his famous ‘ Life of Dr. Samuel Johnson’ to the 
effect that when Dr. Johnson found it difficult or im­
possible to answer the arguments of his opponent, 
he would try to close the argument by saying: ‘ Sir, 
you are a foo l’ ”  (Brief for Appellants, p. 24).

I
Prior to the repeal of the primary election statutes 

the Democratic Primary of South Carolina was subject 
to federal control.

A. The right of appellee and other qualified electors to 
vote for elected officials is a right secured and pro­
tected by the Federal Constitution.

It is too well established for argument that the right of 
a qualified elector to vote for members of the House of 
Representatives and of the Senate is a right secured and 
protected by Article I, Sections 2 and 4, and the Seventeenth 
Amendment to the Federal Constitution.8 It is likewise 
clear that the Democratic Primary in South Carolina was 
subject to federal control. There can be no question that 
this was the reason for the special session to repeal the 
primary statutes. “ And since the constitutional command 
is without restriction or limitation, the right, unlike those *

BU. S. v. Classic, su pra ; E x  P arte Yarbrough, 110 U. S. 651 
(1884); Swafford v. Tem pleton, 185 U. S. 487 (1 9 0 2 ); United States  
v- Mosely, 238 U. S. 383 (1915).



14

guaranteed by the Fourteenth and Fifteenth Amendments 
is secured against the action of individuals as well as of 
states.”  United States v. Classic, supra, at page 315. This 
constitutional protection extends not only to the right to 
vote in the general elections, but to every primary election 
wthere the state law has made the primary an integral part 
of the procedure of choice, or where in fact the primary 
effectively controls the choice. “ Unless the constitutional 
protection of the integrity of ‘ elections ’ extends to primary 
elections, Congress is left powerless to effect the constitu­
tional purpose, and the popular choice of representatives is 
stripped of its constitutional protection save only as Con­
gress, by taking over the control of state elections, may ex­
clude from them the influence of the state primaries.”  9

There has never been any question that the Constitu­
tion recognized the right of the federal government to con­
trol general elections. For years there was doubt as to 
whether Article One and the Seventeenth Amendment ap­
plied to primary elections. As a matter of fact, the United 
States Supreme Court on several occasions expressly re­
served the question. However, in 1921 in the case of New­
berry v. United States, 256 U. S. 232, the Court was faced 
with a determination of the constitutionality of federal 
legislation purporting to regulate primaries as well as gen­
eral elections. (Federal Corrupt Practices Act, 36 Stat. 
822-824 (1910).)

In deciding the Newberry case the Court divided four to 
four, a ninth justice reserving his opinion on the question 
of the power of Congress to control primaries under the 
Seventeenth Amendment but declaring the Act unconstitu­
tional in that it was passed before the Amendment was rati­
fied. The Court was evenly divided on the question as to

9 U. S. v. Classic, supra, at page 319 (1941).



15

whether or not Article One applied to primary elections. 
The prevailing opinion written by Mr. Justice M cR eynolds 
took the position that Article One, S. 4 related only to the 
manner of holding general elections and was not a grant 
of authority to the federal government to control the con­
duct of party primaries or conventions. The dissenting 
justices took the position that Article One, Section 4 gave 
to Congress the right to regulate the primary as well as 
the general election. Mr. Justice P itney in one of the dis­
senting opinions went to the very core of the relationship 
between the primary election, the general election and the 
right of a qualified elector to vote. It was there said:

“ But why should the primary election (or nomi­
nating convention) and the final election be treated 
as things so separate and apart as not to be both in­
cluded in S. 4 of article 1? The former has no rea­
son for existence, no function to perform, except as 
a preparation for the latter; and the latter has been 
found by experience in many states impossible of 
orderly and successful accomplishment without the 
former”  (at pp. 281-282).
* * * * * *

“ —nevertheless it seems to me too clear for discus­
sion that primary elections and nominating conven­
tions are so closely related to the final election, and 
their proper regulation so essential to effective regu­
lation of the latter, so vital to representative govern­
ment, that power to regulate them is within the gen­
eral authority of Congress. It is a matter of com­
mon knowledge that the great mass of the American 
electorate is grouped into political parties, to one or 
the other of which voters adhere with tenacity, due 
to their divergent views on questions of public policy, 
their interest, their environment, and various other 
influences, sentimental and historical. So strong 
with the great majority of voters are party associa­
tions, so potent the party slogan, so effective the



16

party organization, that the likelihood of a candidate 
succeeding in an election without a party nomina- 
ion is practically negligible. As a result, every voter 
conies to the polls on the day of the general election 
confined in his choice to those few candidates who 
have received party nominations, and constrained to 
consider their eligibility, in point of personal fitness, 
as affected by their party associations and their ob­
ligation to pursue more or less definite lines of policy, 
with which the voter may or may not agree. As a 
practical matter, the ultimate choice of the mass of 
voters is predetermined when the nominations have 
been made”  (at pp. 285-286).

This view has now been adopted by the Court as the proper 
interpretation of Article 1, Section 4 and of the 17th 
Amendment.10

In 1927 the United States Supreme Court was again 
called upon to determine the relationship of the federal 
government to primary elections. Nixon v. Herndon, 
supra, declared unconstitutional a statute of Texas which 
prohibited Negroes from voting in primary elections of the 
Democratic party. The plaintiff-in-error (plaintiff below) 
maintained that the action of the legislature in prohibiting 
Negroes from voting in primaries was in violation of the 
Fourteenth and Fifteenth Amendments. The defendants- 
in-error contended: (1) that the act in question dealt only 
with voting within a designated political party, which was 
but the instrumentality of a group of individuals for the 
furtherance of their own political ideas; (2) that nomina­
tion is distinct from an election; (3) that the question of 
parties and their regulation is political and not legal; and 
(4) that the right of a citizen to vote in a primary is not 
within the protection of the above-mentioned amendments.

10 United States v. Classic, supra ; Sm ith  v. A llw right, supra; Chap­
man v. K ing , infra.



17

The Supreme Court decided that “ the objection that the 
subject matter of the suit is political is little more than a 
play upon words. Of course, the petition concerns political 
action, but it alleges and seeks to recover for private dam­
age. That private damage may be caused by such political 
action, and may be recovered for in a suit at law, hardly 
has been doubted for over two hundred years. . . . ”  The 
opinion also pointed out that: “ If defendant’s conduct was 
a wrong to plaintiff the same reasons that allow a recovery 
for denying plaintiff a vote at a final election allow it for 
denying a vote at the primary election that may determine 
the final result.”  The Court found it unnecessary to con­
sider the Fifteenth Amendment because it is “ hard to 
imagine a more direct and obvious infringement of the 
Fourteenth Amendment. ’ ’

The next primary case, also from Texas, was Nixon v. 
Condon, supra. In that case Nixon was again denied the 
right to vote in the Democratic Primary and brought his 
action under the Fourteenth Amendment. He had been 
denied the right to vote in the primary pursuant to a reso­
lution of the State Executive Committee of the Democratic 
party passed pursuant to a statute authorizing state exec­
utive committees of political parties to prescribe qualifi­
cations of its own members and to thereby determine who 
shall be qualified to vote in primaries. The Supreme Court 
held that the refusal to permit the plaintiff to vote was in 
violation of the Fourteenth Amendment but at the same 
time pointed out that: “ Whether a political party in Texas 
has inherent power today without restraint by any law to 
determine its own membership, we are not required at this 
time to affirm or deny.”

In the Texas cases the Supreme Court approached the 
problem of the primary elections by considering the rela­
tionship of the political party to the state rather than



18

by considering the relationship of the enterprise, i. e., the 
primary election, to the state and federal government. The 
inevitable result of this line of reasoning is apparent in 
the next Texas primary case.

In Grovey v. Townsend, 295 U. S. 45 (1935) the Negro 
elector was denied the right to vote in the Democratic Pri­
mary pursuant to a resolution of the State Democratic 
Convention. In the opinion of the Court denying relief to 
the petitioner it was pointed out: “ Petitioner insists that 
for various reasons the resolution of the state convention 
limiting membership in the Democratic party in Texas to 
white voters does not relieve the exclusion of Negroes from 
participation in Democratic Primary elections of its true 
nature as the act of the state.”  The Supreme Court fol­
lowing its approach in the other Texas cases of consider­
ing the relationship of the party to the state rather than 
the primary to the state, concluded: “ In the light of prin­
ciples announced by the highest court of Texas, relative to 
the rights and privileges of political parties under the laws 
of that state, the denial of a ballot to a Negro for voting in 
a primary election, pursuant to a resolution adopted by 
the state convention restricting membership in a party to 
white persons, cannot be deemed state action inhibited by 
the Fourteenth and Fifteenth Amendments,”  and also: 
“ That in Texas nomination by the Democratic party is 
equivalent to election, and exclusion from the primary 
virtually disfranchises the voter, does not, without more, 
make out a forbidden discrimination in this case.”  The 
Court also pointed out:

“ The argument is that as a Negro may not be denied 
a ballot at a general election on account of his race 
or color, if exclusion from the primary renders his 
vote at the general election insignificant and useless, 
the result is to deny him the suffrage altogether.



19

So to say is to confuse the privilege of membership 
in a party with the right to vote for one who is to 
hold a public office. With the former the state need 
have no concern, with the latter it is bound to con­
cern itself, for the general election is a function of 
the state government and discrimination by the state 
as respects participation by Negroes on account of 
their race or color is prohibited by the federal consti­
tution. ’ ’

The nest primary case to reach the Supreme Court was 
United States v. Classic, supra, involving the refusal to 
count the ballot of a voter in the Democratic Primary of 
Louisiana. The action involved a criminal prosecution 
under Sections 19 and 20 of the Criminal Code in that the 
acts of the defendants violated Article One of the Consti­
tution. In the Classic case the Supreme Court approached 
the problem by considering the relationship of the primary 
to government and concluded that the primary in Louisiana 
was within the provisions of Article One of the United 
States Constitution. The Court concluded that the act of 
refusing to count the vote of an elector in a primary was 
an interference with a right “ secured by the Constitution”  
saying:

“ Where the state law has made the primary an in­
tegral part of the procedure of choice, or where in 
fact the primary effectively controls the choice, the 
right of the elector to have his ballot counted in the 
primary, is likewise included in the right protected 
by Article I, Section 2. And this right of partici­
pation 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 machinery, whether the 
voter exercises his right at a party primary which 
invariably, sometimes or never determines the ulti­
mate choice of the representative.”  (313 U. S. 299, 
318.) (Italics ours.)



2 0

It should be noted that the two tests set forth so clearly 
in the Classie case are in the alternative. So that, under 
the Classic case, the plaintiff in this case is entitled to re­
cover where either “ the state law has made the primary 
an integral part of the procedure of choice, or where in 
fact the primary effectively controls the choice.”

The last primary case to be decided by the Supreme 
Court was Smith v. Allwright, supra, from Texas. The 
facts in the Smith case were essentially the same as in 
Grovey v. Townsend and there were no changes in the rele­
vant statutes of Texas. Following the reasoning in the 
Classic case in approaching the problem by considering the 
relationship of the primary to government rather than 
whether or not the Democratic party was a private volun­
tary organization, the Supreme Court not only held that 
the refusal to permit Negroes to vote in Democratic Pri­
maries of Texas was in violation of the United States Con­
stitution but also expressly overruled Grovey v. Townsend.

With the decision of Grovey v. Totvnsend expressly 
overruled there is now no decision of the Supreme Court 
of the United States that ever raises a question as to the 
full meaning of the alternative tests set forth in the Classic 
case.

B. Federal Courts have jurisdiction of this case.

Appellants in their brief contend that federal courts 
are without jurisdiction of this cause because no state action 
is involved and there is no action on part of appellants 
pursuant to state statute.

This contention is grounded in an erroneous conception 
of how the courts in the light of U. S. v. Classic, supra, now 
approach the problem raised by this suit. The question 
which this suit raises is : What is the fundamental nature



2 1

of the primary here in question in which appellee seek 
participation? If it is in fact the election, because in the 
circumstances of the case it effectively controls the choice 
in the general election, or because by state law it is made 
an integral part of the procedure of choice, then it is an 
election within the meaning of Article I, Sections 2 and 4, of 
the federal constitution. Once it is determined that it is an 
election within the meaning of these sections because of 
either of these circumstances, then the right of the people 
to participate in such an election becomes a right secured 
by the federal constitution, Article I, Sections 2 and 4, and 
the Seventeenth Amendment.

This right is secured against the actions of individuals 
as well as states. U. S. v. Classic, supra.

The jurisdiction of federal courts may, therefore, be 
invoked under subdivision 1 of Section 41 of Title 28 of 
the United States Code, this being an action at law aris­
ing under the Constitution and laws of the United States, 
viz., Sections 2 and 4 of Article I and the Seventeenth 
Amendment of said Constitution, and the laws of the United 
States, viz., Title 8, Sections 31 and 43 of the United States 
Code.

The jurisdiction of federal courts is also invoked under 
subdivision 11 of Section 41 of Title 28 of the U. S. Code, 
this being an action to enforce the right of a citizen of the 
United States to vote in the State of South Carolina.

This is also an action at law which arises under the 
Fourteenth and Fifteenth Amendments to the Federal Con­
stitution as authorized by Title 28, Section 41, subdivision 1. 
A cause of action arises here because of state action con­
trary to these provisions of the Federal Constitution since, 
despite the fact that all laws, including a constitutional 
provision, regulating primaries in South Carolina have



2 2

been repealed, the Democratic party in conducting the pri­
mary in 1946 was performing the same state function which 
it performed prior to the repeal of all these laws in 1944. 
It carries on and performs the function of choosing federal, 
state and other officers, and is the only place where the 
determination of selection of elected officers can be had. 
It is the only place where a citizen can exercise his right 
of suffrage where it will have any effect. The primary as 
conducted by appellants being a state function is therefore 
subject to the prohibitions of the Fourteenth and Fifteenth 
Amendments.

The affirmative action of South Carolina in repealing 
all state statutes regulating primary elections in order to 
permit the Democratic party to continue discriminating 
against qualified Negro electors solely on account of their 
race and color is clearly state action prohibited by the Fif­
teenth Amendment. The inaction on the part of the State 
of South Carolina in failing to protect Negro electors from 
the discrimination practised against them by the Demo­
cratic party in its primaries is also such state action as is 
condemned by the Fourteenth and Fifteenth Amendments 
to the Federal Constitution.11

The jurisdiction of federal courts is further invoked 
under subdivision 14 of Section 41 of Title 28 of the United 
States Code, this being an action at law authorized by law 
to be brought to redress the deprivation under color of 
law, statute, regulation, custom and usage of a state of 
rights, privileges and immunities secured by the Constitu­
tion and laws of the United States, viz., Section 31 and 43 
of Title 8 of the United States Code, wherein the matter 
in controversy exceeds, exclusive of interests and costs, the

11 N eg ro  Disenfranchisem ent— A  Challenge T o the Constitution, 47 
Col. Law Review, 76, 87 (1947).



23

sum of Three Thousand Dollars ($3,000). “ Custom, or 
usage, of any State”  referred to in subdivision 14 of Section 
41 of Title 28 was found by the Court below to be the con­
ducting of the primary by the Democratic party in the 
same manner and to the same end after 1944 as before.

The cases cited by appellants as controlling on the ques­
tion of jurisdiction fail in every instance to defeat the 
jurisdiction of the federal court in this case. On the con­
trary, they may be divided into two groups:

1. Those cases decided prior to the Classic and 
Allwright cases;12

2. Those cases recognizing that state action in­
cludes action of a character other than legislative 
enactments.13

It is not the contention of appellee that jurisdiction in 
this case must rest upon some positive statutory enactment 
by the State of South Carolina nor did the lower Court so 
find. It is, however, a foregone conclusion beyond the 
rebuttable stage in American jurisprudence that innumer­
able types of action by a state, other than legislative action 
may validly constitute state action within the meaning of 
the Fourteenth and Fifteenth Amendments to the United 
States Constitution.

Executive Action may be State Action. Sterling v. Con- 
stantine,14

12 U. S. v. Gradwell, 243 U. S. 476, 61 L. ed. 857 (1917) ; N ew ­
berry v. U. S., 256 U. S. 232, 65 L. ed. 913 (1921) ; Sm ith  v. B lack- 
well (C. C. A . 4th), 115 Fed. (2d) 186 (1940); Civil R ights Cases, 
109 U. S. 3, 27 L. ed. 835 (1883) ; R obinson  v. H olm an, 181 Ark. 428, 
26 S. W. (2d) 66 (1930) (cert, denied 282 U. S. 804, 75 L. ed. 722).

131/. 5'. v. Classic, supra ; Sm ith  v. A llw right, supra ; Chapman v. 
King, 154 Fed. (2d) 460 (cert, denied 60 Sup. Ct. 905, 90 L. ed. 
1025) (1946).

14 287 U. S. 378 (1932).



24

Administrative Action may be State Action. Raymond 
v. Chicago Union Traction Co.15

Judicial Action may be State Action. Powell v. Ala- 
bama.16 17

Any state officer acting- under color of state law although 
committing an act outside the scope of duty. Screws v. 
U. S .17 and Nixon v. Herndon, supra.

Jurisdiction is conferred where the state law has made 
the primary an integral part of the procedure of choice, 
or, where in fact the primary effectively controls the choice, 
as here, U. S. v. Classic, supra.

The question of jurisdiction in this type of case is clear 
from the opinion in Smith v. Allivright, supra, by Justice 
R eed, who states:

“ We are thus brought to an examination of the 
qualifications for Democratic primary electors in 
Texas to determine whether state action or private 
action has excluded Negroes from participation. 
Despite Texas ’ decision that exclusion is produced by 
private or party action, Bell v. Hill, supra, federal 
courts must for themselves appraise the facts leading 
to that conclusion. It is only by the performance of 
this obligation that a final and uniform interpreta­
tion can be given to the Constitution, ‘ the Supreme 
Law of the Land’ ”  (at p. 662).

While the Texas statutes were present in the Smith case, 
the Court certainly did not close the jurisdictional door on 
a situation where, “ This grant to the people of the oppor­
tunity for choice is not to be nullified by a state through

15 207 U. S. 20 (1907).
16287 U. S. 45 (1932).
17325 U. S. 91 (1945).



25

casting its electoral process in a form which permits a 
private organization to practice racial discrimination in 
the election. Constitutional rights would be of little value 
if they could be thus indirectly denied.”  (Italics ours), 
Smith v. Allwright, supra.

From this argument, only one conclusion can be deduced 
—the State of South Carolina cannot deliberately cast its 
electoral process in a form permitting an alleged private 
organization to perform an essential governmental func­
tion and at the same time to practice racial discrimination 
in the election that consistently determines who shall rep­
resent the State of South Carolina in the United States 
Government.

II
Repeal of primary statutes did not change the 

status of the Democratic Primary of South Carolina.
The electoral procedure in South Carolina is divided 

into three main steps: registration, primary and general 
election. The first and third of these steps are still cov­
ered by state law. (See: Art. II, Constitution of South 
Carolina.) The second step, the primary election, is pres­
ently free of statutory regulation. However, the Democratic 
Primary is still unquestionably an integral part of the pro­
cedure of choice and participation therein must he kept free 
of restrictions based on race or color if the right to vote as 
secured by the Constitution, is to be or have any real mean­
ing. The Democratic party has operated as a monopoly in 
South Carolina and in the past forty-seven or more years 
its candidates have won every election for governor, repre­
sentatives and senator.18

18 See Stipulations; see also Hesseltine, “ The South in American 
History” , at pages 537, 573-81, 599, 616. Also see Note, “ Negro 
Disenfranchisement— A  Challenge to the Constitution,” 47 Col. L. 
Rev. 76 (1947).



26

The importance of the primary has long been recognized, 
and many states including South Carolina in view of this 
have subjected these primaries to varying degrees of state 
control.19

From 1888 to 1915, the State of South Carolina main­
tained varying degrees of statutory control over primary 
elections. In 1915 the General Assembly of South Carolina 
enacted comprehensive election laws providing for full stat­
utory control of primary as well as general and special elec­
tions.20 Prior to April, 1944, statutes of South Carolina 
regulated the primary as an integral part of the procedure 
of choice of senators and representatives within the mean­
ing of Article I, section 2, of the United States Constitution 
and the Seventeenth Amendment thereto.

In 1941 the United States Supreme Court decided 
United States v. Classic (supra). Athough this case did not 
expressly overrule Grovey v. Townsend (supra) it was ob­
vious that the two decisions were in conflict and that the 
Classic case being the later decision would be controlling. 
On April 3, 1944, the Supreme Court of the United States 
in the case of Smith v. Allwright (supra) removed any 
doubt as to the applicability of the decision in the Classic

19 State v. M eharg, 287 S. W . 670, 672 (1926). One of the major 
reasons for the development of the primary election was that in “the 
South, where nomination by the dominant party meant election, it was 
obvious that the will of the electorate would not be expressed at all, 
unless it was expressed at the primary” . Charles Evans Hughes, 
“ The Fate of the Direct Primary,”  10 National Municipal Review, 
23, 24. See also: Hasbrouck, “ Party Government in the House of 
Representatives” (1927), 172, 176, 177: Merriam and Overacker, 
“ Primary Elections”  (1928), 267-269.

On the great decrease in the vote cast in the general election from 
that cast at the primary in the “ one-party” areas of the country, see 
George C. Stoney, “ Suffrage in the South,” 29 Survey Graphic 163, 
164 (1940).

20 See: Code of Laws of South Carolina, 1942.



27

case to cases where Negroes are denied the right to vote in 
a Democratic Primary which is an integral part of the elec­
tion machinery of a state. It was held that the right to 
participate in a primary could not be nullified by a state 
through casting its electoral process in a form which per­
mits a private organization to practice racial discrimination 
in the election.

Recognizing the applicability of such a decision to South 
Carolina, the Governor of that State, a member of the 
Democratic party of South Carolina, immediately called a 
special session of the General Assembly of that state to 
meet on April 14 , 1944 . The sole purpose of such special 
session was to take legislative steps intended to evade and 
circumvent the decision of the Supreme Court of the United 
States in the case of Smith v. Allwright, supra.

In his message to the General Assembly of South Caro­
lina called in special session, the Governor of South Caro­
lina stated: “ I regret that this ruling by the United States 
Supreme Court has forced this issue upon us but we must 
meet it like men” ; and: “ History has taught us that we 
must keep our white Democratic Primaries pure and un­
adulterated so that we might protect the welfare and honor 
of all the people of our state.”  The Governor called for 
the repeal of all statutes mentioning primary elections and 
in conclusion stated: “ If these statutes are repealed, in my 
opinion, we will have done everything within our power to 
guarantee white supremacy in our primaries of our state 
insofar as legislation is concerned. Should this prove in­
adequate, we South Carolinians will use the necessary meth­
ods to retain white supremacy in our primaries and to safe­
guard the homes and happiness of our people. White su­
premacy will be maintained in our primaries. Let the chips 
fall where they m ay! ’ ’



28

After a session of less than a week the General As­
sembly of South Carolina, composed solely of members of 
the Democratic party of South Carolina, on April 20, 1944, 
passed one hundred and fifty (150) acts repealing all exist­
ing laws which contained any reference, directly or indi­
rectly, to primary elections within the state, including an 
act calling for the repeal of the only constitutional provi­
sion mentioning primary elections and set in motion the 
machinery to repeal that provision. Subsequently the Con­
stitution was so amended.

In 1943 the General Assembly of South Carolina re­
pealed several of the statutes relating to the conduct of 
primary elections to become effective June 1, 1944. (Acts 
of 1943, No. 63, p. 85.) The General Assembly of 1944 at 
the Special Session repealed all of the laws relating to the 
conduct of primary elections including those mentioned 
above to become effective upon approval of the Governor. 
These bills were approved on April 20, 1944.

There can be no doubt of the intention of the Governor 
and General Assembly of South Carolina. When the 1943 
General Assembly repealed certain of the primary statutes 
the case of Smith v. Allwright was pending. Assuming that 
the case would be decided during the October, 1943 term 
of the Supreme Court the effective date of the statute was 
moved up to July 1, 1944. So that, when the case was de­
cided in April 3, 1944 in such manner as to be a precedent 
applicable to South Carolina, all of the primary laws in­
cluding those in the 1943 Act were repealed to take effect 
immediately upon approval by the Governor. It is stipu­
lated and agreed that all of the members of the General As­
sembly and Governor were Democrats. All possible doubt 
of the intention of the Governor and General Assembly is 
removed upon reading the Governor’s Call of the Special 
Session and his message to the General Assembly.



29

There has been no material change in the Democratic 
party or the Democratic Primary of South Carolina since 
the repeal of the statutes. This is clear from the Stipula­
tions (A-33-39) and the testimony of Senator Baskin (A- 
51-77).

The party operated under rules prior to 1944 which were 
changed every two years and now operates under rules 
adopted in the same manner. After the 1944 repeal of 
the statutes the rules were changed to remove all reference 
to statutes and to change the words “ primary election”  to 
“ prim ary”  and “ nominating primary” .

However there has been no fundamental change in the 
method by which the Democratic Primaries have been con­
ducted in South Carolina. Judge W a r in g  in his opinion 
stated:

“ From the stipulations and the oral testimony 
and from examination of the repealed statutes and 
of the rules of the State Democratic Party which 
were put in evidence, we may briefly summarize the 
organization and methods of the Democratic Party 
in this State, both before and after 1944. Prior to 
1944, as shown by the statutes set forth in the Code 
of South Carolina and from an examination of the 
rules of the party published in 1942, the general 
setup, organization and procedure of the Party may 
be generally stated as follows: In the year 1942 (a 
year wherein certain primaries and general elections 
were to be held) organizations known as clubs in 
various wards (in cities), voting precincts, or other 
subdivisions, met at a time and places designated by 
the State organization. The members of these clubs 
were the persons who had enrolled to vote in the 
primary held two years before and whose names 
were on the books of the clubs, which were the voting 
lists used at such preceding primary. At these club 
meetings, officers were elected, including a County



30

Executive Committeeman from each club and also 
delegates to a County Convention. Shortly there­
after a County Convention was held in each County 
in the State, where the delegates elected its Con­
vention officers, including a member of the State 
Executive Committee and delegates to the State Con­
vention. And shortly thereafter a State Convention 
was held, at which these delegates from the County 
organizations assembled, elected their presiding offi­
cers and a Chairman of the State Executive Com­
mittee (composed of one committeeman from each 
County), and made rules and regulations for the 
conduct of the Party and of primaries. These rules 
and regulations were in conformity with the statute 
law of the State. The State Executive Committee 
was the governing body and the Chairman its chief 
official. The Convention repealed all previous rules 
and regulations and adopted a new set, these being 
however substantially the same as before with some 
slight amendments and changes, and of course new 
provisions for dates of primaries and other details.

In 1944 substantially the same process was gone 
through, although at that time and before the State 
Convention assembled, the statutes had been repealed 
by action of the General Assembly, heretofore set 
out. The State Convention that year adopted a com­
plete new set of rules and regulations, these however 
embodying practically all of the provisions of the 
repealed statutes. Some minor changes were made 
but these amounted to very little more than the usual 
change of procedure in detail from year to year. The 
parties to this cause have filed schedules setting forth 
the detailed changes, the one side attempting to show 
that the changes were of form and not of matter, 
and the other attempting to point out material 
changes. One of the main items of change was to 
strike out the word ‘ election’ throughout the rules. 
It was undoubtedly the intention of the parties in 
charge of revamping the Democratic Party to elimi­
nate the word ‘ election’ wherever it occurred in the



31

rules, substituting instead the word ‘ primary’ or 
‘ nominating primary.’ In 1944 the State Convention 
also elected delegates to the National Democratic 
Convention as it had always done in years of Presi­
dential Elections.

In 1946 substantially the same procedure was used 
in the organization of the Democratic party and an­
other set of rules adopted which were substantially 
the same as the 1944 rules, excepting that the voting 
age was lowered to 18 and party officials were allowed 
the option of using voting machines, and the rules 
relative to absentee voting were simplified (absentee 
voting had heretofore been controlled by certain 
statutes repealed in 1944. (See C ode o f  S o u t h  
C a r o l in a , S e c t io n s  2406-2416.) It is pointed out 
that the word ‘ election’, although claimed to have 
been entirely eliminated, was still used in Rules 25, 
27, 32 and 48”  (A-93-95).

Appellants certainly will not deny that it is the function 
of the state to conduct elections for state and federal officers. 
The Democratic party is in reality carrying on this function 
for the state. This fact receives its emphasis from the 
revelation that the general election in South Carolina has 
become a mere formality as the following excerpt from the 
Stipulation in this cause indicates:

“ In the Democratic Primary of August, 1946, 
290,223 votes were cast for the office of Governor. 
In the Democratic Primary held on September 3, 
1946, 253,589 votes were cast for same office. In the 
general election of November 12, 1946, there were 
26,326 votes cast for the office of Governor.”

Prior to 1944, the actual machinery of the Democratic 
Primaries in South Carolina was controlled by rules promul­
gated by the Democratic party. Since 1944, primary elec­
tions in South Carolina have been conducted pursuant to



32

rules of the Democratic party (A-75). The actual conduct 
of the primary election has not changed. Voters in the 
primary elections are required to take oaths almost identical 
with the oath prior to 1944. The testimony of Senator 
Baskin reveals that with the exception of the repealed 
statutes, the Democratic Primary is operating in essen­
tially the same manner as before except that voting age 
was lowered to eighteen; voting machines were established; 
and results of the primaries are given to party officials 
rather than county officers. The question of whether ex­
penses for primaries are paid by state or party is immate­
rial since the decision in Smith v. Allwright, supra.

The true position of the primary in the “ procedure of 
choice”  of federal and state officers in South Carolina is 
made even clearer by a consideration of the method of 
holding general elections. In this case we are considering 
the right of the plaintiff and other Negro electors to exer­
cise a meaningful choice of elected officials. They can now 
vote only in the general election. There are no general bal­
lots. They must either use the ballots printed by one of the 
parties or write out their own. With this procedure it is 
even more difficult to exercise a meaningful choice than in 
either Louisiana or Texas. The Court can most certainly 
take judicial notice of the general futility of write-in cam­
paigns on a state-wide basis. Political parties, party control 
of its voters, and the cost of political campaigns are reali­
ties which cannot he ignored.

We, therefore, submit that the Democratic Primary in 
South Carolina meets both of the alternative tests recog­
nized in the Classic case. The Chapman case, relied on by 
defendants, does not limit in any way the decision in the 
Classic case. In the first place it is impossible to reconcile 
some of the language in the opinion with the actual deci­



33

sion. In addition the Chapman case was based on Sections 
31 and 43 of Title 8 and the Fifteenth Amendment and did 
not embrace Article One of the United States Constitution 
as in the Classic case.

Conclusion

Our Constitution is a living instrument. The rights 
protected have never been fully enumerated. Basic civil 
rights grounded in the Constitution cannot be revoked by 
technicalities. In South Carolina the Democratic party has 
for years controlled the voters, the legislature, the State, 
and its elected representatives in Congress. It is impos­
sible to discern the line between the Democratic party and 
the State of South Carolina. The repeal of the primary 
statutes was a deliberate attempt to evade the decision of 
the United States Supreme Court and we respectfully 
submit that it is the duty of this Court to give our Con­
stitution the meaning recognized by that Court. Negroes 
of the South have been denied the right to vote by one 
subterfuge after another. Discriminatory registration stat­
utes were changed and changed and there was law suit 
after law suit until the United States Supreme Court in Lane 
v. Wilson, supra, held that the Fifteenth Amendment “ nulli­
fies sophisticated as well as simple-minded modes of dis­
crimination.”  The discriminatory primary statutes were 
changed and changed and there was law suit after law suit 
until the Classic case and then Smith v. Allwright. After 
these decisions it seemed that the right of qualified electors 
to choose their representatives was finally settled. How­
ever, South Carolina seeks to continue its discrimination 
against Negro voters by repealing the statutes and continu­
ing to operate in the same manner as before. This delib­
erate effort to circumvent the decisions of the United States



34

Supreme Court is another challenge to our ability as a 
nation to protect the rights of all of our citizens in practice 
rather than in theory.

W h e r e f o r e , it is respectfully submitted that the judg­
ment of the United States District Court should be affirmed.

H ar o ld  R . B o u l w a r e ,

1109% Washington Street, 
Columbia, South Carolina,

E d w a r d  R. D u d l e y ,

20 West 40th Street,
New York 18, New York,

T h u r g o o d  M a r s h a l l ,

20 West 40th Street,
New York 18, New York,

Attorneys for Appellee.







ARGUMENT FOR APPELLANTS

United States Circuit Court of Appeals
FOURTH CIRCUIT

GEORGE ELMORE, o n  B e h a l f  of  H im s e l f  a n d  O t h e r s  

S im il a r l y  S it u a t e d , P l a i n t i f f ,

versus

CLAY RICE ET AL., D e f e n d a n t s
'  / /

CHRISTIE BENET,

W. P. BASKIN,

CHARLES B. ELLIOTT, 

IRVINE F. BELSER,

P. H. McEACHIN,

J. PERRIN ANDERSON, 

W. BRANTLEY HARVEY, 

EDGAR A. BROWN, 

YANCEY A. McLEOD, 

Attorneys for Appellants.

The R. L. Bryan Company. Legal Printers. Columbia, S. C.

OCT 13 1947

CLAUDE M. DEAN
CLERK





SYNOPSIS AND INDEX

Introductory Sum m ary....................................................... 1

Statement as to F a c ts ......................................................... 4

Statement of Questions....................................................... 10

Argument ...................   11

I

Smith v. Allwright and Classic Cases Depended 
Upon Statutory Requirement and Regulation of 
Primaries ....................................................................... 11

II

Federal Courts Without Jurisdiction Because No 
State Action Involved and Defendants Not Acting 
Under Any State Statute .........................................  24

III

Democratic Party of South Carolina a Private Po­
litical Organization With Unrestricted Choice of 
Membershp ...................................................................  35

Summary and Conclusion .................................................  44

P age

(i)





Catletts v. United States, 132 Fed. (2d), 902, 907 ..........  33

Chapman v. King, 154 Fed. (2d), 460 (Cert. Denied),
66 Sup. Ct., 905, 90 L. Ed., 1025, April 1,1946 . . .  .2,

3, 12, 20, 25, 32, 35, 36, 39, 44, 45

Civil Rights Cases, 1883, 3 Sup. Ct., 18, 109 U. S., 17,
27 L. Ed., 835 ..................................... 2, 3, 25, 26, 36, 45

Classic Case, 313 U. S., 299, 341, 85 L. Ed., 1368
2, 3, 4, 12, 25, 31, 37, 45

Ex Parte Virginia, 100 U. S., 339, 346, 25 L. Ed., 676 . . .  18

Gaines v. Canada, 305 U. S., 337 .....................................  33

Gardner v. Blackwell, 167 S. C., 3 1 3 ............................. 6, 42

Gradwell Case, 243 U. S., 487, 61 L. Ed., 865
2, 12, 19, 25, 36, 37

Grigsby v. Harris (D. C.), 27 F. ( 2 d ) .............................. 37

Guinn v. United States, 238 U. S., 347, 362, 59 L. Ed., 
1340,1346, 35 S. Ct., 926, L. R. A., 1916-A, 1124 . . . .  15

Hague v. C. I. 0., 307 U. S., 496, 83 L. Ed., 1423 .. .3,18, 25

Home Teleph. & Teleg. Co. v. Los Angeles, 227 U. S., 
278, 287 et seq., 57 L. Ed., 510, 515, 33 S. Ct., 312

18, 31
Kerr v. Enoch Pratt Free Library, C. C. A., 4, 149 Fed.

T A B L E  OF C A S E S

P age

(2d), 2 1 2 .........................................................................  33

Marsh v. Alabama, 326 U. S., 501, 90 L. Ed., 275 ............ 33

McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S., 151... 33

[hi ]



Newberry Case, 256 U. S., 232, 65 L. Ed., 913
2, 3, 12, 19, 25, 36, 37

Nixon y. Herndon, 273 U. S., 487, 61 L. Ed., 865
2, 12, 16, 34

Robinson v. Holman, 181 Ark., 428, 26 S. W. (2d), 66, 
Arkansas Sup. Ct., March 24, 1930 (Cert. Denied 
282 U. S., 804, 75 L. Ed., 7 2 2 )... .3, 25, 29, 34, 35, 36, 37

Robinson et al. v. Memphis & Charleston R. R. Co., 109 
U. S., Page 3, 27 L. Ed., 836 .....................................  38

Screws v. U. S., 325 U. S., 91, 89 L. Ed., 1495 .............  30

Smith v. Allwright, 321 U. S., 647, 88 L. Ed., 987
2, 4, 12, 13, 16, 31, 34, 37, 41, 42, 43

Smith v. Blackwell, C. C. A., 4, Oct. 21, 1940, 115 Fed., 
1 8 6 ................................................................................ 6, 24

Smith v. Blackwell, (D. C. E. D., S. C.), Sept. 17, 1940,
34 Fed. Supp., 989 ......................................... 3, 24, 25

Truax v. Corrigan, 257 U. S., 312, 66 L. Ed., 254 ......... 33

U. S. v. Nichols, 109 U. S., 3, 27 L. Ed., 836 ................. 38

U. S. v. Singleton, 109 U. S., 3, 27 L. Ed., 836 ............. 38

Walls v. Brundidge, 109 Ark., 250, 160 S. W., 230, Ann. 
Cas., 1915-C ..................................................................37

Westminster School District of Orange County et al. v. 
Mendez et al., 161 Fed. (2d), 775-784 ....................  30

T A B L E  O F C A S E S — (C ontinued)

Page

[iv]



arg um en t  for  a ppellants

United States Circuit Court of Appeals
FOURTH CIRCUIT

GEORGE ELMORE, o n  B e h a l f  of  H im s e l f  a n d  O t h e r s

This in an appeal from Judge W aring’s order dated 
July 12, 1947, holding that all qualified negro electors are 
entitled to vote in the Democratic primaries in South Caro­
lina regardless of the rules of the Democratic party, and 
notwithstanding the fact that there are no South Carolina 
statutes regulating the said primaries.

The Democratic party in South Carolina had arisen 
as a private, voluntary political association, and in 1943 
and 1944 all the statutes, which had from time to time been 
enacted to regulate the primary were repealed.

The laws referred to as having been repealed included 
a penalty statute, providing for a fine or imprisonment for 
violation of the statutory laws regulating the primary, and 
thereafter the party primaries were wholly unregulated by

S i m il a r l y  S it u a t e d , P l a i n t i f f , ^

versus

CLAY RICE ET AL., D e f e n d a n t s7 /

INTRODUCTORY SUMMARY



2 Elmore et al., Plaintiff, v. Rice et at, Defendants

statute and violation of the rules thereof punishable only 
by expulsion from the party.

It is submitted that Judge W aring’s order should be 
reversed because:

I

The Smith v. Alhvright and the Classic cases, upon 
which the Court below pitched its decision, 'depended upon 
statutory requirement and regulation of the primaries and 
inasmuch, as in the case at bar, there was no statutory re­
quirement or regulation of the primaries, the said cases 
are inapplicable and the decision should have been in favor 
of the defendants.

The Classic Case, 313 U. S., 299, 341, 85 L. Ed., 
1368;

Smith v. Alhvright, 321 U. S., 647, 88 L. Ed., 987;
Chapman v. King, 154 Fed. (2d), Page 460 (Cert, 

Denied, 66 Sup. Ct., 905, 90 L. Ed., 1025, April 
1, 1946);

Nixon v. Herndon, 273 U. S., 536, 71 L. Ed., 759;
The Gradwell Case, 243 TJ. S., 487, 61 L. Ed., 865;
The Newberry Case, 256 U. S., 232, 65 L. Ed., 913,

II

The Federal Courts are without jurisdiction of this 
suit because no state action was involved and defendants 
were not acting under any state statute or as state officials 
but, at the times complained of, were acting solely in their 
capacity as members of the Democratic party.

The Newberry Case, 256 U. S., 232, 65 L. Ed., 913;
The Gradwell Case, 243 U. S., 487, 61 L. Ed., 865;
The Civil Rights Cases, 1883, 3 Sup. Ct,, page 18, 

109 U. S., Page 17, 27 L. Ed., Page 835;



Elmore et al, Plaintiff, v. Rice et al., Defendants 3

Robinson v. Holman, 181 Ark., 428, 26 S. W. (2d), 
66, Arkansas Sup. Ct., March 24, 1930 (Cert, 
denied, 282 U. S., 804, 75 L. Ed., 722);

Smith v. Blackwell, C. C. A., 4, Oct. 21, 1940, 115 
Fed. (2d), 186;

Hague v. C. I. 0., 307 U. S., 496, 83 L. Ed., 1423;

See also:

Smith v. Allwright, 321 TJ. S., 647, 88 L. Ed., 987;
Smith v. Blackwell, (D. C. E. D., S. C., Sept. 17, 

1940), 34 Fed. Supp., 989;
Chapman v. King, 154 Fed. (2d), Page 460 (Cert. 

Denied, 66 Sup. Ct., 905, 90 L. Ed., 1025, April 1, 
1946);

The Classic Case, 256 U. S., 299, 341, 85 L. Ed., 
1368.

Ill

The Democratic party of South Carolina is a voluntary 
political association, with unrestricted choice of mem­
bership.

Robinson v. Holman, 181 Ark., 428, 26 S. W. (2d), 
66, Arkansas Sup. Ct., March 24, 1930. Cert. De­
nied in 282 U. S., 804, 75 L. Ed., 722;

Chapman v. King, 154 Fed. (2d), Page 460 (Cert. 
Denied, 66 Sup. Ct., 905, 90 L. Ed., 1025, April 
1, 1946);

The Gradwell Case, 243 U. S., 487, 61 L. Ed., 865;
The Newberry Case, 256 U. S., 232, 65 L. Ed., 913;
The Civil Rights Cases, 1883, 3 Sup. Ct., Page 18, 

109 U. S., Page 17, 27 L. Ed., Page 835.

‘ ‘ The party takes its character as a state agency from 
the duties imposed upon it by state statutes # * * ”  as 
was stated by the Court in the Smith v. Allwright case, and



inasmuch as there were no statutes in this case regulating 
the Democratic party, the said party was and is a private, 
political association.

STATEMENT AS TO THE FACTS

This is an appeal from Judge W aring’s Order dated 
July 12, 1947, holding that the plaintiff and all other quali­
fied negro electors of the State of South Carolina are en­
titled to vote in the Democratic primaries in the State of 
South Carolina.

The complaint had alleged, and it is conceded, that the 
plaintiff, a qualified negro elector under the Constitution of 
South Carolina, was denied the right to vote in the 1946 
Democratic primary in Richland County because of the fact 
that he was a negro and not qualified under the rules of the 
Democratic party.

Judge W aring’s order, however, held that the plain­
tiff and other negro electors qualified under the Constitu­
tion were entitled to vote in Democratic primaries regard­
less of the rules of the Democratic party, and regardless of 
the fact that the primary was wholly unregulated by State 
statute.

There are no South Carolina statutes or other legal pro­
visions, such as existed in the Smith v. Allwriglit case, (321 
U. S., 647, 88 L. Ed., 987), and in the Classic Case (256 
U. S., 299, 341, 85 L. Ed., 1368), requiring the holding of 
primaries and that candidates in the general election be 
nominated in such primaries.

None of the defendants in this case about whose action 
complaint is made, are officials of the State of South Caro­
lina. Their actions were not, and were not alleged to be, 
done pursuant to any statutory provisions of the State of

4 Elmore et al., Plaintiff, v. R ice et al., Defendants



Elmore et al., Plaintiff, v. Rice et al., Defendants 5

South Carolina. The State of South Carolina pays no part 
of the expenses of the Democratic party or of holding the 
primary involved in this case. Nor are the Democratic pri­
mary nominations held on public or State property.

Historically, the Democratic party, and Democratic 
primaries, originated as voluntary and spontaneous insti­
tutions in the State of South Carolina as a means of its 
citizens expressing their preference for nominees in the 
general election. The first primaries were conducted by 
communities and counties. The first statutory regulation of 
the primaries in this State was by the act of 1888. (See 
statutes of South Carolina, Volume XX, page 10.)

The Democratic party plan of nominating candidates for election 
to office in South Carolina is an evolution from the Democratic party 
clubs that were spontaneously, voluntarily and extralegally organized 
in South Carolina between 1868 and 1876.

These clubs declared who was eligible to belong to them and each 
club fixed the area within which those eligible to join must live. Several 
months prior to an election the officers of the clubs called meetings atj 
which club officers were elected and delegates to a county convention! 
were selected in number proportionate to the number of members of? 
the club, say one delegate to every fifty (50) members.

The County Conventions selected delegates to a State Convention, 
proportior.ate to the number of members of the General Assembly from I 
the county.

The County Conventions nominated candidates to run in the gen­
eral election for county offices and the State convention nominated candi­
dates to run for State offices.

In 1884 some of the counties in the upper part of the State adopted 
the plan of having the membership of each club vote direct for nomina­
tions of candidates for county offices. The club votes were sent to the 
County Executive Committee and that committee declared the result 
and placed the names of the candidates so nominated on the Democratic 
ticket to be voted in the general election.

Other countries adopted the primary plan in 1886 and 1888 and by 
1890 almost all, if  not all, of the counties had adopted that plan of nom­
inating candidates for county offices.

In 1892 delegates to the State Convention were selected directly 
by the voters in the clubs instead of by the County Conventions. In 1894 
candidates for nomination for seats in the General Assembly declared 
who they would vote for in the General Assembly for United States 
Senate in case they were nominated in the county primaries and elected 
in the general election.

In 1896 the first general primary in the history of the State was 
held, wherein all candidates of the Democratic party for county, district



and State offices were nominated. There was no supervision by the 
State government of any of these plans of nominating the candidates 
of the party and the State Democratic Executive Committee was the 
supreme authority in the party. Every candidate took a pledge upon 
entering a race to abide by the result of the primary, and when the 
Executive Committee declared a result of any appeal to a court was 
a violation of that pledge.

Thereafter, and down to 1943 from time to time, var­
ious statutes were passed regulating the holding of pri­
maries. But there was never any statute in South Caro­
lina requiring the holding of primaries or that candidates 
in the general election be nominated in any such primaries, 
and at all tones in the history of this State it has been per­
fectly permissible for any person to be a candidate in a gen­
eral election without having been nominated in any pri­
mary. (See particularly Gardner v. Blackwell, 167 S. C., 
313; Smith v. Blackwell, 115 Fed. (2d), 186 (C. C. A. 4th, 
1940)).

In 1943 all the major statutes regulating the holding 
of primaries in South Carolina were repealed by act of 
the legislature and in 1944 all of the remaining statutes 
regulating primaries were repealed. At the time complained 
of in the complaint herein, in the 1946 primary, there were 
no statutes of any sort whatsoever regulating the Demo­
cratic primary, and the Democratic party and its primaries 
were wholly subject to the rules and regulations of the 
party and its members.

The party operates under and is governed by its con­
stitution and rules. These provide for the organization of 
clubs in various communities and for the holding of county- 
wide and state-wide conventions.

After the repeal of the statutory provisions above men­
tioned, the rules of the party were, and are now, enforce­
able only by expulsion from the party. Formerly the stat­
utory provisions were enforceable by a fine of $500.00, or

6 Elmore et al., Plaintiff, v. Rice et al., Defendants



imprisonment, or as for perjury. The rules of the party, 
duly adopted, require that members must be Avhite Demo­
crats and must take an oath to support the nominees of the 
party. The rules, as adopted at the 1946 convention, permit 
eighteen (18) year-olds to be members of the party and to 
vote in the Democratic primary.

The statutory and constitutional provisions of the 
State of South Carolina, however, require that electors in 
the general election be at least twenty-one (21) years 
of age.

There are no statutory or constitutional provisions in 
the State of South Carolina in any wise restricting the right 
of negroes to vote in general elections. On the contrary, 
the right of all the citizens of the State is expressly pro­
tected by constitutional provisions. In the Constitution of 
1895, it is expressly provided as follow s:

“ Article 1, Section 9, Suffrage: ‘ The right of suf­
frage, as regulated in this Constitution, shall be pro­
tected by law regulating elections and prohibiting, un­
der adequate penalties, all undue influences from 
power, bribery, tumult or improper conduct. ’

“ Article 1, Section 10: ‘ All elections shall be free 
and open, and every inhabitant of this State possessing 
the qualifications provided for in this Constitution shall 
have equal right to elect officers and be elected to fill 
public offices’. ”  (Page 992.)

In many counties in the State of South Carolina the 
negroes far outnumber the whites, so that it is perfectly 
possible in such counties for the negroes to elect their can­
didate in the general election and defeat the candidate of 
the Democratic party.

There are no legal requirements of any sort that any­
one, to be eligible in the general elections, must have been

Elmore et al., Plaintiff, v. Rice et al., Defendants 7



previously nominated in a primary, Democratic, Repub­
lican, or otherwise.

There is no obligation or authority vested by law upon 
any officials of the State of South Carolina or in any Demo­
cratic, Republican or other party or in any of the defend­
ants to furnish ballots to the plaintiff or to any other per­
sons for voting in any nominating primary or in any gen­
eral election. At the time of the 1946 nominating primary, 
each party furnished its own ballots for use both in its 
primary and in the general election. This applies equally 
to the Republican party, the regular Democratic party, the 
Jeffersonian Democrats, Prohibitionists, Progressive Dem­
ocrats, or others.

In fact the State of South Carolina has no share what­
soever in the control or regulation of the Democratic party 
or of any other political party in the State of South Caro­
lina and since 1944 has exercised no control or regulation 
over same.

In no sense is the Democratic primary an essential 
part of the electoral process in the State of South Carolina.

8 E l m o r e  et al., P l a i n t i f f , v. E ic e  et al., D e f e n d a n t s

There is in reality no dispute as to the facts involved 
in this case. In fact, the parties to the litigation had agreed 
upon a stipulation containing all the relevant facts. Judge 
Waring, however, apparently not being satisfied with the 
facts as agreed upon by the parties, called the Chairman 
of the Democratic Party to the witness stand and developed 
some additional details not previously covered by the stip­
ulation. The case, however, really turns wholly upon a 
proper interpretation of the admitted facts.

The Court below, in finding in favor of the plaintiff, 
pitched his decision almost entirely upon the Classic Case



and the Smith-Allwright Case above mentioned. Clearly, 
however, the Court misread those decisions and overlooked 
the fact that in both those cases there were statutes in­
volved which required the holding of a primary and limited 
the candidates in the general election in effect to the nom­
inees of such primary.

In his opinion Judge Waring expressly recognized and 
held passim: “ that there is now no statutory control either 
civil or criminal”  of the Democratic primary and that the 
Democratic party “ is no longer governed by State stat­
utes” , and further, “ that there is now no law in South 
Carolina, in its Constitution or on its statute books, gov­
erning primaries ’ ’.

It is believed that the Court’s basic error in this case 
consisted in (1) his holding in effect that the Democratic 
primary could be an integral part of the election laws of 
the State without being made so by statute; and, (2) in 
disregarding the effect of the repeal by the 1943 and 1944 
Legislatures of all the statutes governing primaries in this 
State, and in holding that the Democratic party was the 
same as before the repeal.

The Court below seems also to have been influenced by 
a speech made by President Truman, as reported in the 
newspapers, excerpts from which were quoted in the 
Court’s opinion. The Court below, in its opinion, also made 
the remark: “ It is time for South Carolina to rejoin the 
Union” . Such language, it is submitted, might be appro­
priate in a political essay but is surprising in a judicial^ 
opinion.

The same observation applies to the Court’s remark 
(Page 17): “ I cannot see where the skies will fall if South 
Carolina is put in the same class with these and other 
States” .

E l m o r e  et al, P l a i n t i f f , v. R ic e  et aL, D e f e n d a n t s  9



10 Elmore et al. , Plaintiff, v. Rice et a l , Defendants 

STATEMENT OF QUESTIONS

The principal questions involved in this appeal are:

1
(Points 6, 11, 14, 15, 18, 27)

That under the doctrine established by all the cases, 
including the Classic Case and the Smith-Allivright Case, 
state primaries are subject to federal control and jurisdic­
tion only where, and if, such primaries are required and 
regulated by state statutes as a part of the electoral process 
and the candidates in the general election in effect limited 
to the nominees of such primaries, and only if the state 
puts its power behind the party?

I 2
(Points 1, 2, 3, 7, 9, 10, 13, 14, 19, 20, 28)

That the Federal Courts are wholly without jurisdic­
tion of this controversy for the reason that there was no 
state action involved, the actions of the defendants com­
plained of being wholly the result of their actions as pri­
vate individuals and not as officials of the State of South 
Carolina and not acting pursuant to any state statutes?

3
(Points 4, 5, 6, 8, 12, 16, 17, 18, 21, 22, 23, 25, 29) 

That the defendants were wholly within their rights 
in excluding the plaintiff and other negroes from member­
ship in the Democratic party and from voting in the Dem­
ocratic primaries, under the universally established prin­
ciple that a private, voluntary association has a complete 
and unrestricted delectus personarum; and that such rights 
are protected by the traditional American rights to life, 
liberty and the pursuit of happiness and freedom of as­
sembly guaranteed by the Constitution of the United 
States.



ARGUMENT

It will hardly be denied that any two or three citizens 
of the State of South Carolina would have the right to go 
into the home of one of them and there after mutual con­
sultation express their opinion, their preference, as to the 
candidates in any forthcoming general election. On the 
same principle, it is submitted, this right must be accorded 
to several hundred such citizens, to several thousand, or to 
several hundred thousand. The principle involved is pre­
cisely the same. When the question is fully analyzed and 
considered, it will be seen that this whole case resolves and 
reduces itself to this simple proposition.

It is only where such primary is required by statute 
and the candidates in the general election limited to the 
nominees in such a primary that the question of the right 
to vote under the Federal Constitution is in any sense in­
volved. In such a case, of course, it is obvious, and readily 
conceded, that logically the right to vote in such a primary 
would be equally protected with the right to vote in the 
general election.

This case is to be distinguished from those cases where 
state governments have by statutes made the Democratic 
party or the Democratic party primary an essential part 
of the electoral process so that it becomes necessary for 
one to be nominated in such primary before being eligible 
to be a candidate in the general election for members of 
United States Congress and Senators.

I

Smith v. Allwright and Classic Cases Depended Upon 
Statutory Requirement and Regulation of Primaries

“ The party takes its character as a state agency 
from the duties imposed upon it by state statutes;

Elmore et al, Plaintiff, v. Rice et aL, Defendants 11



12 Elmoke et al., Plaintiff, v. Rice et al., Defendants

* * * it is state action which compels” . (Points 6, 
11, 14, 15, 18, 27.)

Smith v. Allwright, 88 L. Ed., 997.

The Classic case “ depended too on the determina­
tion that under the Louisiana Statutes the primary 
was a part of the procedure for choice of federal offi­
cials.”

Smith v. Allwright, 88 L. Ed., 995.

Under the doctrine established by all the cases, includ­
ing the Classic Case and the Smith-Allwright Case, party 
primaries are subject to federal control and jurisdiction 
under the federal constitution only where, and if, such pri­
maries are required by state statutes as a part of the elec­
toral process, and the candidates in the general election 
limited to the nominees of such primaries, and if the state 
puts its power behind the party.

The Classic Case, 313 U. S., 299, 341, 85 L. Ed, 
1368;

Smith v. Allivright, 321 U. S., 647, 88 L. Ed., 987;
Chapman v. King, 154 Fed. (2d), Page 460 (Cert. 

Denied, 66 Sup. Ct., 905, 90 L. Ed., 1025, April 
1, 1946);

Nixon v. Herndon, 273 U. S., 536, 71 L. Ed., 759;
The Gradivell Case, 243 U. S., 487, 61 L. Ed., 865;
The Newberry Case, 256 U. S., 232, 65 L. Ed., 913.

The Gradwell Case and the Newberry Case above cited, 
both held in effect that primaries were not subject to fed­
eral control and that there was no constitutional question 
of the right to vote involved in such primaries.

The Smith v. Allwright Case, and like cases, are to be 
distinguished from the case at bar in that in all those cases 
the Democratic primary was by statute made an essential



part of the statutory electoral process for the election of 
public officials, including United States Congressmen and 
Senators, so that denial of the right to vote in the primary 
was in fact a denial of the right to vote in the general elec­
tion. In fact all those cases, ivhen properly construed, show 
that in the case at bar where the Democratic primary is 
wholly unregulated by statute and where any candidate 
whether nominated in the Democratic primary or not has 
an equal right to enter the general election, plaintiff has 
not irf this case been deprived of any constitutional right.

Smith-Allwright Decision Depended Upon Statutory 
Control of Primary

It is submitted, however, that the Court below has 
completely missed the real point of those cases.

We answer the argument based on those two cases by 
calling the attention of this Honorable Court to the deter­
minative facts and the language of the Court itself in the 
cases themselves, and submit that the cases properly in­
terpreted are authority for us in the case at bar.

The report of the Smith-Allwright Case contains, in 
88 L. Ed., Page 991, an abstract of the statutory provisions 
of the State of Texas governing the primary. These show 
that the holding of the primary was regulated by statute in 
almost every detail. In particular, and as determinative 
provisions, the party was required' by 'Statute to hold the 
primary and the candidates for office were in effect required 
to be nominated at a primary election. There were in addi­
tion many other statutory requirements regulating the pri­
mary.

The primary was to be held by the qualified voters of 
the whole county. Also, there was statutory provision for 
a party convention. Statutes provided for the assessment

Elmore et aL, Plaintiff, v . Rice et al., Defendants 13



of candidates to pay the expenses of a primary. Nomina­
tions were to be made by the qualified voters of the party. 
Statutes also provided a primary test and pledge. County 
tax collectors were required to supply lists of qualified 
voters. Upon certification by the County Committee, the 
name of the nominee was to be placed on the official ballot. 
The official ballot was required to contain the name of the 
nominees of the respective parties and the names of the 
nominees of a party casting more than 100,000 votes at the 
last preceding general election may not be printed on the 
ballot unless they were chosen at a primary election. This 
distinction was repeatedly and emphatically emphasized by 
the Court in its opinion.

“ Primary elections” , said the Court, “ are con­
ducted by the party under state statutory authority. 
The county executive committee selects precinct elec­
tion officials, and the county, district or state executive 
committees, respectively, canvass the returns. These 
party committees or the state convention certify 
the party’s candidates to the appropriate officers for 
inclusion on the official ballot for the general election. 
No name which has not been so certified may appear 
upon the ballot for the general election as a candidate 
of a political party. No other name may be printed on 
the ballot which has not been placed in nomination by 
qualified voters who must take oath that they did not 
participate in a primary for the selection of a candidate 
for the office for which the nomination is made.

“ We think that this statutory system for the se­
lection of party nominees for inclusion on the general 
election ballot makes the party which is required to 
follow these legislative directions an agency of the 
state in so far as it determines the participants in a 
primary election. The party takes its character as a 
state agency from the duties imposed upon it by state 
statutes; the duties do not become matters of private 
law because they are performed by a political party.

14 Elmore et ah, Plaintiff, v. Rice et al., Defendants



E l m o r e  et al., P l a i n t i f f , v. R ic e  et al., D e f e n d a n t s 15

* * * In numerous instances, the Texas statutes fix
or limit the fees to be charged. Whether paid directly 
by the state or through state requirements, it is state 
action which compels. When primaries become a part of 
the machinery for choosing officials, state and national, 
as they have here, the same tests to determine the char­
acter of discrimination or abridgment should be ap­
plied to the primary as are applied to the general elec­
tion. If the state requires a certain electoral procedure, 
prescribes a general election ballot made up of party 
nominees so chosen and limits the choice of the electo­
rate in general elections for state offices, practically 
speaking, to those whose names appear on such a bal­
lot, it endorses, adopts and enforces the discrimination 
against Negroes, practices by a party entrusted by 
Texas law with the determination of the qualifications 
of participants in the primary. This is state action 
within the meaning of the Fifteenth Amendment. 
Guinn v. United States, 238 U. S., 347, 362, 59 L. Ed., 
1340, 1346, 35 S. Ct., 926, L. R. A. 1916-A, 1124.”  (Em­
phasis added.)

88 L. Ed., Page 997.

What is the result of the application of these tests so 
stated by the Court to the case at bar?

(1) Are the primaries here involved “ conducted by 
the party under statutory authority?”  Answer: NO.

(2) Do the party committees or the state convention 
“ certify the party’s candidates to the appropriate officers 
for inclusion on the official ballot for the general election?”  
Answer: NO.

(3) Is it the case here that “ no name which has not 
been so certified may appear on the ballot for the general 
election as a candidate of a political party?”  Answer: NO.

(4) Is it the case here that “ no other name may be 
printed on the ballot which has not been placed in nomina­
tion by qualified voters who must take oath that they did



not participate in a primary for the selection of a candi­
date for the office?”  Answer: NO.

(5) Do we have here a “ statutory system for the se­
lection of party nominees for inclusion on the general elec­
tion ballot?”  Answer: NO.

(6) Does the Democratic party of South Carolina have 
“ duties imposed upon it by state statutes?”  Answer: NO.

(7) Can it be said that the state here “ requires a cer­
tain electoral procedure, prescribes a general election bal­
lot made up o f party nominees so chosen and limits the 
choice of the electorate in general elections for state of­
fices, practically speaking, to those whose names appear 
on such a ballot?”  Answer: NO.

It thus appears that every test applied in the Smith v. 
Allwright Case, and upon which that decision explicitly de­
pended, is inapplicable in the case at bar.

Classic Case Likewise Depended Upon State Statutory 
Control of Primary

Likewise, as was indicated in the Smith v. Allwright 
Case, the same distinction was applied in the Classic Case, 
313 U. S., 299, 55 L. Ed., 1368.

The Court, in upholding the indictments, placed its 
decision expressly upon the ground that the primary con­
stituted an essential part of the statutory process of elec­
tion for United States Congressmen. The Court itself thus 
called attention to some of the significant provisions of the 
Statutes:

“ * * * All political parties, which are defined as 
those that have cast at least 5 per cent of the total vote 
at specified preceding elections, are required to nomi­
nate their candidates for representatives by direct pri­
mary elections. Louisiana Act No. 46, Regular Session, 
1940, Pars. 1 and 3.

16 E l m o r e  et aL, P l a i n t i f f ,  v. R ic e  et aL, D e f e n d a n t s



“  * * * The Secretary of State is prohibited 
from placing- on the official ballot the name of any per­
son as a candidate for any political party not nomi­
nated in accordance with the provisions of the Act. Act
46, Par. 1.”  (Pages 1375 and 1376.)
The Court then, in passing on the question as to 

whether the right to vote in such a primary was one secured 
by the Constitution, repeatedly stated that its decision was 
based upon the finding that under the statutes, the primary 
was an essential part of the statutory process of election, 
saying, passim:

“  * * * We cannot regard it as any the less the 
constitutional purpose or its words as any the less 
guaranteeing the integrity of that choice when a state, 
exercising its privilege in the absence of congressional 
action, changes the mode of choice from a single step, 
a general election, to two, of which the first is the choice 
at a primary of those candidates from whom, as a sec­
ond step, the representative in Congress is to be chosen 
at the election.”  (Page 1378.)

“ * * * Where the state law has made the pri­
mary an integral part of the procedure of choice, or 
where in fact the primary effectively 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 1, Par. 2. And this right of par­
ticipation is protected just as is the right to vote at 
the election, where the primary is by law made an in­
tegral part of the election machinery, whether the voter 
exercises his right in a party primary which invari­
ably, sometimes or never determines the ultimate 
choice of the representative. * * * ”  (Page 1379.)

“  * * * The words of Pars. 2 and 4 of Article 1, 
read in the sense which is plainly permissible and in 
the light of the constitutional purpose, require us to 
hold that a primary election which involved a neces­
sary step in the choice of candidates for election as 
representatives in Congress, and which is the circum-

E l m o r e  ef al., P l a i n t i f f , v. R ic e  et aL, D e f e n d a n t s  17



18 E l m o k e  et al, P l a i n t i f f , v. R ic e  et cil., D e f e n d a n t s

stances of the case controls that choice is an election 
within the meaning of the constitutional provision and 
is subject to congressional regulation as to the manner 
of holding it.”  (Page 1380.) (Emphasis ours.)

‘ ‘ * * * Misuse of power, possessed by virtue of 
state law and made possible only because the wrong, 
doer is clothed with the authority of state law, is action 
taken ‘under color of’ state law.) Ex Parte Virginia, 
100 U. S., 339, 346, 25 L. Ed., 676, 769; Home Telepk 
& Tleg. Co. v. Los Angeles, 227 U. S., 278, 287 et seq., 
57 L. Ed., 510, 515, 53 S. Ct, 312; Hague v. Committee 
for Industrial Organization, 307 U. S., 496, 507, 519, 
83 L. Ed. 1423, 1432, 1438, 59 S. Ct., 954; cf. (C. C. A, 
3d), 101 F. (2d), 774, 790. * * * ”  (Page 1383.) (Em­
phasis ours.)

Thus, in the Classic Case, all political parties were in 
effect “ required to nominate their candidates for represen­
tatives by direct primary election”  (85 L. Ed., p. 1375), 
and the primary “ was conducted by the state at public ex­
pense”  also “ subject to numerous statutory regulations as 
to the time, place and manner of conducting the election, 
including provisions to insure that the ballots cast at the 
primary are correctly counted and the results of the count 
correctly recorded and certified to the Secretary of State 
# # * ”  an(j Secretary of State is prohibited from
placing on the official ballot the name of any person as a 
candidate for any political party not nominated in accord­
ance with the provisions of the Act. Act 46, Par. 1.”

Do any of the conditions above referred to exist in the 
case at bar? Obviously, no. The Court itself expressly 
stated in that case that its decision was dependent upon the 
fact that “ the state law has made the primary an integral 
part of the procedure of choice ’ ’ and that the primary was 
“ by law made an integral part of the election machinery.” 
(85 L. Ed., p. 1375.)



E l m o r e  et al., P l a i n t i f f , v. R ic e  et al., D e f e n d a n t s 19

Also, in the Smith v. Allwright Case, the Court ex­
pressly interpreted the Classic Case as holding that the 
Congressional power to regulate the primary existed only 
“ where the primary is by law made an integral part of the 
electoral machinery”  and that the decision in the Classic 
Case “ depended too on the determination that under the 
Louisiana statutes, the primary was a part of the procedure 
for choice of federal officials.”  (88 L. Ed., p. 995.) (Em­
phasis added.)

The Court below in its opinion makes much of the ex­
pression contained in the quotation from the Classic Case 
“ or where in fact the primary effectively controls the 
choice,”  claiming that such expression places the test 
in the alternative. It is plain, however, that this language 
must be interpreted in the light of the facts of that case 
and where the Court had previously held in effect (85 L. 
Ed., p. 1376), that by law the primary effectively controlled 
the choice. Also, the following sentence in this very para­
graph referred to by the plaintiff showed that the right to 
participate in any such primary as limited to cases “ where 
the primary is by law made an integral part of the electoral 
machinery”  and, as above stated, in the Smith v. Allwright 
case, the Court expressly stated that the decision in the 
Classic case “ depended too on the determination that un­
der the Louisiana Statutes it was a part of the procedure 
for choice of federal officials.”  (Emphasis added.)

It is also to be noted that in this case, which represents 
a kind of a turning point on the question as to whether pri­
maries can under any circumstances be called a part of the 
general election, and in which the previous decisions of 
U. S. v. Gradwell (243 U. S., 487, 61 L. Ed., 865); U. S. v. 
Newlerry (256 U. S., 232, 65 L. Ed., 913), were discussed 
but not overruled, there was a strong dissent by Mr. Jus-



tice Douglas, concurred in by Mr. Justice Black and Mr, 
Justice Murphy.

It is submitted therefore that the Classic case must be 
narrowly confined to its specific holding to the effect that 
where, but only where, the primary is an essential part of 
the statutory process of election, in such cases only is the 
Tight to a citizen to vote in such primary protected by the 
United States Constitution. Conversely it must be held to 
sustain the proposition that where, as here, the primary is 
no part of the statutory process of election, there is no 
Constitutional right to vote in such primary.

To extend the doctrine of the Classic Case to cover the 
situation here “ is to enter perilous territory” , indeed (as 
suggested by Mr. Justice Black in his dissenting opinion 
in the Classic Case).

20 Elmore et al., P laintiff, v. B ice et al., D efendants

The true principle was clearly recognized and applied 
and the distinction forcibly stated by the Circuit Court of 
Appeals for the Fifth Circuit in the ease of Chapman v. 
Kmg (154 Fed. (2d), 460 (C ert Denied 66 Sup. Ct., 905, 
90 L. Ed., 1-025, April 1, 1946).

On the one hand, the Court recognized and clearly 
stated that as a general rule political parties and primaries 
are not subject to federal control and such parties are en­
tirely at liberty to choose their own membership.

In that suit, which is one of the latest cases on the sub­
ject, the plaintiff, a negro, brought suit to recover dam­
ages for being refused the right to vote in the Georgia Dem­
ocratic primary and the Court clearly stated that plaintiff’s 
right of recovery was wholly dependent upon the statutory 
regulation and adoption of the primary by the state.

“ How the federal immigration laws” , said the Court, 
“ frown on anarchists and on organizations which advocate



opposition to all government or the overthrow of the United 
States by force or violence, 8 U. S. C. A., Sec. 137; but we 
are advised of no statute, State or Federal, which under­
takes to limit the right of citizens who form a political 
party to select those who shall participate in it. Nor is 
there any statute which prohibits those who do participate 
in a party caucus, mass meeting or election from agreeing 
to support the result thereof. Accordingly there may be 
parties composed wholly of whites, or wholly of colored 
people, or wholly of Jews, or of men, or of women. In a pure 
party activity by such parties there would result an ex­
clusion from voting in that activity of those of another 
race or sex, but it would not be a denial of the right to vote 
‘at an election by the people in any State, Territory (or) 
county * * * or other territorial subdivision’ in the
words of 8 U. S. C. A., Sec. 31, nor within the meaning of 
the Fifteenth or Nineteenth Amendments. The persons so 
excluded could freely vote in the election by the people 
in the territorial subdivision according to the statute and 
the Amendments, and win the election if they could muster 
a majority. Certainly the exclusion practiced in the pri­
mary by the party would not be an exclusion by the United 
States of a State prohibited by the Amendments, nor ‘ un­
der color of any statute, ordinance, regulation, custom, or 
usage, of any State or Territory’, as is necessary under 
the language of 8 U. S. C. A., Sec. 43, for a recovery of 
damages in this suit.

“ Nor do we think the agreed fact that for the past 
few quadrenniums the Democratic party has carried the 
presidential election in Georgia, or the fact that the nom­
inees in this particular primary were afterwards elected, 
is of great legal significance. It is a matter of public knowl­
edge that it is not always so. It really cannot be foretold 
with certainty at the time of a primary who will win in the

Elmore et al.. P laintiff, d . R ice et al., Defendants 21



final election; nor would it be a sound legal test to say that 
the action of a party was or was not State action according 
to the probability of that party’s success in the succeeding 
election, or according to the actual result of it.”

The Court then finally held that the state had adopted 
the party and the primary and its rules and “ put its power 
behind the rules of the party”  and therefore held in favor 
of the plaintiff.

The Court further pointed out that the State had un­
dertaken by the Act of 1917 to control the method of de­
termining who had been nominated in the primary for cer­
tain officials, including United States Senator, and pointed 
out that that Act in a large measure took such primaries 
out of the parties initiating them, and that it was that Act 
“ which specifically declares that no one may vote who is 
not qualified according to the rules of the party.”  (Page 
464.) The Court then states its conclusions and the basis 
for its decision as follows:

“  We think these provisions show that the State, 
through the managers it requires, collaborates in the 
conduct of the primary, and puts its power behind the 
rules of the party. It adopts the primary as a part of 
the public election machinery. The exclusions of vot­
ers made by the party by the primary rules becomes 
exclusions enforced by the State and when these ex­
clusions are prohibited by the Fifteenth Amendment 
because based on race or color, the persons making 
them effective violate under color of State law a right 
secured by the Constitution of the United States with­
in the meaning of the statute which is here sued on.” 
(Page 464.)
This decision itself clearly is to be construed in the 

light of its previous ruling to the effect that in the absence 
of such statutory control, the parties were free to take into 
their membership any persons they saw fit, saying: “ * *

22 Elmore et al., Plaintiff, v. Rice et al., Defendants



Accordingly there may be parties composed wholly of// 
whites, or wholly of colored people, or wholly of Jews, or 
of men, or of women” .

It is submitted that the true ratio decidendi of the 
above cases is that it is only where the state by its statutes 
has made the primary an essential part of the electoral 
process and put its power behind such primary and rules, 
that any constitutional rights to vote therein can be in­
volved. In the absence of state statutory control enforced 
by the power of the state, there can be no state action and 
hence no constitutional rights involved. There must be, in 
the language of the Smith-Allwright Case “ state action 
which compels”  or, in the language of the Chapmcm v. 
King case, the state must “ put its power behind the rules 
of the party. ’ ’

The Court below seems to have entirely overlooked the 
significance of the fact that in the above cases the states 
involved had put their full power behind the primary and 
rules of the party and enforced the same with proper statu­
tory penalties. Also, in the State of South Carolina, pre­
vious to the repealing statutes of 1943 and 1944, compliance 
with the statutory provisions regulating the party was en­
forceable by a penalty of Five Hundred ($500.00) Dollars 
or imprisonment, or as for perjury.

The only answer which the court below seems to have 
been able to make to the argument was the statement, after 
calling attention to the repeal of all the laws relating to the 
primaries, that “ to say that there is any material difference 
in the governance of the Democratic party in this state 
prior, and subsequent to, 1944 is pure sophistry.”  And, 
again, after calling attention to the method of operation of 
the party, apart from any statutory control, the Court says:

To say that this is not the action of the state is evading 
the facts.”

E l m o r e  et al., P l a i n t i f f , v. Rice et al., D e f e n d a n t s  23



~ We are reminded of the story told by Boswell in his 
'famous “ Life of Dr. Samuel Johnson”  to the effect that 
when Dr. Johnson found it difficult or impossible to answer 

A the arguments of his opponent, he would try to close the 
■’I argument by saying: “ Sir, you are a foo l” .

II

Federal Courts Without Jurisdiction Because No State 
Action Involved and Defendants Not Acting 

Under Any State Statute

(Points 1, 2, 3, 7, 9, 10, 13, 14,19, 20, 28)
‘ ‘ * * * Misuse of power, possessed by virue of 

state law and made possible only because the wrong­
doer is clothed with the authority of state law, is ac­
tion taken ‘under color of’ state law.”

The Classic Case, 313 U. S., 299, 341, 85 L. Ed., 
1368.

“ (4-6) As the defendants here are not charged 
with any duty with respect to furnishing ballots or the 
manner of conducting elections, it is clear that there 
is no justiciable controversy between them and plain­
tiff.”

Smith v. BlacTcwell, 115 Fed., 186 (C. C. A., 4, 
Oct. 31, 1940).

24 Elmore et al., P laintiff, v. E ice et at, D efendants

The Federal Courts are without jurisdiction of this 
controversy for the reason that there was no state action 
involved in that the State of South Carolina has placed no 
duty or obligation whatsoever upon the defendants in this 
cause with reference to the plaintiff, and the defendants, in 
the respects complained of, were not acting under color 
of any state statute or law but were acting solely in their 
capacity as private individuals and as members of the Dem­
ocratic party and not as officials of the State of South Car-



E l m o r e  et ah, P l a i n t i f f , v. B ic e  et ah, D e f e n d a n t s 25

olina; nor is the Federal Court vested with any authority 
over the controversy under the Federal Declaratory Judg­
ments Act.

The Gradwell case, 243 U. S., 487, 61 L. Ed., 865;
The Newberry case,'256 U. S., 232, 65 L. Ed., 913;
The Civil Rights'cases, 1883, 3 Sup. Ct., page 18, 

109 U. S., page 17, 27 L. Ed., page 835;
Robinson v. Holman, 181 Ark., 428, 26 S. W. (2d), 

66, Arkansas Sup. Ct., March 24, 1930 (Cert, 
denied, 282 U. S., 804, 75 L. Ed., 722);

Smith v. Blackwell (C. C. A., 4, Oct. 21, 1940), 114 
Fed., 186;

Hague v. C. I. 0., 307 U. S., 496, 83 L. Ed., 1423.

See also:

Smith v. AUwright, 321 U. S., 647, 88 L. Ed., 987;
Smith v. Blackwell (D. C. E. D., S. C., Sept. 17, 

1940), 34 Fed. Supp., 989;
Chapman v. King, 154 Fed. (2d), page 460 (Cert, 

denied, 66 Sup. Ct., 905, 90 L. Ed., 1025, April 1, 
1946);

The Classic case, 256 U. S., 299, 341, 85 L. Ed., 
1368.

The Gradwell case, the Newberry case, the Classic case, 
and the Civil Rights cases above cited all expressly hold 
that federal courts have jurisdiction only where the aetions 
complained of arose out of, and involved, violation o f some 
rights protected by the Federal Constitution and only 
where such violations have been caused by state action.

“ It is state action of a particular character that is 
prohibited. Individual invasion o f individual rights is not 
the subject matter of the Amendment. * * * ”  (Page 
839.)



“ In this connection it is proper to state that civil 
rights, such as are guaranteed by the Constitution against 
state aggression, cannot be impaired by the wrongful acts 
of individuals, unsupported by state authority in the shape 
of laws, customs or judicial or executive proceedings. The 
wrongful act of an individual, unsupported by any such au­
thority, is simply a private wrong, or a crime of that in­
dividual; an invasion of the rights of the injured party, 
it is true, whether they affect his person, his property or 
his reputation; but if not sanctioned in some way by the 
State, or not done under state authority, his rights remain 
in full force, and may presumably be vindicated by resort 
to the laws of the State for redress. An individual cannot 
deprive a man of his right to vote, to hold property, to buy 
and to sell, to sue in the courts or to be a -witness or a juror. 
Hence, in all those cases where the Constitution seeks to 
protect the rights of the citizen against discriminative and 
unjust laws of the State by prohibiting such laws, it is not 
individual offenses, but abrogation and denial of rights, 
which it denounces, and for which it clothes the Congress 
with power to provide a remedy. This abrogation and de- 
nal of rights, for which the States alone were or could 
be responsible, was the great seminal and fundamental 
wrong which was intended to be remedied. And the remedy 
to be provided must necessarily be predicated upon that 
wrong. It must assume that in the cases provided for, the 
evil or wrong actually committed rests upon some state law 
or state authority for its excuse and perpetration.”  (Page 
841.)

The Civil Rights cases, 109 U. S., page 3, 27 L. 
Ed., 836.

The plaintiff in his Complaint undertakes to base the 
jurisdiction of the Court in this case upon various sections 
of the United States Code Annotated to wit: Subdivision 1,

26 Elmore et al., Plaintiff, v. Rice et at, Defendants



Section 41 of Title 28; Subdivision 11, Section 41, Title 28; 
Subdivision 14, Section 41 of Title 28; and also under Sec­
tion 400 of Title 28 of the United States Code Annotated 
(the said Declaratory Judgments Act), saying that his 
rights thereunder arise from the United States Constitu­
tional provision, Sections 2 and 4 of Article 1 and Amend­
ments 14, 15 and 17 of the Constitution and of Sections 31 
and 43 of Title 8. But all of these alleged bases of jurisdic­
tion come down to the proposition that he can show juris­
diction only if the defendants, acting under color of some 
state statute, have deprived him of his constitutional rights 
to vote. (See cases above cited.)

The authorities on this point are settled, uniform, and 
overwhelming. Indeed, in the SmilJi-Allwright case, in 
which the alleged bases of jurisdiction were in exactly the 
same language as the case at bar (as shown by the tran­
script of record filed in the U. S. Supreme Court), the Su­
preme Court of the United States expressly affirmed the 
jurisdiction of the district Court only under Subsection 
14 of Title 28, U. S. C. A. (Pages 990 and 991.)

The Court thereby disallowed jurisdiction upon all 
other alleged grounds. That section of the Code, however is 
as follows:

The district courts shall have original jurisdiction 
as follows:

* # #

“ (14) Suits to redress deprivation of civil rights. 
Fourteenth. Of all suits at law or in e'quity authorized 
by law to be brought by any person to redress the de­
privation, under color of any law, statute, ordinance, 
regulation, custom, or usage, of any State, of any right, 
privilege, or immunity, secured by the Constitution of 
the United States, or of any right secured by any law 
of the United States providing for equal rights of cit­
izens of the United States, or of all persons within

Elmore et al., Plaintiff, v . Rice et al., Defendants 27



the jurisdiction of the United States. (R. S., 562, 
Par. 12, 629, Par. 16; March 3, 1911, c., 231, 24, Par. 
14, 36 Stat., 1092.)”  (Emphasis added.)
But in this case it is too obvious for argument that the 

defendants in the respects complained o f were not acting 
under color of any State statute or law but were acting 
solely by virtue of the rules of the Democratic party.

Section 43 of Title 8 of the United States Code is in 
substantially the same language.

Both these Statutes for their Constitutional basis go 
back to the Fourteenth and Fifteenth Amendments to the 
Constitution, which provide in effect that citizens shall not 
be deprived of their rights under the Constitution “ by any 
State” , the relevant provisions being as follows.:

“ Amendment X IV  of the Constitution:
“ Section 1. All persons born or naturalized in 

the United States, and subject to the jurisdiction there­
of, are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce any 
law which shall abridge the privileges or immunities 
of citizens of the United States; nor shall any State 
deprive any person of life, liberty, or property, with­
out due process of law; nor deny to any person within 
its jurisdiction the equal protection of the laws.”  (Page
3.) (Emphasis added.)
* # #

“ Amendment X V  of the Constitution:
“ Par. 1. Effect of race, color, or previous servi­

tude.
“ Section 1. The right of citizens of the United 

States to vote shall not be denied or abridged by the 
United States or by any State on account of race, color, 
or previous condition of servitude.”  (Page 997.) (Em­
phasis added.)

28 Elmore et al., Plaintiff, v . Rice et al., Defendants



In the Classic case, it is expressly stated (at Page 
1383), 85 L. Ed., with citations of anthority, that in order 
for the wrongdoer to be acting under “ color of state law”  
he must be guilty of “ Misuse of power possessed by virtue 
of State law and made possible only because the wrongdoer 
is clothed with the authority of the State law. ’ ’

Also, in the Robinson v. Holman case, where the facts 
showed that the party was unregulated by statute, and the 
suit was denied, the Supreme Court in its Per Curiam order 
(75 L. Ed., Page 722), expressly stated that “ The appeal 
herein is dismissed for want of jurisdiction” . (Emphasis 
added.)

In the Smith v. Blackwell cases (34 Supplement, 989, 
115 Fed. (2d), 186), decisions by the district Court of the 
Eastern District of South Carolina and by the Circuit Court 
of Appeals of the Fourth Circuit, respectively, the plain­
tiffs, a group of Republicans, had brought suit particularly 
for the purpose of having the names of candidates for all 
political parties printed on the same ticket. The District 
Court dismissed the Complaint for lack of jurisdicton, par­
ticularly upon the ground that no duty was placed upon 
any of the defendants by statute with reference to the re­
lief prayed for by the plaintiffs. This decision of the Dis­
trict Court (Judge Lumpkin), was affirmed by the Circuit 
Court of Appeals.

In the Circuit Court of Appeals decision, the Court, af­
ter referring to the South Carolina Statutes relative to the • 
form of ballots (Sections 2298 and 2309 of the Code of 1932) 
said:

#  *  #

“ (4-6) As the defendants here are not charged 
with any duty with respect to furnishing ballots or the 
manner of conducting elections, it is clear that there 
is no justiciable controversy between them and plain-

Elmore et al., Plaintiff, v. Rice et al,, Defendants 29



30 Elmore et al, Plaintiff, v. Rice et al, Defendants

tiffs. * * * For a matter to come within the juris­
diction of the court under the Declaratory Judgment 
Act, Jud. Code Par. 274d, 28 U. S. C. A. Par. 400, it 
must involve an actual controversy between the par­
ties before the court ‘admitting of specific relief 
through a decree of a conclusive character.’ ”
The decision of the District Court in this case con­

tained an interesting discussion of the practice prevailing 
in South Carolina at the time, pointing out particularly that 
there was no requirement of the South Carolina statutes 
that one be nominated in a primary in order to be a candi­
date in the general election.

It is true that the above cases did not involve any con­
tention that the plaintiffs had been deprived of any rights 
under the 15th Amendment, but the cases do clearly hold 
that no one in South Carolina is charged with the authority 
and duty of preparing ballots for use in the general elec­
tion. To that extent the cases are particularly per­
tinent to the case at bar where defendants have no stat­
utory duties Avhatsoever with reference to the plain­
tiff, that is to allow him to vote or to furnish him a ballot 
for use whether in the primary or in the general election.

Not only is there no South Carolina statute in any sense 
undertaking to abridge any of the rights of the qualified 
electors in this State, but, on the contrary, the constitu­
tional provisions emphatically safeguard such rights.

(See Article 1, Section 10, South Carolina Constitution 
above cited.)

To the same effect see the recent cases of Screws v. 
United States, (325 U. S., 91, 89 L. Ed., 1495) and also 
Westminster School District of Orange County et al. v. 
Mendez et al., (161 Fed. (2d), 775-784) wherein the juris-



diction of the federal court was predicated upon the fact 
that the officials involved were state officials and as such 
clothed with state authority. Both cases recognized that in 
order for the acts to be done “ under color of state law”  
so as to bring the case within the jurisdiction of the fed­
eral courts, the acts must be those of “ one who is in pos­
session of state powers” and “ uses that power to the do­
ing of the wrongs which the Amendment forbids” and 
where “ the commission of the wrong itself is rendered pos­
sible or is efficiently aided by the state authority lodged in 
the wrongdoer” . (Citing Home Telephone & Telegraph Co. 
v. Los Angeles, 227 U. S., 278, 57 L. Ed., 510.)

Elmore et al., Plaintiff, v. Rice et al., Defendants 31

These cases are to be distinguished from the case at 
bar in that the defendants herein were not in any sense 
officials of the State of South Carolina and were not in pos­
session of any state power under any state law.

The Court below, and we believe the plaintiff also in 
the Court below, has apparently conceded that state action 
is necessary in order to bring this case within the jurisdic­
tion of the Federal Courts. In fact, in the opinion itself, the 
Court expressly holds in effect (Page 10), after discussing 
the Smith-Allwright and the Classic Cases, that to bring 
this case within the constitutional and statutory rights of 
a qualified elector, the violation complained of must be in 
“ a primary conducted in accordance with state law” and 
must take place “ in such a primary” .

The Court below, however, apparently, as we read its 
opinion, seeks to meet this requirement by holding in effect 
that the Democratic party in this State is the same as it 
was before the repeal of the statutes in 1943 and 1944. The 
Court thereby, it is submitted, disregards both the facts 
of this case, and the decisions in all the cases upon which



it relies, including the Classic Case, the Smith-Allwrigkt 
Case and Chapman v. King. The Court apparently com­
pletely disregards the fact that there is now no statutory 
control of the Democratic party and disregards the plain 
holding and requirement as expressed both in the Smith 
Allwright Case aud in the Chapman v. King Case, that in 
order for the Federal Courts to have jurisdiction and that 
there may be any constitutional rights involved, the State 
must put its power behind the rules of the party and it 
must be state action which compels.

The Court also totally disregards, apparently, the vital 
fact, which we hereinafter discuss more in detail, that after 
the repeal of the statutes in 1943 and 1944, the rules of the 
party were enforceable only by expulsion from the party, 
whereas previous to the repeal, the rules of the party and 
the statutes governing the party were enforced by fine of 
$500.00 or imprisonment, or in certain cases as for perjury, 
carrying an even higher penalty. It is elementary that the 
sanction or penalty by which laws are enforced constitutes 
the essential feature of any law. Consequently, when these 
statutory penalties for enforcement of the laws were re­
moved by the repeal, the rules of the Democratic party 
took on an entirely different nature and character. Hence, 
the basic requirement of state action and control has been 
removed and the Federal courts are without jurisdiction.

32 Elmore et al., Plaintiff, v . Rice et al., Defendants

The Court suggests that the “ custom, or usage, of 
any State”  referred to in subdivision 14 of Section 41 of 
Title 28 and Section 43 of Title 8, U. S. C. A. (erroneously 
referred to by the Court as Section 31), may be shown by, 
and may consist of, the operations of the Democratic party 
after, as well as before, the repeal of the regulatory 
statutes.



It is submitted, however, that there is absolutely no 
legal foundation for this conclusion and that, on the con­
trary, all the cases which can be or have been cited held 
that such “ custom or usage”  of any State must consist 
of direct action as evidenced by some State statute or en­
actment.

The Court also suggests that the actions of the Demo­
crats in holding conventions and adopting rules and hold­
ing primaries, constituted custom, usage, or regulations 
within the meaning of the foregoing statutes and consti­
tuted actions “ of the people of the State” . It is submitted, 
however, that there can be no real basis or authority for 
this contention. This does not fulfill the requirement of 
the federal jurisdictional statutes. As a matter of fact, the 
members of the Democratic party would not amount to 
more than several hundred thousand people, whereas the 
people of the State of South Carolina number nearly two 
million. Moreover of course, it is obvious, and elementary, 
that under our theory of government, the State govern­
ment represents the people of the State and there can be 
no legal action of the people of the State except by stat­
utory enactment.

The Court below, discussing a suggestion that state in­
action may amount to such state action, refers to 
the case of Catletts v. U. S., 132 Fed. (2d), 902, 907 (4th
C. C. A. Opinion by Dobie, C. J., citing McCabe v. Atchison
T. £ 8. F. By. Co., 235 U. S., 151; Gaines v. Canada, 305
U. S., 337, as bearing upon this theory. The plaintiff also 
in the Court below advanced this idea and cited certain 
cases as supporting the same. We have carefully examined 
all these cases, however (Marsh v. Alabama, 326 U. S., 501, 
90 L. Ed., 275; Truax v. Corrigcm, 257 U. S., 312, 66 L. 
Ed., 254; Kerr v. Enoch- Pratt Free Library, C. C. A., 4,

Elmore et al., Plaintiff, v. Rice et al., Defendants 33



149 F. (2d), 212) and we submit that none of them in reality 
contain any substantial support for this theory.

In the Smith v. Allwright case as pointed out, the Court 
expressly stated that the party takes its character from 
the duties imposed upon it by State statute, and hence, in 
the absence of any such State statute the party cannot be 
an agency of the State.

Also, the United States Supreme Court, by dismissing 
the petition for the writ of certiorari in the Robinson v. 
Holman case, expressly upon the ground of “ want of juris­
diction”  (282 U. S., 804, 75 L. Ed., 722), has in effect held 
that the Federal Courts are without jurisdiction in cases 
where the refusal to permit the negroes to vote in the state 
primary was wholly a result of party action and not of 
state action.

It is obvious that if plaintiff’s argument in this case 
should be sustained and the Federal Court should assume 
jurisdiction to direct what is to be done, when the State 
has taken no positive action, then the reservation contained 
in the Tenth Amendment to the United States Constitution 
would be rendered nugatory.

The Court below, however, in effect rejected this theory 
saying that its decision would “ rest upon entirely different 
grounds ’ ’.

34 Elmore et al., Plaintiff, v. Rice et al., Defendants

The Court below apparently based its final decision 
and conclusion in the case upon the holding that the Demo­
cratic party though admittedly no longer governed by state 
statutes was still the same organization and an agency of 
the State of South Carolina, that is, “ the same horse al­
though of a somewhat different color” . We submit, how­
ever, that this holding flies in the face of the facts of this 
case and also of the decisions upon which the opinion of

/



Elmore et al., Plaintiff, v. R ice et al., Defendants 35

the Court below is ostensibly based. The repeal of the stat­
utes and the removal of the penalties vitally, fundamentally 
and completely changed the nature of the Democratic party, 
insofar as its relations to the State are concerned. The 
party had initially arisen as a private, voluntary organiza­
tion and upon the repeal of such statutes, it resumed its 
status as a private, voluntary organization.

Ill

Democratic Party of South Carolina A Voluntary Political 
Association With Unrestricted Choice 

Of Membership
(Points 4, 5, 6, 8, 12, 16, 17, 18, 21, 22, 23, 25, 29)

“ Being a voluntary political organization and not 
an agency of the state, the Democratic party had the 
right to prescribe the rules and regulations defining the 
qualifications of membership and to provide that only 
white people could become members, without coming 
within the prohibition of either the Fourteenth or Fif­
teenth Amendment. ’ ’

Robinson v. Holman, 70 A. L. R., pp. 1480, 1482, 
1483, 1484.

“ * * * we are advised of no statute, State or 
Federal, which undertakes to limit the right of citizens 
who form a political party to select those who shall 
participate in it. * * * Accordingly there may be 
parties composed wholly of whites, or wholly of col­
ored people, or wholly of Jews, or of men, or of 
women.”

Chapman v. King, 154 Fed. (2d), 462 and 463.
Defendants were wholly within their rights in denying 

to the plaintiff and other negroes membership in the Demo­
cratic party and excluding them from voting in the Demo­
cratic primary, under the universally established principle 
that private, voluntary associations, such as the Demo-



36 Elmore et al, Plaintiff, v. R ice et al.. Defendants

cratic party of South Carolina, have a complete and un­
restricted delectus personarum\ and such rights are pro­
tected by the traditional American rights to life, liberty and 
the pursuit of happiness, and freedom of assembly, guar­
anteed by the Constitution of the United States.

4 A. J., Pages 462-463 (Citing numerous eases from 
all jurisdictions):

Robinson v. Holman, 181 Ark., 428, 26 S. W. (2d), 
66, Arkansas Sup. Ct., March 24, 1930. Cert. De­
nied in 282 U. S., 804, 75 L. Ed., 722;

Chapman v. King, 154 Fed. (2d), Page 460 (Cert. 
Denied 66 Sup. Ct., 905, 90 L. Ed., 1025, April 1, 
1946);

The Gradwell Case, 243 U. S., 487, 61 L. Ed., 865;
The Newberry Case, 256 U. S., 232, 65 L. Ed., 913;
The Civil Rights Cases, 1883, 3 Sup. Ct., Page 18, 

109 U. S., Page 17, 27 L. Ed., Page 835.

“ Membership in a voluntary association” , as is said 
in 4 American Jurisprudence, “ is a privilege which may 
be accorded or withheld, and not a right which can be 
gained independently and then enforced. The courts cannot 
compel the admission of an individual into such an associa­
tion, and if his application is refused, he is entirely without 
legal remedy, no matter how arbitrary or unjust may be 
his exclusion. The acceptance of, or intention by the per­
son in question to accept, membership in an unincorporated 
association is necessary to make him a member of the or­
ganization. ’ ’

4 American Jurisprudence, Pages 462-463.

The Gradwell Case and the Newberry Case expressly 
applied this principle and held in effect that the conduct 
and activities of political parties and their primaries were 
private matters with which the United States Courts had



no concern. The Smith-Allwright Case and the Classic Case 
departed from the doctrine of the Gradwell and Newberry 
cases only upon the theory that the statutes involved had 
required the holding of the primary and limited the candi­
dates in the general election to the nominees of such pri­
mary, and hence, had thereby made the primary an essen­
tial part of, and necessary step in, the electoral process. 
The logic of the Smith-Allwright and Classic cases is 
simply that where the statutes have made the electoral 
process consist of two necessary steps: (1) the primary, 
and (2) the general election, then, of course, the right to 
vote in the primary therein is equally protected with the 
right to vote in the general election.

In the case of Robinson v. Holman, 181 Ark., 428, 26 
S. W. (2d), 66, 70 A. L. R., 1480 (writ of certiorari denied 
in 282 U. S., 804, /5 L. Ed., 722), which is in many ways 
on all-fours with the case at bar, the above principle was 
recognized and enforced with reference to the political 
party in Arkansas.

The court dismissed the case for want of equity and the 
action of the lower court was affirmed by the Supreme 
Court. The decision was based squarely upon the ground 
that the party was a private, voluntary association, unreg­
ulated by statute.

“ A political party,”  said the court, “ such as the Demo­
cratic party in Arkansas is an unincorporated, voluntary 
association of persons sponsoring certain ideas of govern­
ment or maintaining ‘ certain political principles or beliefs 
in the public policies of the government’. Walls v. Bnm- 
didge, 109 Ark., 250, 160 S. W., 230, Ann. Cas., 1915-C; 
Grigsby v. Harris (D. C.), 27 F. (2d,?.

“ The State has nothing to do with the holding of pri­
mary elections. The statute fixes the date for holding

Elmore et al., Plaintiff, v. R ice et aL, Defendants 37



primary elections, but the state appoints no officers to hold 
a Democratic primary. It does not pay the cost thereof. 
The machinery for holding a Democratic primary election 
in Arkansas is entirely an instrumentality created by the 
party with which the state, as a state, has nothing to do, 
whereas in a general election the entire machinery for hold­
ing such election is the creature of the state.

# # #

‘ ‘ Being a voluntary political organization and not an 
agency of the state, the Democratic party had the right to 
prescribe the rules and regulations defining the qualifica­
tions of membership and to provide that only white people 
could become members, without coming within the prohibi­
tion of either the Fourteenth or Fifteenth Amendment, The 
fact that nominees of the Democratic Party in Arkansas 
are always elected at the general election does not alter 
the situation; neither does the fact that appellants are Dem­
ocrats, that they believe in the principles of the Democratic 
party, and that they supported the nominees in previous 
general elections. There is no more reason to say that the 
Democratic party in Arkansas cannot make the rules in 
question, than there is to say that the Masonic bodies in 
Arkansas may not exclude them on account of color.”

The decision was in effect affirmed by the United States 
Supreme Court in its Per Curiam order entered on March 
24, 1930, dismissing the petition for the writ of certiorari 
and expressly stating that its action was taken “ for want 
of jurisdiction” . We submit that the principle therein 
stated is controlling in the case at bar.

The same principle is recognized and applied in the 
famous Civil Rights Cases ( U. S. v. Nichols, U. 8. v. Single- 
ton; Robinson et al. v. Memphis and Charleston Railroad 
Co., 109 U. S., Page 3, 27 L. Ed., 836). In those cases, which

38 Elmore et al., Plaintiff, v. Rice et at, Defendants



have been regarded as leading cases from the time of their 
decision in 1883 down to the present, it was recognized and 
decided that it was not the intent or purpose of the Thir­
teenth, Fourteenth, and Fifteenth Amendments to the 
United States Constitution to protect negroes from dis­
crimination at the hands of private individuals or corpora­
tions, but only to protect them against the action of the 
state governments and not to undertake to enforce equal 
social rights between the races.

We submit it can not validly be contended that the 
Democatic party of South Carolina is anything but a pri­
vate voluntary association within the meaning of the cases 
hereinabove cited. There are no statutes regulating a Demo­
cratic primary. In no sense is it a part of the electoral proc­
ess of this State. The State pays no portion of its expenses. 
There is no requirement for the holding of the primary. 
Those nominated in the primary have no special status or 
standing in the general election. There is no requirement 
that one be nominated in any such primary in order to be 
eligible as a candidate in the general election. The voters 
in the primary are different in classes from those who are 
authorized to vote in the general election. On the one hand, 
the primary is more inclusive in that eighteen year-olds 
are allowed to vote. On the other hand, it is in some re­
spects more exclusive in that only white Democrats are 
permitted to be members of the party or to vote.

Also, it is important to note that in South Carolina the 
Democratic party conducts all of its activities on private 
property. This, coupled with the other facts involved, 
clearly shows that the Democratic party is a private, vol­
untary association.

It must be remembered that this is a suit against named 
defendants for damages on account of acts alleged to have

Elmore et aL, Plaintiff, v. Rice et aL, Defendants 39



been committed in the primary of 1946. It certainly can 
not validly be contended that the repealing Acts of the 
1943 and 1944 Session of the South Carolina Legislature 
were invalid so as to create or continue any liability of de­
fendants for their actions taken in 1946. Such defendants, 
it is submitted, were absolutely entitled to rely upon the 
repeal of such statutes and upon the fact that the Demo­
cratic party was a private voluntary association, governed 
wholly and solely by its own rules.

The situation here is the reverse of condemning one 
under an ex post facto law. The Court’s decision in effect 
finds the defendants guilty under laws which had already 
been repealed.

40 Elmore et al., Plaintiff, v . Rice et al., Defendants

We believe it is conceded by the plaintiff as it appar­
ently was by the Court below, that if the Democratic party 
is a private, voluntary association, there is unrestricted 
choice of membership and of the enactment of rules for 
membership and voting therein. It is in effect contended 
however by the plaintiff, and was apparently held in effect 
by the Court, that the Democratic party is not a private, 
voluntary association. The Court says in its decision that 
it is faced “ with the final decision as to whether or not the 
present Democratic Party of South Carolina, because it is 
no longer governed by State statutes, is a private organ­
ization and (as was said in argument) must be treated as 
a private, business or social club * * The Court
then proceeds to discuss the matter and to hold in effect 
that because the party continues to operate through clubs 
and conventions and to hold nominating primaries, it is 
essentially the same as it was before the repeal and not a 
private, voluntary association.

We submit that this holding and contention is wholly 
unsound.



Elmore et al., Plaintiff, v . Rice et al., Defendants 41

In reaching this conclusion, the Court apparently dis­
regards the fact that many of the rules of the party pre­
vious to the repeal were matters of statutory law, enforce­
able by fine or imprisonment.

The fact that the party and its primary (along with 
any other parties) were before the repeal regulated by 
statute in many particulars and the rules and regulations 
enforced by statutory penalties was, and is, a distinction 
of vital importance. It is submitted that no further analysis 
of the differences is really necessary.

However, in the light of plaintiff’s argument and for 
the convenience of the Court, we list here below in parallel 
columns some of the differences between the status of the 
party and its primary before the repeal statutes and the 
status after such repealing statutes:

Status of Party and Primary Prior 
to Repealing Statutes of 

1943 and 1944
1. Regulated in many details by 

state statute.
2. Party membership confined to 

members 21 years and over.
3. Many regulations affecting the 

party and primary subject to 
repeal only by the State Leg­
islature.

4. Rules and statutes enforced by 
fine or imprisonment, or as for 
perjury.

Status of Party and Primary A fter  
Repealing Statutes and in the 

1946 Primary

1. Wholly unregulated by statute.
2. Party membership open to 

members of 18 years and over.
3. All party rules and regula­

tions subject to repeal or 
change by the state convention 
o f party.

4. Violation of rules enforced 
only by expulsion from the 
party.

The test as to whether such a party is to be consid­
ered a public organization and as such an agency of the 
State or a private association, is and must he whether it 
is so created by statute and charged with public govern­
mental functions. As said in the Smith v. Allwright case: 
“The party takes its character as a state agency from the 
duties imposed upon it by state statutes * *



42 E lmore et al., Plaintiff, v. E ice et al., Defendants

In this connection, it is pointed out that the bulk of 
the statutes were repealed prior to the decision in the 
Smith-Allwright case.

The Legislature of the State of South Carolina had 
as much right to repeal the regulatory statutes as to enact 
such statutes and the repeal was equally as effective as the 
enactment. It is submitted that the Legislature had a per­
fect right to repeal such statutes and such repeal was per­
fectly valid regardless of the motive.

It has long been established that the Courts will not 
inquire into the motives of the Legislature (McCrary v. 
United States (1904), 195 U. S., 27, 59 L. Ed., 78).

, As a matter of fact, we do not admit that before the 
/ repeal, plaintiff would have been entitled to vote in the 
! Democratic primary. On the contrary, we submit that under 

fj the tests applied in the Smith v. Allwright case and under 
) the “ custom and practice”  in South Carolina (Cf. Gardiner 
; v. Blackwell, Smith v. Blackwell (115 Fed., 186)), plaintiff 

even before the repeal would not have been entitled to vote 
in the South Carolina Democratic primary.

It is obvious that the party, after the repeal of the 
statutes, was wholly at liberty, so far as the state was con­
cerned, to include or exclude negroes. The party by such 
repeal was left entirely free to make its own rules and reg­
ulations and prescribe its own qualifications. The state has, 
and had, no share whatsoever in the enactment or enforce­
ment of the provision limiting the membership to white 
Democrats. The adoption, as well as the continuation, of 
this qualification is a matter left wholly to the membership 
of the Democratic party.

Plaintiff, and the Court below, seem entirely to have 
missed the effect of the repealing statutes and to have dis-



regarded the requirement in the Smith-Allwright Case that 
it must be state action which compels, and in the Chapman 
v. King case that the State must put its power behind the 
rules of the party.

The vital effect of the removal of the statutory control 
and of the penalties should be obvious.

The situation is somewhat analogous to that of a group 
of people organizing themselves into a legal corporation. 
The corporation is, of course, a legal entity which is dif­
ferent from the individuals previously composing it, though 
the individuals are the same. Likewise, if the corporation 
should be dissolved and the stockholders form themselves 
into a partnership, the partnership would be a different 
legal entity and there would result an entirely different le­
gal relationship from the previously existing corporation. 
Such examples could be multiplied ad, infinitum.

It would seem, however, needless to labor the obvious. 
When the regulatory statutes were repealed and all penal­
ties removed, the Democratic party resumed its status as 
a wholly private, voluntary association.

It must be obvious also that if Judge W aring’s deci­
sion is to be upheld, then the right to form political parties 
in this country is destroyed. Judge Waring holds in effect 
that all qualified electors, regardless of their belief in the 
principles of the Democratic party, are entitled, by virtue 
of being qualified electors, to vote in such Democratic pri­
mary. This, of course, destroys the very basis of all politi­
cal parties. Common belief in the principles of government 
advocated is the essential aspect of all political parties. 
In this case it is obvious that one aspect of the common be­
liefs of the Democratic party of South Carolina is that the 
whites and the negroes should be organized in separate 
political parties. It would seem therefore that no person

Elmore et al., Plaintiff, v. Rice et al., Defendants 43



could become a member of the Democratic party unless he 
subscribes to that belief. However, Judge Waring’s deci­
sion holds in effect that all qualified electors, as such, are 
entitled to vote in the Democratic primary. By the same 
token they would be entitled to vote in the Republican party 
primary or even, though Communistic in belief, would be 
entitled to vote in the Democratic primary.

' Also, this holding would, of course, equally apply to 
the C. I. 0., or to the American Federation of Labor, or to 
the League of Women Voters, or to any other political or­
ganization, and a negro or any other citizen, if a qualified 
elector, would be entitled to membership in such political 
organization.

This, it is submitted, amounts to a reductio ad absur- 
dum of the holding in the opinion of the Court below.

SUMMARY AND CONCLUSION

In conclusion, it is earnestly and confidently submitted 
that the plaintiff has no right to recovery in this case:

The South Carolina Democratic party is wholly un­
regulated by Statute. The defendants were acting wholly 
as a result of the party’s rules. Such rules are enforceable 
only by expulsion from the party. The qualifications for 
membership in the party are different from the general 
qualifications for voting in this State. There are no stat­
utes or laws of any sort abridging or restricting plaintiff’s 
right to vote.

It is settled by all the authorities that in private vol­
untary associations, such as the Democratic party, the 
members of such parties have the complete and unrestricted 
right to choose their membership and to fix the qualifica­
tions thereof. There are no constitutional rights involved

44 Elmore et al., Plaintiff, v. Rice et al., Defendants



in such cases. Plaintiff has no more right to vote in the 
Democratic primary in the State of South Carolina than 
to vote in the election of officers of the Forest Lake Coun­
try Club or for the officers of the Colonial Dames of Amer­
ica, which principle is precisely the same.

The only cases, such as the Smith v. Allwright case and 
the Classic case, which plaintiff can cite are cases where 
the States had enacted laws and statutes regulating the 
primaries and in effect taken over the control of such pri­
maries and made the primaries an essential part of the 
statutory electoral process. Such cases expressly and re­
peatedly state that the decisions depended upon such stat­
utory control, and in the latest of these cases, Chapman v.
King, it was expressly pointed out that in the absence of 
such statutory control, there is no reason why there should i. 
not be separate parties “ composed wholly of whites, or {!✓  
wholly of colored people, or wholly of Jews, or of men, or /| 
of women” .

Also, it is uniformly established by the authorities that 
in cases such as this, the Federal Courts have no jurisdic­
tion unless the defendants involved at the time in question 
were acting under color of some State statute or law and 
unless the action complained of was in effect State action.
In this case, on the contrary, defendants were acting wholly 
as a result of the rules of the Democratic party and en­
tirely independent of any State statutes. The State of 
South Carolina took no control or responsibility whatso­
ever for the Democratic primary held in 1946, at which 
time plaintiff claims that he was denied the right to vote.
As was indicated in the Classic Case, a person to be liable 
must be guilty of some “ misuse of power possessed by 
virtue of State law and made possible only because the 
wrongdoer is clothed with the authority of the State law” .

Elmore et al., Plaintiff, v. Rice et al, Defendants 45



Finally, it is submitted that to allow the plaintiff to 
recover in the case at bar would constitute an essential and 
vital destruction of the rights of the people of the State of 
South Carolina in the enjoyment of life, liberty and the 
pursuit of happiness. These rights constitute the basic 
principles of American liberty. It is upon such rights that 
this country was founded and upon them its greatness has 
been achieved. It is submitted that it would be a violation 
of such fundamental rights of the citizens to require them 
to take into their private associations, such as the Demo­
cratic party or other private associations, or like associa­
tions, members who were not acceptable to the member­
ship. Such a holding, also, it is submitted, would be in vio­
lation of the constitutional guarantee contained in the First 
Amendment to the United States Constitution, guarantee­
ing to the citizens freedom of peaceable assembly. It is 
submitted that the whites of this State have certainly got a 
clear Constitutional right to assemble in mass meetings or 
for the purpose of nominating primaries and to choose the 
persons who shall participate in such meetings or prima­
ries.

46 Elmore et al., Plaintiff, v. Rice et al., Defendants

It is submitted that not only has the plaintiff in this 
case not shown the violation of any right to which he is 
constitutionally entitled, but that to grant the right which 
he claims would amount to a violation of the most funda­
mental rights of all the other citizens of the State of South 
Carolina. To grant the relief prayed for in this Complaint 
would be fraught with the most serious dangers to the basic 
rights of American citizenship—the right to life, liberty 
and the pursuit of happiness. In seeking to rectify one al-



leged wrong, it is submitted, the Court would be accom­
plishing an incalculably greater injustice to the body politic.

Respectfully submitted,

CHRISTIE BENET,

W. P. BASKIN,

CHARLES B. ELLIOTT, 

IRVINE F. BELSER,

P. H. McEACHIN,

J. PERRIN ANDERSON,

W. BRANTLEY HARVEY, 

EDGAR A. BROWN, 

YANCEY A. McLEOD,

Elmore et al., Plaintiff, v. Rice et al., Defendants 47

Attorneys for Appellants.









APPENDIX FOR APPELLANTS

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5664

CLAY RICE, ET A L . ,  A p p e l l a n t s , 

versus
GEORGE ELMORE, o n  b e h a l f  of  h i m s e l f  a n d  o t h e r s

SIMILARLY SITUATED, APPELLEE

On A ppe a l  F r o m  T h e  D is t r ic t  C o u r t  of  t h e  U n it e d  
S t a t e s  for  t h e  E a s t e r n  D is t r ic t  of  S o u t h  

C a r o l in a

FILED
OCT 10 1947

CLAUDE M. DEAN
CLSRK.

CHRISTIE BENET, 
Columbia, S. C.

IRVINE F. BELSER, 
Columbia, S. C.

CHARLES B. ELLIOTT, 
Columbia, S. C.

W ILLIAM P. BASKIN, 
Bishopville, S. C.

P. H. McEACHIN,
Florence, S. C.

J. PERRIN ANDERSON, 
Greenwood, S. C.

W. BRANTLEY HARVEY, 
Beaufort, S. C.

EDGAR A. BROWN, 
Barnwell, S. C.

YANCEY A. McLEOD, 
Columbia, S. C.

Attorneys for Appellants.

The R. L. Bryan Company, Legal Printers, Columbia, S. C.





INDEX TO APPENDIX
P a g e

Complaint .............................................................................. 1

Notice of Motion to Make Complaint More Definite and 
Certain and to Strike Certain Parts of the Com­
plaint ................................................................................  9

Answer ................................................................................... 12

Order Refusing Motion to Make Afore Definite and Cer­
tain and Motion to S trik e ............................................ 18

Minute Sheet of Trial Held on June 3, 1947 ..............  19

Defendants’ Appendix One as Part of A n sw er..........  22

Stipulation Filed June 3, 1947 ..........................................  33

Minute Sheet of Trial Held on June 4,1947 .................. 39

Transcript of Testim ony...................................................  40

Opinion of the C o u rt .........................................................  78

Court’s Findings of Fact and Conclusions of Law . . . .  100

Order and Judgment of the C ou rt ...................................  105

Portion of Designation of Record Dated August 15,
1947, containing “ Points”  .......................................  106





APPENDIX FOR APPELLANTS

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5664

CLAY RICE, ET AL., A p p e l l a n t s , 

versus

GEORGE ELMORE, o n  b e h a l f  of  h i m s e l f  a n d  o t h e r s

SIMILARLY SITUATED, APPELLEE

On A p p e a l  F r o m  T h e  D is t r ic t  C o u r t  of  t h e  U n it e d  
S t a t e s  f o r  t h e  E a s t e r n  D is t r ic t  of  S o u t h  

C a r o l in a

Civil No_____

COMPLAINT
1. The jurisdiction of this Court is invoked under sub­

division 1 of Section 41 of Title 28 of the United States 
Code, this being an action at law which arises under the 
Constitution and Laws of the United States, viz., Sections 2 
and 4 of Article I, and Amendments Fourteen, Fifteen and 
Seventeen of said Constitution and Sections 31 and 43 of 
Title 8 of the United States Code, wherein the matter in 
controversy exceeds, exclusive of interest and costs, the 
snm of $3,000.00. The jurisdiction of this Court is also in­
voked under subdivision 11 of Section 41 of Title 28 of the



2 R ic e  et al, A p p e l l a n t s , v. E l m o e e , A p p e l l e e

United States Code, this being an action to enforce the 
right of a citizen of the United States to vote in the State 
of South Carolina. The jurisdiction of this Court is further 
invoked under subdivision 14 of Section 41 of Title 28 of 
the United States Code, this being an action at law author­
ized by law to be brought to redress the deprivation under 
color of law, statute, regulation, custom and usage of a 
State of rights, privileges and immunities secured by the 
Constitution of the United States, viz., Sections 31 and 43 
of Title 8 of the United States Code, all of which will ap­
pear more fully hereafter.

2. Plaintiff shows further that this is a proceedings for 
a declaratory judgment and in injunction under Section 400 
of Title 28 of the United States Code (Section 274D of the 
Judicial Code) for the purpose of determining a question 
in actual controversy between the parties, to-wit, the ques­
tion whether the practice of the defendants in enforcing and 
maintaining the policy, custom and usage by which plaintiff 
and other Negro citizens similarly situated who are quali­
fied electors and denied the right to cast ballot at the Demo­
cratic primary elections in South Carolina solely on account 
of their race or color, violates Sections 2 and 4 of Article 
I, and Amendments Fourteen, Fifteen and Seventeen to 
the Constitution of the United States.

3. All parties to this action, both plaintiff and defend­
ants, are citizens of the United States and of the State of 
South Carolina, and are resident and domiciled in said 
State.

4. The plaintiff, George Elmore, is a Negro, a native- 
born citizen of the United States, is more than twenty-one 
years of age and has resided in Ward 9 Precinct, in Rich­
land County, South Carolina, continuously for a period of 
more than eight years prior to August, 1946, and at that 
time had in his possession a poll tax receipt. Plaintiff at all 
times mentioned herein was and is a duly and legally quali­
fied elector under the Constitution and laws of the United 
States and of the State of South Carolina, and is subject to 
none of the disqualifications provided for voting under the 
Constitution and laws of the FTnited States or the State of



A p p e n d i x 3

South Carolina. Plaintiff is a believer in the tenets of the 
Democratic Party and has never voted for any candidates 
other than those of the Democratic Party.

5. This is a class action authorized by Rule 23A, The 
Rules of Civil Procedure of the District Courts of the 
United States. The rights involved are of common and gen­
eral interest to the members of the class represented by the 
plaintiff, namely, Negro citizens of the United States and 
residents of the State of South Carolina similarly situated 
who are duly cpralified electors under the Constitution and 
laws of the United States and of the State of South Caro­
lina who have been denied the right to vote in the Demo­
cratic Primaries in the State of South Carolina solely be­
cause of their race and color. The members of the class are 
so numerous as to make it impracticable to bring them all 
before the Court and for this reason plaintiff prosecutes 
this action in his own behalf and on behalf of the class with­
out specifically naming said members herein.

6. Defendants, Clay Rice, Mrs. A. B. Parker, Leone 
Bennett, Mrs. Sam Carter, Jr., Charles Stork, Mrs. H. E. 
Snipes, Mrs. Earl Lightsey, Mrs. E. L. Koon, are election 
managers of primary elections in Ward 9 Precinct, Rich­
land County, South Carolina. Defendant, John I. Rice, is 
Chairman and defendants, Lane L. Bonner, Anne Agnew, 
Charles S. Henry, R. Cliff Harper, Fred T. Harrell, J. N.’ 
Land, Jr., J. B. Heine, B. J. Engle, C. D. Wilson, J. L. 
Brazefi, Frank L. Taylor, A. S. Coleman, B. F. Turner, 
J. L. Copton, George N. Nungazer, C. E. Newman, H. F. 
McLendon, F. H. Livingston, Del Booth, J. D. Riley, J. W. 
Gorman, D. T. Cloaninger, J. Y. Reese, C. P. Wingard, S. 
J. Ivinsler, James H. Hammond, E. V. Neeley, D. F. Martin, 
Thomas E. Grigsby, F. N. Franklin, E. E. Dority, J. W. 
Ford, J. L. Snipes, Ware Carnes, Mrs. F. H. Clark, Harold 
Douglas, J. W. Shealy, W. H. Koon, W. T. J. Lever, V. F. 
Funderburk, W. F. Wheeler, W. J. Clark, A. B. Langley, 
J. E. Belser, Jr., G. C. Keefe, Clarence Richards, R. K. 
Gibson, D. M. Winter, J. F. Freeman, Kenneth R. Kreps, 
Ollie Mefford, are members of the Richland County Demo­
cratic Executive Committee. The Richland County Demo-



4 Rice et al., A ppellants, v. E lmore, A ppellee

cratic Executive Committee represents the local county unit 
of the Democratic Party of South Carolina. The primary 
purposes of the Democratic Party of South Carolina are 
to conduct primary elections and to prepare official ballots 
containing the names of Democratic nominees for use in 
general elections.

7. On August 13, 1946, there was held in the State of 
South Carolina and in Richland County of said State a pri­
mary election for nomination of Democratic candidates for 
the House of Representatives of the United States and vari­
ous state officers. The plaintiff and other qualified Negro 
electors presented themselves on the 13th day of August, 
1946, to the regular polling place of Ward 9 Precinct in 
Richland County during the regular hours that the polling 
place was open and requested ballots and to be permitted 
to vote in said primary election. Defendant election man­
agers refused to permit plaintiff and other qualified Negro 
electors to vote in said primary election solely because of 
race or color pursuant to instructions of defendant John 
I. Rice. Defendant, John I. Rice, acting as Chairman of the 
Richland County Executive Committee refused to permit 
plaintiff and other qualified Negroes to vote in said election 
pursuant to rules and regulations adopted by the Demo­
cratic Party of South Carolina and its Richland County 
Unit and enforced by defendants, which rule prohibited 
Negroes from voting in said Democratic Primary elections 
solely because of their race and color.

8. The Constitution of the United States secures to 
qualified voters within the State of South Carolina the right 
to cast their ballots at the elections of representatives and 
senators in the United States Congress. Pursuant to the 
provision of Sections 2 and 4 of Article I and Amendment 
Seventeen of the Constitution of the United States, the 
State of South Carolina has prescribed the qualifications 
for electors in Article II of the South Carolina Constitu­
tion. Copies of these provisions are filed herewith as Ex­
hibit A.

9. In South Carolina the Democratic Primary effective­
ly controls the choice of United States Senators and Eep-



A ppendix 5

resentatives. Since 1875 successful candidates in Demo­
cratic Primaries have always been elected in subsequent 
general elections. During the past eight presidential elec­
tions, Democratic candidates have received from 95.2 to 
98.7 percent of the total vote in general elections, with the 
exception of one election where the Democratic candidates 
received 91.4 percent. Tables showing the results of elec­
tions in South Carolina from 1880 to date are filed herewith 
as Exhibit B.

10. The Democratic Primary election in South Caro­
lina is the only election at which a qualified voter in South 
Carolina can make any meaningful choice among candi­
dates for United States Senator and Representative in Con­
gress.

11. From 1888 to 1915, the State of South Carolina 
maintained varying degrees of statutory control over pri­
mary election. In 1915 the General Assembly of South Car­
olina enacted comprehensive election laws providing for 
full statutory control of primary as well as general and 
special elections. Prior to April, 1944, statutes of South 
Carolina regulated the primary as an integral part of the 
procedure of choice of senators and representatives within 
the meaning of Article 1, section 2, of the United States 
Constitution and the Seventeenth Amendment thereto.

12. On April 3, 1944, the Supreme Court of the United 
States in the case of Smith v. Allwright, recognized the 
principle that the right of citizens of the United States to 
participate in the choice of elected officials cannot be nulli­
fied by a state through casting its electoral process in a 
form which permits a private organization to practice ra­
cial discrimination in the election. Recognizing the applica­
bility of such a decision to South Carolina, the Governor of 
that State, a member of the Democratic Party of South Car­
olina, immediately called a special session of the General 
Assembly of that state to meet on April 14, 1944. The sole 
purpose of such special session was to take legislative steps 
intended to evade and circumvent the decision of the Su­
preme Court of the United States in the case of Smith v. 
Allwright, supra. In his message to the General Assembly



6 R ice et al., A ppellants, v. Elmore, A ppellee

of South Carolina called in special session, the Governor 
of South Carolina stated: “ I regret that this ruling by the 
United States Supreme Court has forced this issue upon us 
but we must meet it like men” ; and: “ History has taught 
us that we must keep our white Democratic primaries pure 
and unadulterated so that we might protect the welfare 
and honor of all the people of our state.”  The Governor 
called for the repeal of all statutes mentioning primary 
elections and in conclusion stated: “ If these statutes are 
repealed, in my opinion, we will have done everything with­
in our power to guarantee white supremacy in our pri­
maries of our state insofar as legislation is concerned. 
Should this prove inadequate, we South Carolinians will 
use the necessary methods to retain white supremacy in our 
primaries and to safeguard the homes and happiness of our 
people. White supremacy will be maintained in our pri­
maries. Let the chips fall Avhere they m ay! ”  A  copy of the 
full text of the Governor’s call of the special session in 1944 
and his message to the General Assembly of South Caro­
lina on April 14, 1944, is attached hereto as Exhibit C.

13. After a session of less than a week the General 
Assembly of South Carolina, composed solely of members 
of the Democratic Party of South Carolina, on April 20, 
1944, passed one hundred and fifty (150) acts repealing all 
existing laws which contained any reference, directly or in­
directly, to primary elections within the state, including an 
act calling for the repeal of the only constitutional provi­
sion mentioning primary elections and set in motion the 
machinery to repeal that provision. Subsequently the Con­
stitution was amended.

14. There has been no substantial change in the con­
duct of primary elections since the repeal of the above-men­
tioned statutes. The Democratic Party of South Carolina 
conducted the primary election of 1944 and 1946 in essen­
tially the same manner as when the above-mentioned stat­
utes were in effect. A  comparative table showing the per­
tinent repealed statutes and the rules of the Democratic 
Party in effect in 1946 are set out in Exhibit D.



A ppendix 7

15. The Democratic Primary elections held in South 
Carolina in 1944 and 1946 continued to effectively control 
the choice of United States Senators and Representatives 
in Congress as well as state officials.

16. The refusal of the defendants to permit the plain­
tiff and other qualified Negro electors to exercise their 
choice in the Democratic Primary to select Democratic nom­
inees for United States Congressmen was a denial to plain­
tiff and others on whose behalf he sues of the right to ex­
ercise their choice of Congressmen.

17. Prior to April, 1944, the Democratic Party in South 
Carolina was performing an essential governmental func­
tion in conducting and supervising primary elections which 
effectively controlled the choice of both federal and state 
officers. Since the repeal of these statutes in April 1944, the 
Democratic Party has continued performing that same gov­
ernmental function in conducting and supervising primary 
elections which continue to effectively control the choice of 
both federal and state officers as before. The refusal of de­
fendants while acting in such capacity to permit plaintiff 
and other qualified Negroes to participate in such primary 
elections because of race and color constitutes a denial of 
rights secured under the Fourteenth and Fifteenth Amend­
ments to the Federal Constitution.

18. The Democratic Party, in the absence of statutory 
provisions requiring any particular state officials to pre­
pare ballots for the general election, has always prepared 
the ballot for use in the aforesaid election and has super­
vised the distribution of these ballots for use in the afore­
said election and has supervised the distribution of these 
ballots. In furnishing ballots in the general election to quali­
fied electors desiring to participate therein, the Democratic 
Party performs an essential governmental function within 
the meaning of the Fourteenth and Fifteenth Amendments 
to the Federal Constitution.

19. The actions of defendants herein in denying to the 
plaintiff and other qualified Negro electors of the State of



8 Rice et al., A ppellants, v. Elmore, A ppellee

South Carolina the right to vote in the congressional pri­
mary for choice of Democratic candidates for Congress was 
an interference with the effective choice of the voters at the 
only stage of the election procedure when their choice would 
have any practical effect on the ultimate result, the choice 
of United States Senator and a Congressman to represent 
the district; the denial of this right constituted a denial or 
abridgment of a right established and guaranteed by the 
United States Constitution; i. e., Sections 2 and 4 of Article 
I, and Amendments Fourteen, Fifteen and Seventeen there­
to.

20. There is between the parties an actual controversy 
as hereinbefore set forth.

21. The defendants by their illegal and wrongful acts 
complained of herein damaged this plaintiff in the sum of 
and to the extent of Five Thousand ($5,000.00) Dollars.

22. The plaintiff and others similarly situated and af­
fected, on whose behalf this suit is brought, are suffering 
irreparable injury and are threatened with irreparable in­
jury in the future by reason of the acts herein complained 
o f ; they have no plain adequate or complete remedy to re­
dress the wrong and illegal acts herein complained of other 
than this action for damages, for a declaration of rights and 
an injunction; any other remedy to which plaintiff and 
those similarly situated could be remitted would be at­
tended by such uncertainties and delays as to deny sub­
stantial relief, would involve multiplicity of suits, cause 
further irreparable injury, damage, vexation and incon­
venience to the plaintiff and those similarly situated.

W HEREFORE, plaintiff respectfully prays the Court 
that upon filing of this complaint, as may appear proper 
and convenient to the Court, the Court advance this case on 
the docket and order a speedy hearing of this action ac­
cording to law, and upon such hearings.

1. That this Court adjudge and decree, and declare the 
rights and legal relations of the parties to the subject mat­
ter in controversy, in order that such declaration shall hâ  e 
the force and effect of a final judgment or decree.



A ppendix 9

2. That this Court enter a judgment or decree declar­
ing that the policy, custom or usage of the defendants, and 
each of them, in denying plaintiff and other qualified Negro 
electors the right to vote in Democratic primary elections 
in South Carolina, solely on account of their race or color, 
is unconstitutional as a violation of Sections 2 and 4 of 
Article I, and Amendments Fourteen, Fifteen and Seven­
teen of the United States Constitution.

3. That this Court issue a permanent injunction for­
ever restraining and enjoining the defendants, and each of 
them, from denying qualified Negro electors the right to 
vote in Democratic primary elections in South Carolina 
solely because of color.

4. That the plaintiff have judgment for Five Thousand 
($5,000.00) Dollars damages.

5. That this Court will allow plaintiff his costs herein, 
and such further, other, additional or alternative relief as 
may appear to the Court to be just and equitable in the 
premises.

(signed) HAROLD R, BOULWARE 
Harold R. Boulware 
1109% Washington Street 
Columbia, South Carolina 

(signed) THURGOOD MARSHALL 
Thurgood Marshall 
20 West 40th Street 
New York, New York

Attorneys for Plaintiff
FILED Feb. 21 1946 Ernest L. Allen C. D. C. U. S. E

D. S. C.

Civil Action No. 1702 
NOTICE OF MOTION

TO: HAROLD R. BOULWARE, ESQUIRE AND THUR­
GOOD MARSHALL, ESQUIRE, ATTORNEYS FOR
THE P L A IN T IF F :
YOU WILL PLEASE TAKE NOTICE that the un­

dersigned attorneys on behalf of the defendants above



named, without waiving but expressly reserving the right 
to insist upon the objection to the jurisdiction of the Court, 
will move before the Honorable George Bell Timmerman, 
Judge of the United States District Court for the Eastern 
District of South Carolina, at his Chambers, at the United 
States Court House, Columbia, South Carolina, on the 22nd 
day of April, 1947, for an order requiring the plaintiff to 
make the complaint heretofore served herein more definite 
and certain by separately stating the alleged causes of ac­
tion attempted to be set forth therein, to-wit:

1. The alleged cause of action said to arise under sub­
division 1 of Section 41 of Title 28 of the United States 
Code; and

2. The alleged cause of action said to arise under sub­
division 11 of section 41 of Title 28 of the United States 
Code; and

3. The alleged cause of action said to arise under sub­
division 14 of Section 41 of Title 28 of the United States 
Code; and

4. The alleged cause of action or proceeding said to 
arise under Section 400 of Title 28 of said United States 
Judicial Code.

YOU W ILL PLEASE FURTHER TAKE NOTICE 
that at the same time and place the undersigned attorneys 
on behalf of said defendants will move to strike from the 
complaint, on the ground that the said allegations are ir­
relevant, redundant, and argumentative or plead matters 
of law, the following portions thereof:

1. Each and every clause, sentence and allegation con­
tained in paragraphs eight (8), nine (9), ten (10), eleven 
(11) and twelve (12) of said complaint.

2. Exhibit B referred to in paragraph nine (9) of said 
complaint and attached to said complaint.

3. Exhibit C referred to in paragraph twelve (12) of 
said complaint and attached to said complaint.

4. Each and every clause, sentence and allegation con­
tained in paragraphs fourteen (14) and fifteen (15) of said 
complaint.

10 Rice et al., A ppellants, v. Elmore, A ppellee



A ppendix 11

5. Exhibit D referred to in paragraph fourteen (14) 
of said complaint and attached to said complaint.

6. Each and every clause, sentence, and allegation con­
tained in paragraphs seventeen (17) and eighteen (18) of 
said complaint.

7. The word election”  in the caption of the summons 
and complaint and the word “ election”  in the body of the 
complaint wherever said word “ election”  is used to denote 
election manager, or primary elections, or elections pursu­
ant to the rules and regulations of the Democratic Party.

8. That portion of paragraph thirteen (13) of the com­
plaint, reading as follows:

“ composed solely of members of the Democratic Party 
of South Carolina.”

April 10, 1947.
Address:
912-13 Liberty Life Building 
Columbia, South Carolina

/S /  CHARLES B. ELLIOTT
Charles B. Elliott, Columbia, S. C. 

/ S /  IRVINE F. BELSER
Irvine F. Belser, Columbia, S. C. 

/ S /  P. H. McEACHIN
P. H. McEachin, Florence, S. C. 

/ S /  J. PERRIN ANDERSON
J. Perrin Anderson, Greenwood, S. C. 

/ S /  W. BRANTLEY HARVEY
W. Brantley Harvey, Beaufort, S. C. 

/ S /  EDGAR A. BROWN,
Edgar A. Brown, Barnwell, S. C. 

/ S /  Wm. P. BASKIN
Wm. P. Baskin, Bishopville, S. C.

FILED APR 11 1947 ERNEST L. ALLEN C. D. C H.
S. E. D. S. C.

A  TRUE COPY. ATTEST 
ERNEST L. ALLEN

Clerk, U. S. District Court, 
East. Dist. So. Carolina



Civil Action No. 1702 
ANSWER

The defendants, without waiving bnt expressly reserv­
ing the right to insist upon their motions to strike and make 
more definite and certain, by way of answer, respectfully 
show to this Honorable Court.

First, For a First Defense:

1. That this Honorable Court is without jurisdiction 
of the subject matter of this controversy, for the reason 
that it appears from the face of the complaint that no sub­
stantial Federal question is involved, and that the alleged 
Federal questions are merely pretensive; and particularly:

(a) That the jurisdictional amount does not in reality 
exist so as to give the Court jurisdiction under subdivision 
1 of Section 41 of Title 28 of the United States Judicial 
Code; and

(b) That this is not in reality an action to enforce the 
rights of a citizen to vote so as to give the Court jurisdic­
tion under subdivision 11 of Section 41 of Title 28 of the 
United States Judicial Code; and

(c) That the alleged acts complained of were not taken 
under color of any law, statute, regulation, custom and us­
age of a State so as to bring the matter within the jurisdic­
tion of the Court under subdivision 14 of Section 41 of Title 
28 of the United States Judicial Code; and

(d) That under Section 400 of Title 28 of the United 
States Judicial Code, this Court does not have jurisdiction, 
unless jurisdiction exists under and by virtue of some other 
section of the Judicial Code, which jurisdiction is expressly 
denied; said Section 400 does not enlarge the jurisdiction 
of this Honorable Court.

Second, For a Second Defense:

1. That the complaint fails to state facts sufficient to 
constitute a cause of action, or to entitle the plaintiff to the

12 R ice et al., A ppellants, v. E lmore, A ppellee



A ppendix 13

relief demanded, or to any relief at law or in equity, in that 
it appears upon the face of the complaint that the Demo­
cratic Party of South Carolina is a private voluntary asso­
ciation of individuals, mutually acceptable to each other, 
and is not created or regulated by virtue of any statute or 
law but solely by the rules of said voluntary association; 
that the plaintiff has not been deprived of any rights, priv­
ileges or immunities secured or protected under the Con­
stitution or laws of the United States. It further appears 
that the complaint fails to state a claim against defendants 
upon which relief can be granted.

Third, For a Third Defense:

1. Defendants deny each and every allegation con­
tained in paragraph one (1) of the complaint.

2. Defendants deny each and every allegation con­
tained in paragraph two (2) of the complaint.

3. Defendants admit the allegations contained in para­
graph three (3) of the complaint.

4. Defendants have no knowledge or information suffi­
cient to form a belief as to the allegations contained in para­
graph four (4) of the complaint, and therefore, deny each 
and every allegation contained in said paragraph four (4).

5. Defendants deny each and every allegation con­
tained in paragraph five (5) of the complaint and specifi­
cally deny that this action is properly brought by the plain­
tiff on behalf of any other members of his alleged class.

6. Answering the allegations of paragraph six (6), 
defendants deny that the persons designated in said para­
graph as election managers of primary elections in Ward 
9 Precinct were election managers of primary elections, and 
allege in regard thereto that Clay Rice and the other de­
fendants so designated were managers of the primary in 
Ward 9 Precinct, Richland County, S. C .; deny that the 
primary purposes of the Democratic Party of South Caro­
lina are to conduct primary elections and to prepare offi­



cial ballots containing the names of Democratic nominees 
for use in general elections. Defendants admit that the de­
fendant, John I. Rice, as Chairman, and the other defend­
ants so designated in said paragraph, are members of the 
Richland County Democratic Executive Committee, which 
committee represents the local county unit of the Demo­
cratic Party of South Carolina, but deny each and every 
other allegation contained in said paragraph six (6) of the 
complaint not herein admitted.

7. Defendants deny each and every allegation con­
tained in paragraph seven (7) of the complaint, except that 
on August 13, 1946, there was held in the State of South 
Carolina and in Richland County of said State a primary 
for nomination of Democratic Candidates for the House of 
Representatives of the United States and various state of­
ficers; that plaintiff presented himself on the 13th day of 
August, 1946, to the regular polling place of Ward 9 Pre­
cinct in Richland County during the regular hours that the 
polling place was open and requested ballots and to be per­
mitted to vote in said primary; that defendant managers 
refused to permit plaintiff to vote in said primary because 
he was not qualified according to the rules of the Party and 
was not a White Democrat and not duly enrolled.

8. Answering the allegations of paragraph eight (8), 
defendants allege that the Constitution of the United States 
secures to qualified voters within the State of South Car­
olina the right to cast their ballots only at the general elec­
tions for representatives and senators in the United States 
Congress and not the right to cast their ballots in the pri­
mary conducted by the Democratic Party on August 13, 
1946, but deny that Exhibit A  correctly sets forth a copy of 
the constitutional provisions referred to.

9. Answering paragraph nine (9), defendants deny 
each and every allegation contained in paragraph nine (9) 
of the complaint.

10. Defendants deny each and every allegation con­
tained in paragraph ten (10) of the complaint.

14 R ice et al., A ppellants, v. E lmore, A ppellee



A p p e n d i x 15

11. Answering paragraph eleven (11), defendants ad­
mit that from time to time there were statutes in South Car­
olina regulating certain primaries in the State of South 
Carolina, but crave reference to the original statutes for 
their proper interpretation and deny the interpretation 
placed thereon by the plaintiff. Defendants deny each and 
every other allegation contained in paragraph eleven (11) 
of the complaint.

12. Answering paragraph twelve (12), defendants de­
ny the interpretation placed on the case of Smith v. All- 
wright, as applied to the facts in the case now before the 
Court; and further deny that the purpose of such legislative 
session can be deduced from the language of the Governor’s 
message therein referred to, or was as alleged in said para­
graph, and in this connection defendants allege that it was 
perfectly proper and permissible to take up any matter be­
fore the special session of the said Legislature, as is shown 
by the proclamation calling such session and by the laws 
or the Constitution of South Carolina. Defendants deny 
that Exhibit C is a correct copy.

13. Defendants admit the allegations contained in 
paragraph thirteen (13) but crave reference to the Acts 
for their proper interpretation and allege in regard there­
to that the only provision in the Constitution of the State 
of South Carolina, 1895, to-wit: Article 2, Section 10, men­
tioning primaries was effectively repealed, the Act ratify­
ing the amendment and repealing Article 2, section 10, hav­
ing been approved February 14, 1945. (S. C. Statutes, 1945, 
No. 11).

14. Defendants deny each and every allegation con­
tained in paragraph fourteen (14) of the complaint and 
deny that Exhibit D correctly sets forth a comparative table 
showing the pertinent repealed statutes and the rules of 
the Democratic Party in effect in 1946. Further answering, 
the defendants particularly deny that the primaries in 1944 
and 1946 have been conducted in essentially the same man­
ner as previous to the repeal of the Acts relating to the 
primaries; and in regard thereto, defendants specifically



16 R ic e  et al, A p p e l l a n t s , v. E l m o r e , A p p e l l e e

allege that the Democratic primary since the adoption of 
the above mentioned repealing Acts has been conducted in 
a basically and fundamentally different manner in that it 
has been conducted as a private voluntary association of 
individuals, mutually acceptable to each other, not created 
or regulated by virtue of any statute or law, but solely by 
the rules of said voluntary association.

15. Defendants deny each and every allegation con­
tained in paragraph fifteen (15) and allege, on the con­
trary, that the way is left open for any and all political par­
ties to compete in and win the election of representatives 
and senators in Congress.

16. Defendants deny each and every allegation con­
tained in paragraph sixteen (16) and allege, on the con­
trary, that the plaintiff and others in like situation have 
full and complete liberty to organize their own nominating 
primary and to vote for such nominees in the general elec­
tion.

17. Defendants deny each and every allegation con­
tained in paragraph seventeen (17) and particularly deny 
that since April, 1944 the Democratic Party has performed 
in any sense the same functions it may have performed 
previous to such time.

18. Answering paragraph eighteen (18), defendants 
admit that there is no statutory provision in South Carolina 
requiring any state officials to prepare ballots for use in the 
general election, but deny each and every other allegation 
contained in paragraph eighteen (18) and allege, on the 
contrary, that at many general elections in the State of 
South Carolina before and since 1876 political parties, 
other than the Democratic, have prepared ballots for use 
in the general election; that on August 13, 1946, as well as 
at the present time, any political party or individual citi­
zen had full liberty of preparing ballots for the general 
election.

19. Defendants deny each and every allegation con­
tained in paragraph nineteen (19) and allege in regard



A p p e n d i x 17

thereto that the plaintiff and others in like situation are at 
full liberty to organize a political party and make their 
own choice of candidates for the general election and, if 
otherwise qualified under the South Carolina Constitution, 
to vote for such candidates in such general election.

20. Answering paragraph twenty (20), the defendants 
deny that there is any actual justiciable controversy be­
tween the plaintiff and defendants cognizable by this Hon­
orable Court for jurisdictional purposes.

21. Answering paragraph twenty-one (21), defendants 
expressly deny the same, and allege, on the contrary, that 
the claim of $5,000.00 is purely pretensive and fictitious and 
so stated merely for the pretensive purpose of giving this 
Honorable Court jurisdiction, but deny that such unsup­
ported and undetailed claim is sufficient to furnish the 
amount required to give this Honorable Court jurisdiction.

22. Answering paragraph twenty-two, defendants deny 
the same; and in this connection the defendants deny that 
the plaintiff has suffered or will suffer any actual damages, 
or that the plaintiff is entitled to any declaration of rights 
or an injunction.

23. That a true and correct copy of the Rules of the 
Democratic Party of South Carolina, adopted by the Demo­
cratic State Convention May 15, 1946 (corrected June 6, 
1946) is attached to this Answer as Exhibit A.



18 R ic e  et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

WHEREFORE, the defendants pray that the com­
plaint be dismissed and for the costs of this action.
April 10,1947.
Address :
912-13 Liberty Life Building 
Columbia, South Carolina.

/ S /  CHARLES B. ELLIOTT 
/ S /  IRVINE F. BELSER 
/ S /  P. H. McEACHIN 
/ S /  J. PERRIN ANDERSON 
/ S /  W. BRANTLEY HARVEY 
/ S /  EDGAR A. BROWN 
/S /  Wm. P. BASKIN
A  TRUE COPY. ATTEST 
ESNEST L. ALLEN

Clerk, U. S. District Court, 
East. Dist. So. Carolina

FILED APR 11 1947 ERNEST L ALLEN C. D. C. U. 
S. E. D. S. C.

Civil Action No. 1702 

ORDER

In the above entitled cause defendants filed a motion 
to make the complaint more definite and certain by sep­
arately stating the alleged causes of action arising under 
the various statutes and subdivisions set forth in the com­
plaint.

The complaint sets forth various statutes under which 
it is claimed that the plaintiff is entitled to a declaratory 
judgment and injunction by reason of his having been de­
prived of rights as a citizen granted to him under various 
articles of the constitution of the United States and stat­
utes implementing the same. It would seem to be an act of 
futility to redraft the complaint setting forth all the al­
leged deprivations in separate causes of action and re­
peating the same under each article of the constitution or 
statute cited. The complaint is quite full and clear as to 
the claim of the plaintiff and the defendants are certainly



A p p e n d i x 19

full advised of his claims and the basis of same. Accord­
ingly, the motion to make more definite and certain (con­
taining four separate paragraphs) is overruled and denied.

A further motion is made by the defendants to strike 
from the complaint various allegations which are alleged 
to be irrelevant, redundant, and argumentative, or plead­
ing matters of law. This motion is subdivided in eight sep­
arate parts. I am of the opinion that all of these various al­
legations are pertinent to the issues submitted and aid in 
the presentation of the precise points to be passed upon and 
of such a nature as to be readily admitted or denied in an 
answer. Accordingly, the motion as to all eight of its parts 
is overruled and denied. Accordingly, it is

ORDERED that the motion to make more definite and 
certain and also the motion to strike certain parts of the 
complaint which were filed in this court on April 11, 1947, 
be and the same are hereby refused.

J. W AITES WARING 
United States District Judge.

A TRUE COPY. ATTEST.
ERNEST L. ALLEN 

Clerk of U. S. District Court
East. Dist. So. Carolina

Columbia, S. C.,
May 15, 1947.

FILED MAY 15 1947 ERNEST L. ALLEN C. D C U 
S. E. D. S. C.

Civil Action No. 1702

The court opened at Columbia, S. C., on June 3, 1947, 
at 10:20 a. m. Hon J. Waties Waring Presiding

PRESENT
Ernest L. Allen, Clerk Norris M. Thomas, U. S. Marshal

APPEARANCES: Harold R. Boulware, Esq.; Robert



20 R ic e  et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

L. Carter, Esq.; Thurgood Marshall, Esq.; (Marshall was 
admitted to practice for the purpose of this trial)

For Plaintiff
C. B. Elliott, Esq.; Irvine P. Belser, Esq.; J. Perrin 

Anderson, Esq.; W. Brantley Harvey, Esq.; Edgar A, 
Brown, Esq.; Christie Benet, Esq.; William P. Baskin, 
Esq.; Yancey A. McLeod; For Defendants

Plaintiff’s counsel requested the Court that he be al­
lowed to withdraw Exhibit D. in the original complaint and 
substitute Appendix A to plaintiff’s complaint. He then of­
fered in evidence Appendix A and the Court announced that 
the amendment would be allowed with the understanding 
that all of the excerpts in the right hand column are taken 
from the 1942 Code of the State of South Carolina. Mr. 
Benet, of counsel for defendant, requested that it be un­
derstood that defendants have a right to have an amend­
ment to their answer to cover any mistakes that might be 
included therein. Plaintiff’s counsel then requested permis­
sion to withdraw Exhibit A  from the complaint and have it 
submitted as a part of the stipulation to be filed and de­
fendants’ counsel interposed no objection to the same, pro­
vided they be permitted to check said exhibits for any er­
rors therein; which permission was granted by the court.

Plaintiff’s counsel then offered Appendix B through 
I as a part of the complaint and requested permission to 
withdraw Appendix E for the purpose of having an extra 
copy of same made, which permission was granted by the 
Court.

Mr. Benet, of counsel for the defendant, called the at­
tention of the Court to the fact that a motion for continu­
ance had heretofore been filed in Charleston, and made re­
turnable on Monday, June 2. He further stated that in view 
of the fact that a stipulation had been entered into in the 
meantime, counsel would not press motion for a continu­
ance and would cover the other grounds stated in the mo­
tion in their legal argument. He then filed with the Court 
Appendix A, as a part of the answer, which appendix was 
allowed by the Court.



A p p e n d i x 21

The Court then directed the filing of a stipulation in­
asmuch as preliminary motions had been disposed of and 
when the stipulation was read Mr. Benet objected to stipu­
lation 16, as not being pertinent or responsive to the al­
legations of the complaint. He also objected to paragraph 
20 of the stipulation as not being pertinent to the action. 
Both objections were overruled by the Court.

Plaintiff’s counsel then objected to paragraph 24 of the 
stipulation as being immaterial and having no bearing on 
the case, which objection was overruled. Counsel for both 
the plaintiff and defendant then advised the Court that in 
view of the stipulation no oral testimony would be offered. 
Whereupon memorandum briefs were filed with the Court 
by each side and leave was granted to counsel for filing 
briefs in reply, upon the condition that proposed Findings 
of Fact and Conclusions of Law would be submitted to the 
Court.

The Court then discussed with counsel the matter of 
time for arguments and it was agreed that each side be al­
lowed two hours for arguments.

Oral arguments were then entered into with Harold R. 
Boulware, Esq., from 11:05 a. m. to 11:18 a. m., followed 
by Thurgood Marshall, Esq., for the plaintiff, from 11:18 
a. m. to 12:10 p. m., at which point a recess was taken un­
til 12:25 p. m.

At 12:25 p. m. Irvine F. Belser, Esq. opened arguments 
for the defendants and continued until 1 :30 p. m., at which 
time a recess was taken until 3 :00 p. m. Upon re-convening 
of the Court at 3 :10 p. m., following the recess, Mr. Belser 
continued until 3 :45 p. m. and was followed by Charles B. 
Elliott, Esq. until 4 :07 p. m.

The court adjourned at 4:10 p. m. until 10:00 a. m., 
June 4,1947.

ERNEST L. ALLEN, Clerk 
A TRUE COPY. ATTEST.
EKNEST L. ALLEN 

Clerk of U. S. District Court
East. Dist. So. Carolina



22 Rice et al., A ppellants, v. Elmore, A ppellee

DEFENDANTS’ APPENDIX I
RULES OF THE DEMOCRATIC 

PARTY OF SOUTH 
CAROLINA

In Effect since May 15, 1946 
QUALIFICATIONS FOR CLUB 

MEMBERSHIP 
6. The qualifications for mem­

bership in any club of the party 
in this State, and for voting at a 
primary shall be as follows, viz.: 
The applicant for membership, or 
voter, shall be 18 years of age, or 
shall become so before the succeed­
ing general election and be a white 
Democrat. He shall be a citizen 
of the United States and of this 
State, and shall be able to read or 
write, and interpret the Constitu­
tion of this State. No person shall 
belong to any club or vote in any 
primary unless he has resided in 
the State two years and in the 
county six months prior to the suc­
ceeding general election and in the 
club district 60 days prior to the 
first primary following his offer to 
enroll: Provided, T h a t  public
school teachers and ministers of 
the gospel in charge of a regular 
organized church shall be exempt 
from the provisions of this section 
as to residence, if  otherwise qual­
ified.

CIVIL CODE OF SOUTH 
CAROLINA

In Effect On April 13, 1944 
2355. Q U A L I F I C A ­

TIONS FOR PARTY MEMBER­
SHIP AND VOTE— Exceptions as 
to teachers, ministers and federal 
employees.—

The qualifications for member­
ship of such party, organization or 
association in this State, and for 
voting at the primary, shall be as 
follows, viz.: the applicant for
membership, or voter, shall be 21 
years of age, or shall become so 
before the succeeding general elec­
tion. He shall be a citizen of the 
United States and of this State. 
No person shall belong to any club 
or vote in any primary unless he 
has resided in the State two years 
and in the county six months prior 
to the succeeding general election 
and in the club district 60 days 
prior to the first primary follow­
ing his offer to enroll: provided 
that public school teachers and 
ministers of the gospel in charge 
of a regular organized church and 
federal employees from this State 
shall be exempt from the provi­
sions of this section as to residence 
if otherwise qualified: provided, 
that the state convention of any 
political party, organization or as­
sociation in this State shall have 
the power and authority to add to 
or to limit the qualifications for 
membership in such party, organi­
zation or association, and for vot­
ing at the primary elections there­
of, if such qualifications so added 
or limited do not conflict with the 
provisions herein as to the age and 
residence of members and voters.



A p p e n d i x 23

r u l e s  o f  t h e  d e m o c r a t ic
PARTY OF SOUTH 

CAROLINA
In effect since May 15, 1946 

ABSENTEE ENROLLMENT 
10 (a).  That any person, who 

because of absence from the State 
or illness, is unable to go to the 
place where the enrollment book is 
kept for the purpose of entering 
his or her name thereon shall be 
permitted to send to the club sec­
retary or the county secretary an 
application in writing signed by the 
person, forms for which will be 
printed asking that his or her 
name be placed upon the enroll­
ment book; and that in cases 
where such application or applica­
tions are in order the club secre­
tary or county secretary shall 
cause the enrollment of such per­
sons, and shall attest the enroll­
ment by his signature.

RULES OF THE DEMOCRATIC 
PARTY OF SOUTH 

CAROLINA
In effect since May 15, 1946 

OATH FOR ALL CANDIDATES 
26 (a) Following is the form 

of the oath: “As candidate for the
office of ................................ in the
Democratic primary, to be held on 
the second Tuesday in August, 
194.., I hereby pledge myself to 
abide the results of such primary 
and support the nominees of this 
primary, and I declare that I am 
a Democrat and that I am not nor 
will I become the candidate of any 
faction, either privately or pub­
licly suggested, other than the 
regular Democratic nomination.

CIVIL CODE OF SOUTH 
CAROLINA

In effect on April 13, 1944

NONE

CIVIL CODE OF SOUTH 
CAROLINA

In effect on April 13, 1944

NONE



24 R ic e  et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

ADDITIONAL OATH FOR CON­
GRESSIONAL CANDIDATE 
26 (b) I f  the candidate is 

running for the United States 
Senate, or for the United States 
House of Representatives, this ad­
ditional pledge shall be required: 
“ I will support the political prin­
ciples and policies o f the Demo­
cratic Party of South Carolina 
during the term of office for which 
I may be elected.”  This the . . . .  
day of ................................... 194...

PROVISION FOR ADDITIONAL
CANDIDATES IN CASE OF
VACANCIES
26 (c).  PROVIDED, That in 

case where there be not more than 
two candidates for any one office 
after the time for filing such 
pledges, and before the close of 
the primary, should any candidate
die or become physically incapaci- NONE
tated or withdrawn, the State or 
County Committee may in its dis­
cretion (as the case may be) af­
ford opportunity for the entry of 
other candidates for the office in­
volved; and should such vacancy 
occur more than 10 days before the 
first primary, then said committee 
may make provision for other ad­
ditional candidates entering the 
race; but if said vacancy occur 
after said 10 days, then the ballot­
ing for said office shall be at such 
time as may be fixed by said com­
mittee and that they shall provide 
for the filing of pledges.



A p p e n d i x 2 5

RULES OF THE DEMOCRATIC 
PARTY OF SOUTH 

CAROLINA
In Effect Since May 15, 1946 

OATH TO BE TAKEN BY 
VOTERS
32. The managers at each box 

at the primary shall require every 
voter to pledge himself to abide 
the results of the primary, and to 
support the nominees of the party, 
and to take the following oath and 
pledge, viz: “ I do solemnly swear 
that I am a resident of this club 
district and am duly qualified to 
vote at this primary according to 
the rules of the Democratic party, 
and that I have not voted before 
at this election, and pledge myself 
to support the nominees of this pri­
mary.

RULES OF THE DEMOCRATIC 
PARTY OF SOUTH 

CAROLINA
In Effect Since May 15, 1946 

UNOPPOSED CANDIDATES 
OMITTED FROM BALLOT 
33 (Paragraph 2) Provided, 

however, that county committees 
and the state committee are di­
rected to declare any candidates 
without opposition nominees of the 
party without having placed the 
names of such unopposed candi­
dates on the ballots.
ABSENTEE VOTING

47 (i) The Secretary of the 
County Committee shall file with 
the County Chairman, not later 
than Friday noon next preceeding 
the primary, a complete list of all 
absentee ballots furnished appli­
cants for absentee ballots, and said 
list shall be kept by the County 
Chairman and shall be available 
for inspection.

CIVIL CODE OF SOUTH 
CAROLINA

In Effect On April 13, 1944 
OATH FOR VOTERS

2365 (5) The managers at
each box at the primary shall re­
quire every voter to take the fol­
lowing oath and pledge, viz: “ I do 
solemnly swear that I am a resi­
dent of this club district and am 
duly qualified to vote at this elec­
ts011 ............................... and that I
have not voted before at this elec­
tion.”

CIVIL CODE OF SOUTH 
CAROLINA

In Effect On April 13, 1944

NONE

NONE



26 R ic e  et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

RULES OF THE DEMOCRATIC 
PARTY OF SOUTH 

CAROLINA
In effect since May 15, 1946 

PROTESTS AND CONTESTS 
36. The protests and contests 

for county officers and members of 
the General Assembly shall be filed 
within two days after the day of 
the declaration by the County Com­
mittee of the result of the primary 
with the chairman of the County 
Committee. Copies thereof shall 
also be served upon opposing candi­
date or candidates, and said Coun­
ty Committee shall hear and de­
termine the same on the first Tues­
day after each primary. The State 
Committee shall meet on the sec­
ond Tuesday after each primary or 
at such other time as may be desig­
nated by the chairman, to hear and 
decide protests and contests as to 
United States Senator, State offi­
cers, Representatives and Solici­
tors: PROVIDED, That no mem­
ber of the County Committee shall 
act in any contest wherein his 
candidacy is acted on. The protests 
and contests for all officers except 
county officers and members of the 
General Assembly, shall be filed 
within five days after the election 
with the chairman of the State 
Committee. Copies thereof shall 
also be served upon opposing can­
didate or candidates.

RULES OF THE DEMOCRATIC 
PARTY OF SOUTH 

CAROLINA
In effect since May 15, 1946 

WATCHERS AT POLLS
49. The right is hereby given 

to any candidate to name and ap­
point a watcher for any poll that 
he may desire, the right to be

CIVIL CODE OF SOUTH 
CAROLINA

In effect on April 13, 1944 
2366. TABULATION OF RE­

TURNS — RESULT OF PRI. 
MARY— STATE COMMITTEE
PROTESTS AND CONTESTS -  
APPEALS —  MAJORITY VOTE. 
— The protests and contests for 
county officers and members of the 
General Assembly shall be filed 
within two days after the day of 
the declaration by the county com­
mittee of the result o f the election 
with the chairman of the county 
committee, and said county com­
mittee shall hear and determine 
the same at its first meeting there­
after, which shall be held within 
five days after said protest or con­
test is filed. The state committee 
shall meet on the Tuesday after 
each primary or at such other time 
as may be designated by the chair­
man, to hear and decide protests 
and contests as to United States 
Senators, state officers, Congress­
men and solicitors: PROVIDED, 
that no member of either the coun­
ty committee or state committee 
shall act in any contest wherein 
his candidacy is acted on. The pro­
tests and contests for all officers, 
except county officers and members 
of the General Assembly, shall be 
filed within five days after the elec­
tion with the Chairman of the state 
committee.

CIVIL CODE OF SOUTH 
CAROLINA

In effect on April 13, 1944 
2395. ASSISTANCE TO IL­

LITERATE OR PHYSICALLY 
DISABLED VOTER.—No person 
shall be allowed within the guard 
rail except as hereinafter provided. 
If a voter cannot read or write, or



A p p e n d i x 2 7

granted by the County Committee, 
and upon its refusal to do so the 
entire matter shall be reviewed by 
the State Committee, and the ac­
tion taken by the State Committee 
shall be final.

RULES OP THE DEMOCRATIC 
PARTY OF SOUTH 

CAROLINA
In effect since May 15, 1946 

MUNICIPAL DEMOCRATIC 
CLUBS
44. Upon a petition of a repre­

sentative number of white Demo­
crats in any incorporated town or 
city in this State, being filed with 
the county chairman, there shall 
be organized a municipal Demo­
cratic club in such city or town. 
The Democratic club so organized 
shall hold a primary to nominate 
candidates for municipal offices. 
Such primary shall be conducted 
under such rules and regulations as

is physically disable, and by rea­
son thereof did not sign the enroll­
ment book, he may appeal to the 
managers for assistance, and the 
chairman o f the managers may ap­
point two o f the watchers repre­
senting different factions to assist 
him in preparing his ballot: PRO­
VIDED, after the voter’s ballot 
has been prepared the watchers so 
appointed shall immediately go be­
hind the guard rail.

2404. W A T C H E R S  IN 
COUNTIES WITH CITY OVER 
20,000 —  REGISTRATION IN 
CITIES OVER 20,000. —  Candi­
dates in all counties in which there 
is a city containing twenty thou­
sand inhabitants or more shall 
have the right to appoint a watcher 
at each polling place to look after 
the interest of such candidates. 
And in all cities of twenty thou­
sand inhabitants or more there 
shall be a party registration of 
voters under regulations to be pre­
scribed by the rules of the respec­
tive party.

CIVIL CODE OF SOUTH 
CAROLINA

In effect on April 13, 1944. 
PRIMARY ELECTION IN CIT­

IES OF 40,000 OR MORE
Section 2383. CLUBS AND 

CLUB DISTRICTS.
Section 2400. PENALTIES 

VIOLATE — OATHS ADMINIS­
TERED.

Section 2400-1. T I M E  — 
BOARD OF COMMISSIONERS 
OF ELECTION AND BOARD OF 
MANAGERS OF ELECTION 
CONDUCT —  DUTIES OF PO­
LITICAL PARTIES —  CHAL­
LENGE VOTERS —  CANDI­
DATES — BALLOTS —  VOTES



28 R ic e  et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

shall be prescribed by such munic­
ipal Democratic clubs:

Provided, however, the county 
chairman shall issue the call for 
such municipal Democratic club 
and act as chairman of such mu­
nicipal Democratic meeting until 
the group organize and elect a mu­
nicipal chairman and, provided, 
further, that such municipal Dem­
ocratic club shall conform to the 
general enrollment provisions, 
qualifications for membership, gen­
eral voting provisions, absentee en­
rollments and voting provisions, 
closing of club rolls, closing of en­
rollment books and opening and 
closing of polls as provided in 
these rules, but may make and 
provide such further rules, etc., 
for the conduct of its Democratic 
primaries as it may deem advis­
able.

RECEIVE ELECT —  SECOND 
PRIMARY —  DUTIES OF SU­
PERVISORS OF REGISTRA­
TION —  TIME REGISTER.—

Section 2400-2. GIVE AGE 
AND ADDRESS WHEN EN­
ROLLING —  RESIDE WITHIN 
CITY ENROLL OR VOTE.

Section 2400-3. RULES AND 
REGULATIONS APPLICABLE.

Section 2400-4. APPLICA­
TIO N -G EN ERAL ELECTION.

Section 2400-5. TIME—COM­
MISSIONERS OF ELECTION 
CONDUCT—DUTY OF POLITI- 
CAL PARTIES — VOTERS- 
CHALLENGE VOTES— CANDI­
DATES — SECOND PRIMARY. 
MARY.

Section 2400-6. BOOKS OF 
REGISTRATION.

Section 2400-7. ELECTION 
COMMISSIONERS — APPOINT­
M E N T-TE R M  — CITY EXECU­
TIVE COMMITTEE.

Section 2400-8. PARTY PRI­
MARY TO NOMINATE MAYOR 
OR COUNCILMEN — TIME -  
VOTERS —  OATH TO VOTE — 
REQUIREMENTS OF CANDI­
DATES— BALLOTS — NUMBER 
OF VOTES TO ELECT — SEC­
OND PRIMARY.

Section 2400-9. ENROLL­
MENT BOOKS —  WHEN OPEN 
— WHO ELIGIBLE TO ENROLL 
— ISSUE CERTIFICATES TO 
THOSE ENROLLED — PLACE 
OF BOOKS —  INSPECTION OF 
BOOKS — WHAT NAMES MAY 
BE PURGED — REQUIRE­
MENTS TO VOTE.

Section 2400-11. ENROLL­
MENT.

Section 2400-12. ENROLL­
MENT BOOKS

Section 2400-13. ENROLL­
MENT OATH

Section 2400-14. PENALTIES



A p p e n d i x 29

Section 2400-15. OFFICIAL 
CLUB ROLL

Section 2400-16. MANAGERS 
—DUTIES AS TO ENROLL­
MENT BOOKS AND BOXES.

Section 2400-17. BOOTHS
Section 2400-18. TABLE FOR 

MANAGERS
Section 2400-19. BALLOTS — 

CONTENTS —  NUMBERS — 
AMOUNT.

Section 2400-20. BALLOTS— 
DUTIES OF MANAGERS AS TO 
VOTING— SECOND.

Section 2400-21. PERSONS 
ASSIST IN VOTING.

Section 2400-22. PERSONS 
ADMIT TO POLLING PLACES 
AND CANVASS OF VOTE.

Section 2400-23. INTERFER­
ENCE WITH MANAGERS — 
OBSTRUCTION OF VOTING.

Section 2400-24. RETURNS.
Section 2400-25. P A R T Y  

RULES.
Section 2400-26. PENALTIES 

— OATH.
Section 2400-27. BOARD OF 

COMMISSIONERS OF ELEC­
TION —  APPOINTMENT — 
TERM — REMOVAL — VA­
CANCY —  COMPENSATION — 
Power —  CITY EXECUTIVE 
COMMITTEES.

Section 2400-28. PARTY PRI­
MARY NOMINATE CANDI­
DATES FOR MAYOR OR COUN­
CILMAN — HOW CONDUCT — 
TIME —  PERSONS VOTE — 
VOTER’S OATH —  CANDI­
DATES — BALLOTS —  VOTES 
NECESSARY ELECT —  SEC­
OND PRIMARY.

Section 2400-29. BOOKS OR 
ENROLLMENT —  E N R O L L ­
MENT OF PERSONS —  COR­
RECT — CERTIFY —  USE — 
PERSONS VOTE —  LOST.



30 R ic e  et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

RULES OF THE DEMOCRATIC 
PARTY OF SOUTH 

CAROLINA
In Effect Since May 15, 1946 

PENALTIES FOR VIOLATIONS
50. Each and every person, 

whether candidate who enters the 
primary or person who votes there­
in shall by said act or acts submit 
himself or herself to the rules of 
the party, and any such person 
who (a) has given or promised to 
give any sum of money or other 
valuable consideration to any other

Section 2400-30. QUALIFICA­
TIONS FOR PARTY MEMBER. 
SHIP — TAX RECEIPT NOT 
NECESSARY ENROLL VOTE 
IN PRIMARY.

Section 2400-31. ISSUE AB­
SENTEE BALLOTS TO PER­
SONS ABSENT OR UNABLE 
VOTE IN PERSON ON AC­
COUNT OF SICKNESS IN MU­
NICIPAL PRIMARIES, CITIES 
OF 6,000 TO 6,500 — AUTHOR­
IZED.

Section 2400-32. APPLICA­
TION FOR BALLOT.

Section 2400-33. DELIVERY 
OF BALLOT AND INSTRUC­
TIONS.

Section 2400-34. FORM OF 
COUPON.

Section 2400-35. MARKING 
AND MAILING OF BALLOT.

Section 2400-36. RECEIPT 
AND CUSTODY OF BALLOT 
FROM VOTER.

Section 2400-37. DELIVERY 
OF BALLOTS TO MANAGERS.

Section 2400-38. COUNTING 
OF BALLOTS.

Section 2400-39. CONSTRUC­
TION — DECISIONS OF EN­
ROLLMENT COMMITTEE OR 
CLUB SECRETARY AS TO PER­
SONS VOTE BY MAIL FINAL.

CIVIL CODE OF SOUTH 
CAROLINA

In Effect On April 13, 1944 
2400 PENALTIES VIOLATE -  

OATHS ADMINISTERED. 
Any person violating the pro­

visions o f this article other than 
swearing falsely, shall be guilty 
of a misdemeanor and fined not 
over five hundred ($500.00) dol­
lars, or imprisoned not over six 
(6) months, or both, at the discre­
tion of the court. Any person 
swearing falsely in any of the



A p p e n d i x 31

person in order to induce such 
other person to vote for or against 
any candidate in any primary; or 
(b) has received of another any 
sum of money or other valuable 
consideration for voting for or 
against any candidate in any pri­
mary; or (c) has voted more than 
once in the same primary; or; (d) 
has by threats or other form of 
intimidation procured or caused 
any other person to vote for or 
against any candidate in any pri­
mary; or (e) has sworn falsely at 
any primary in taking the pre­
scribed oath, or has impersonated 
any other person and taken the 
oath in his or her name, in order 
to vote in such primary; or (f) 
has sold, bartered, given away or 
treated any voter to any malt or 
intoxicating liquors for the pur­
pose of inducing such voter to vote 
for or against any candidate in 
any primary, or (g) who shall 
carry liquor within one hundred 
yards of any voting place during 
the hours of the primary for the 
purpose of selling same or influenc­
ing voters; or (h) who shall will­
fully receive any bribe, money or 
liquor as a consideration for the 
casting of any vote or votes; or 
(i) may be called up by the county 
executive committee of his or her 
county, and if  the charges are 
proven to the satisfaction of a 
three-fourths majority of that 
committee may be expelled or de­
barred from participating in Dem­
ocratic primaries for such period 
as may be determined by a three- 
fourths majority of said commit­
tee: provided, however, that no 
person shall be expelled or de­
barred from participating in Dem­
ocratic primaries except as fol­
lows: A written complaint signed

matters pertaining to primary elec­
tions shall be guilty of perjury, 
and punished as now provided by 
law for perjury. The officers and 
managers of all clubs, and mem­
bers of the state and county execu­
tive committees of political parties, 
organizations or associations, are 
hereby authorized to administer 
oaths in all matters relating to 
such primary elections, and to 
swear falsely before any of them, 
touching such matters shall be per­
jury. The said managers shall be 
sworn to conduct the election fairly 
and legally, and each voter shall 
be sworn as to his right to vote and 
that he has not voted before at 
said election.

PENALTIES FOR VIOLATIONS
— OATHS
2370 Any person violating the 

provisince of this article other 
than swearing falsely shall be 
guilty of a misdemeanor, and fined 
not over five hundred ($500) dol­
lars; or imprisoned not over six 
(6) months, or both, at the discre­
tion of the court. Any person 
swearing falsely in any of the mat­
ters pertaining to the primary elec­
tions shall be guilty of perjury and 
punished as now provided by law 
for perjury. The officers and man­
agers of all clubs, and members of 
the state and county executive com­
mittee of political parties, organi­
zations or associations, are hereby 
authorized to administer oaths in 
all matters relating to such pri­
mary elections, and to swear false­
ly before any of them touching 
such matters shall be perjury. The 
said managers shall be sworn to 
conduct the election fairly and le­
gally, and each voter shall be 
sworn as to his right to vote and



32 R ic e  et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

by the person preferring charges that he has not voted before at 
shall be filed with the county com- said election, 
mittee, charging the person with 
violating any one or more of the 
foregoing sections (a) through (h) 
of this rule and thereafter said 
county executive committee shall 
fix a date for a hearing on said 
complaint and shall give the ac­
cused offenders at least ten (10) 
days written notice o f the place 
and time of such hearing, together 
with a copy of the charge as filed.
At such hearing the accused of­
fender shall have the right to be 
heard in person, or by counsel, and 
in the event the charges are proven 
to the satisfaction of a three- 
fourths majority of that commit­
tee such offender may be expelled 
or debarred from participating in 
the Democratic primaries for such 
period of time as may be deter­
mined by a three-fourths majority 
of said committee: Provided, how­
ever, That any person so expelled 
or debarred may appeal to the 
State Executive Committee, whose 
decision shall be final.

RULES OF THE DEMOCRATIC CIVIL CODE OF SOUTH

In Effect Since May 15, 1946 
SECRETARIES AND 

ABSENTEE BALLOTS
51. No person shall serve as 

secretary of the county committee 
or secretary of the State Commit­
tee in any primary where he is an NONE
opposed candidate and the secre­
tary of the county committee shall 
file with the county chairman, four 
days before the primary a list of 
voters who have been sent absen­
tee ballots.

PARTY OF SOUTH 
CAROLINA

CAROLINA
In Effect On April 13, 1944



A p p e n d i x 33

r u l e s  o f  t h e  d e m o c r a t ic
PARTY OF SOUTH 

CAROLINA
In Effect Since May 15, 1946 

VOTING MACHINES
53. Any County Democratic 

executive Committee may, in its 
discretion, authorize the use of 
voting’ machines in any and all 
polling precincts in that county, 
which voting machines shall ade­
quately preserve the secrecy of bal­
lots and shall be sufficient in num­
ber to adequately care for the 
voters.

CIVIL CODE OF SOUTH 
CAROLINA

In Effect On April 13, 1944

NONE

Civil Action No. 1702 

STIPULATION

For the purpose of this action only and for no other 
purpose whatsoever and without waiving hut expressly re­
serving the rights of the defendants under their motion 
filed in this cause to strike certain portions of the Com­
plaint as irrelevant, redundant, argumentative or as plead­
ing matters of law, and without waiving but expressly re­
serving the rights of the Plaintiff and the Defendants to 
object to any of the facts herein stipulated on the ground 
of irrelevancy or redundancy, the attorneys for the Plain­
tiff and the attorneys for the Defendants hereby stipulate 
as follows:

1. All parties to this action, both Plaintiff and De­
fendants, are citizens of the United States and of the State 
of South Carolina and are resident and domiciled in said 
State.

2. The Plaintiff at all times material to this action was 
and is a duly and legally cpialified elector under the Con­
stitution and laws of the State of South Carolina, and sub­
ject to none of the disqualifications provided for voting un­
der the Constitution and laws of the State of South Caro­
lina.



34 R ic k  et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

3. Defendants, Clay Rice, Mrs. A. B. Parker, Leone 
Bennett, Mrs. Sam Carter, Jr., Charles Stork, Mrs. H. E. 
Snipes, Mrs. Earl Lightsey and Mrs. E. L. Koon, at all 
times material to this action, are and were managers of the 
Democratic Primary in Ward Nine Precinct, Richland 
County, South Carolina. Defendants, John I. Rice as Chair­
man, and Defendants, Lane L. Bonner, Anne Agnew, 
Charles S. Henry, R. Cliff Harper, Fred T. Harrell, J. W. 
Land, Jr., J. B. Heine, B. J. Engle, C. D. Wilson, J. L. 
Brazell, Frank L. Taylor, A. S. Coleman, B. F. Turner, 
J. L. Cotton, George N. Nungezer, C. E. Newman, H. F. 
McLendon, F. H. Livingston, Dell Booth, J. 0. Riley, J. W. 
Corman, D. T. Cloaninger, J. Y. Reese, C. P. Wingard, 
S. J. Kinsley, James H. Hammond, E. V. Neeley, D. F. 
Martin, Thomas E. Grigsby, F. N. Franklin, E. E. Dority, 
J. W. Ford, J. L. Sites, Ware Carnes, Mrs. F. H. Clark, 
Harold Douglas, J. W. Shealy, W. H. Koon, W. T. J. 
Lever, V. F. Fundeburk, W. F: Wheeler, W. J. Clark, A. B. 
Langley, J. E. Belser, Jr., G. C. Keefe, Clarence Richards, 
R. K. Gibson, D. M. Winters, J. F. Freeman, Kenneth R. 
Kreps, Ollie Mefford are members of the Richland County 
Democratic Executive Committee.

4. The Richland County Democratic Executive Com­
mittee represents the local county unit of the Democratic 
Party of South Carolina.

5. The primary purpose of the Democratic Party of 
South Carolina is the promotion “ of good government of 
our State”  according to the ideas of the members of the 
Party and in carrying out that purpose it conducts nom­
inating primaries and thereafter prints its ballots for use 
in the General Elections with the names of its nominees 
thereon which ballots are distributed by party officials and 
placed at the General Election precincts in South Caro­
lina for use by any electors who choose to use such ballot 
in voting in any such General Election in South Carolina.

6. The officials of the Democratic Party of South Caro­
lina and the officials of the Republican Party of South 
Carolina and the officials of other political parties of South 
Carolina prior to the General Election in November, 1946,



A p p e n d i x 35

each prepared and printed separate ballots showing the 
names of the nominees of their own party and distributed 
such ballots to the General Election polling places in the 
State of South Carolina for use, in the General Election 
of November, 1946, by any elector who might wish to use 
same in casting his or her vote in said General Election. 
In addition, ballots were cast and counted in said General 
Election for persons other than the nominees of any pol­
itical party as will be seen from the Supplemental Report 
of the Secretary of State of South Carolina attached hereto 
which report is correct and may be referred to without 
formal proof.

7. On the 13th day of August, 1946, there was held 
by the Democratic Party of South Carolina in the State 
of South Carolina and in Richland County of said state a 
Primary for nomination of Democratic nominees for the 
House of Representatives of the United States and various 
state offices.

8. The Plaintiff and about ten other qualified negro 
electors under the Constitution of the State of South Caro­
lina presented themselves on the 13th day of August, 1946, 
to the regular polling place of Ward Nine (9) Precinct in 
Richland County, South Carolina, of the Democratic Party 
of South Carolina, during the regular hours that the poll­
ing place was open and requested ballots and requested 
to be permitted to vote in said Democratic Nominating 
Primary. The Defendants, Clay Rice, Mrs. A. B. Parker, 
Leone Bennett, Mrs. Sam Carter, Jr., Charles Stork, Mrs! 
H. E. Snipes, Mrs. Earl Lightsey and Mrs. E. L. Koon, 
Primary Managers of said Ward Nine (9) Precinct re­
fused to permit them to vote in said Democratic nominat­
ing primary because they were not white Democrats and 
were not duly enrolled. In so refusing them to vote in said 
Democratic nominating primary such Primary Managers 
were acting pursuant to the rules and instructions of the 
Defendant, John I. Rice, acting as Chairman of the Rich­
land County Democratic Executive Committee and of the 
members of the Richland County Democratic Executive 
Committee who were acting pursuant to the rules adopted



by the Democratic Party of South Carolina on May 15, 
1946, which rule, among other things, limited membership 
and voting in said primary to white Democrats.

9. During the past three General Elections there have 
been various factions of so-called Democrats, viz., Regular 
Democrats, Southern Democrats, Progressive Democrats 
and there have been several factions of the so-called Repub­
licans, viz., Regular Republicans and Tolbert Republicans, 
all of whom have chosen their nominees and have printed 
and furnished ballots for use by any elector in the General 
Election in South Carolina with names of their nominees 
thereon. Any political party or any person may write or 
print and make available its or his own ballots for use in 
the General Election and any person can vote for any per­
son he chooses to vote for in any General Election whether 
or not such person is the nominee of any political party.

10. A  number of the Statewide Statutes formerly reg­
ulating the primaries of all political parties in South Car­
olina were repealed at the 1943 Session of the General As­
sembly of South Carolina effective June 1, 1944, and on 
April 20, 1944, the General Assembly of South Carolina, 
after a session of less than a week, passed one hundred and 
fifty acts repealing all existing statutes which contained 
any reference directly or indirectly to primary elections 
within the State, including an act calling for the repeal of 
Section 10 of Article II of the Constitution of South Caro­
lina 1895, the only Constitutional provision mentioning 
primary elections, and set in motion the machinery to re­
peal that provision. Subsequently, and on February 14, 
1945, the Constitution of South Carolina was so amended 
by Ratification of the General Assembly of South Carolina 
of said Constitutional Amendment.

11. That the copy of Rules of the Democratic Party of 
South Carolina dated May 15,1946 (corrected June 6,1946) 
attached to the Answer of Defendants, are the correct rules 
of the Democratic Party of South Carolina and have been 
in effect since May 15, i946.

36 R ice et al., A ppellants, v. Elmore, A ppellee



A ppendix 37

12. Since May 15, 1946, among the qualifications for 
club membership and voting in nominating primaries of 
the Democratic Party of South Carolina are—“ The appli­
cant for membership, or voter, shall be 18 years of age or 
shall become so before the succeeding General Election and 
be a White Democrat. He shall be a citizen of the United 
States and of this State and shall be able to read or write, 
and interpret the Constitution of this State ’ ’, the plaintiff 
at all times material herein was and is over 18 years of age, 
is a Negro, a citizen of the United States and of South 
Carolina and is able to read, write and interpret the Con­
stitution of South Carolina. The plaintiff was not qualified 
for membership in the Democratic Party of South Caro­
lina because he is not a White Democrat.

13. Neither the State of South Carolina, nor any of its 
political subdivisions pays any part whatsoever of the ex­
penses of the conduct of the Democratic Party of South 
Carolina or of any other political party or of any party 
primary.

14. Exhibit “ A ”  attached hereto consists of certain 
excerpts from the State Constitution of South Carolina 
and such excerpts are agreed to be correct but do not con­
tain all of the provisions of the State Constitution of South 
Carolina and any party to this action may quote from any 
provisions of the State Constitution of South Carolina.

15. Exhibit “ B ” , including tables one, two and three, 
hereto attached are agreed to be accurate and correct.

16. Exhibit “ C” , attached to the plaintiff’s original 
complaint is agreed to be accurate and correct.

17. In the Democratic primary of August, 1946, 290,223 
votes were cast for the office of Governor. In the Democratic 
primary held on September 3, 1946, 253,589 votes were 
cast for that same office. In the general election of Novem­
ber 12, 1946, there were 26,326 votes cast for the office of 
Governor.

18. Although the statute law of South Carolina re­
quires liquor stores to close on election days, the liquor



stores in South Carolina were not closed on August 13, 
1946, nor on September 3, 1946, the days the nominating 
primaries were held in South Carolina by the Democratic 
Party of South Carolina.

19. In General Election years, during the past twenty 
(20) years and up to and including 1946, the then existing 
Democratic Party of South Carolina prepared ballots giv­
ing only the names of its nominees for use in general elec­
tions by any elector who might choose to use same. These 
ballots were distributed by the then existing Democratic 
Party of South Carolina to all of the polling places through­
out the State of South Carolina in the subsecpient general 
elections.

20. Since 1900 every Governor, Member of the Gen­
eral Assembly, United States Representative and United 
States Senator of the State of South Carolina elected by 
the people of South Carolina in the general elections was 
a nominee of the then existing Democratic party of South 
Carolina.

21. During the past twenty-five years the Democratic 
party of South Carolina has been the only political party 
in South Carolina which has held state-wide primaries for 
nomination of candidates for federal and state offices. It 
is agreed that the term “ Democratic Party of South Caro­
lina”  used in Stipulation 21 means the Democratic Party 
of South Carolina in existence at the respective times state­
wide primaries were held.

22. The Democratic Party of South Carolina is not 
chartered under any law.

23. The attached ballots are correct samples of ballots 
available in Richland County, South Carolina, in the gen­
eral elections of 1944 and 1946; number one being a South­
ern Democratic Ballot for 1944; number two being a Re­
publican Ballot for 1944; number three being a Regular 
Democratic Ballot for 1944; number four being a Regular 
Democratic Ballot for Congress for 1946; and number five 
being a Republican Ballot for Congress for 1946.

38 R ice et a l.,  A ppellants, v . E lmore, A ppellee



A ppendix 39

24. The federal census shows that in many of the coun­
ties of South Carolina the Negroes outnumber the whites.

25. The Democratic Party of South Carolina has been 
since May 15, 1946, and still is, organized and set up and 
conducts its nominating primaries in accordance with the 
Rules of the Democratic Party of South Carolina adopted 
May 15,1946 (corrected June 6, 1946).

The foregoing are all of the material facts in this 
action and no testimony will be taken.

/ s /  HAROLD BOULWARE,
/ s /  THURGOOD MARSHALL, 

Attorneys for Plaintiff.
/ s /  CHRISTIE BENET,

• / s /  IRVINE F. BELSER,
Attorneys for Defendants.

Columbia, S. C.,
June 3, 1947.

Civil Action No. 1702

The court opened at Columbia, S. C., on June 4, 1947, 
at 10 a. m., Hon. J. Waties Waring, Presiding.

PRESENT
Ernest L. Allen, Clerk Norris M. Thomas, U. S.

Marshal
APPEARANCES: Same as June 3, 1947.
Upon the opening of the court Judge Waring requested 

the filing of a stipulation or oral testimony relative to the 
regulations of the Democratic Party in 1942 and 1944. Re­
sponsive thereto, the rules of the Democratic Party of 
South Carolina adopted May 20, 1942, were offered in evi­
dence as the court’s Exhibit No. 1, and a stipulation was 
filed as to the State Convention of May 15, 1946. Honor­
able William P. Baskin, Chairman of the Democratic 
Party of South Carolina was then called as a court wit­
ness and was sworn over the objection of counsel for the 
defendants.



40 R ice et al., A ppellants, v. Elmore, A ppellee

Upon conclusion of Mr. Baskin’s testimony, arguments 
were resumed with Mr. Benet for the defendants from 
11:55 a. m. to 12:41 p. m .; Thurgood Marshall, Esq. in re­
ply from 12:42 p. m. to 1 :10 p. m.

At the conclusions of arguments the Court granted 
leave to counsel to file additional briefs with the Clerk at 
Charleston, on or before June 16, 1947, with the condition 
that proposed Findings of Fact and Conclusions of Law 
accompany these briefs.

The court adjourned at 1:12 p. m. until 10:00 a. m. 
June 5, 1947.

ERNEST L. ALLEN, Clerk 
A TRUE COPY, ATTEST,

ERNEST L. ALLEN,
Clerk of U. S. District Court 
East. Dist. So. Carolina

TRANSCRIPT OF TESTIMONY 

Civil Action No. 1702
Columbia, S. C., June 3! and 4,1947.

B efore:
HON. J. WATTES WARING, U. S. DISTRICT 

JUDGE.
Appearances:

HAROLD R. BOULWARE, ESQ., of counsel, 
THURGOOD MARSHALL, ESQ., of counsel, and 
ROBERT L. CARTER, ESQ., of counsel, attorneys for 

the Plaintiff.
C. B. ELLIOTT, ESQ., of counsel,
IRVINE F. BELSER, ESQ., of counsel,
J. PERRIN ANDERSON, ESQ., of counsel,
W. BRANTLEY HARVEY, ESQ., of counsel, 
EDGAR A. BROWN, ESQ., of counsel,
CHRISTIE BENET, ESQ., of counsel,
W ILLIAM  P. BASKIN, ESQ., of counsel, and 
YANCEY A. McLEOD, ESQ., of counsel, attorneys for 

the Defendants.



A ppendix 41

The Co u r t : Elmore versus Rice and others. I under­
stand that a stipulation of counsel—counsel informed me 
that they were in the process of filing a stipulation in lieu 
of verbal testimony. Is that correct?

Mr. B o u lw a r e : That’s correct, sir.
The Co u r t : Well, it may be presented. I think it better 

be read in open Court.
Mr. B o u l w w a r e : Sir, before we read the stipulation, 

if the Court pleases, we have two pleadings we would like 
to correct. At the same time I would like to present my 
associate Mr. Thurgood Marshall, Avho is a member of the 
United States Circuit Court of Appeals, Fourth Circuit, 
also a member of the Maryland bar, a member of the United 
States District Court for the District of Maryland, and the 
United States Supreme Court. Your Honor", I move that 
he be admitted to this Court for the purposes of this case.

The Co u r t : Motion granted.
Mr. B oulware : Thank you, sir.
The Co u r t : A  correction of the pleadings, you say?

_ Mr. B oulware : Yes, sir, if your Honor, please. The 
plaintiff would like to withdraw exhibit D and resubmit it 
in a corrected form as plaintiff’s appendix A.

The Co u r t : Which is exhibit D?
Mr. B extet: If your Honor please, we have no objection 

to that with this exception—
The Court : One minute—which is exhibit D ?
Mr. B enet  : Comparison of the provisions of the Code 

and rules.
The Co u r t : Yes, the rules and Code.
Mr. B extet : We have no objection. In fact, we agreed 

with counsel that, subject to your Honor’s ruling, it could 
be done, except we wish it to show what date those com­
parisons were made.

The Co u r t : Y ou mean whether these are the present 
rules or not?

Mr. B extet : N o, sir, we haven’t had a chance to check 
them, and we know that some provisions of the Code which 
they have there came from the Code itself, and the sections 
have been amended. We wanted it clear what date that ap­
pendix was based on. Then we have an appendix we think



42 Rice et al., A ppellants, v. E lmore, A ppellee

will clear up any questions as to when particular statutes 
were repealed.

The Court : I think, with that qualification, the amend­
ment should be granted. Can you furnish that date noAv?

Mr. B oulware : On the amended Code of Laws of South 
Carolina, 1942.

The C ourt : Then the comparison between the excerpt 
from the rules and the excerpt from the statute is based 
on the 1942 Code?

M r. B o u l w a r e : T h a t’s right, your Honor.
The C o u r t : That answer your objection, Mr. Benet!
Mr. B e n e t : Not entirely. You see, there are certain 

provisions in the Code of 1942 which have been repealed 
and amended before this action was brought. They had only 
access to the Code; they haven’t got some amendments that 
came into the provisions and statutes they have set down 
from the Code.

The C o u r t : Y ou mean amendments subsequent to 
1942?

Mr. B e n e t : Yes, sir.
Mr. B oulware : If your Honor please, all that will be 

taken up in argument.
The C o u r t : I ’ll allow the amendment, with the provi­

sion all these are from the 1942 Code, and leave to you to 
show they have been amended. All these on the righthand 
side. Is this the schedule you are furnishing in lieu of ex­
hibit D?

Mr. B o u l w a r e : Yes, sir.
Mr. B enet  : One other thing, your Honor, we would re­

serve the right to make amendment to our answer if it is 
necessary, to cover any misstatement of fact as to these 
parallel—

The C o u r t : I ’ll allow that.
Mr. B o u l w a r e : The plaintiff would also like to with­

draw exhibit A  of the plaintiff’s complaint, and we’d like 
to have it attached to the stipulation which will be herein­
after referred to.

The C ourt : Exhibit A  contains excerpts from the—



A ppendix 43

Mr. B o u lw a r e : Constitution of South Carolina, 1895, 
and we would like to have it withdrawn, and have it sub­
mitted with the stipulation.

The C o u r t : Part of the stipulation?
Mr. B o u lw a r e : Yes, sir, but still referred to as ex­

hibit A.
Mr. B e n e t : We have no objection, your Honor, with 

the reservation we have not had time to* read the exhibit. 
We think it s right—haven’t had time to check this morn­
ing.

The Co u r t : You’ll have leave to file any objections or 
anything that is not correct.

Mr. B o u lw a r e : Plaintiff also wishes to submit appen­
dices B to I, which are tabulations of votes in the first pri- 
ary, first and second primaries from the years 1936 to 1946. 
If your Honor please, we also have appendix E. We have 
only one copy. We would ask the Court to allow us to sub­
mit it now and withdraw at the end of the case to have other 
photostatic copies made.

The Co u r t : What is that?
Mr. B o u l w a r e : They are tabulations of votes cast in 

the Democratic primary in South Carolina from 1936 to 
1946, and are admitted by oral stipulation to be correct.

The Co u r t : That’s admitted, M r. Benet?
Mr. B e n e t : We admit they are correct statements. We 

reserve the right to object to them as not responsive to the 
pleadings.

The Co u r t : I ’ll allow it, with that reservation. As to 
one of them, you say there are not sufficient copies ?

Mr. B o u l w a r e : Appendix E, sir. Throughout plain­
tiff’s complaint, tabulation of votes in the Democratic pri­
mary for the year 1940.

The Court : I ’d like when the exhibits are filed for them 
to stay here. How long will it take to have them photo­
stated?

Mr. B oulware : About two hours.
The Co u r t : You’ll have it done right here?
Mr. B o u l w a r e : Yes, sir.



The Co u r t : I ’ll allow it to be withdrawn for that pur­
pose. I  want them in right away though— want all exhibits 
and everything in.

Mr. B o u lw a r e : This is appendix E.
The Court : Any further preliminary matters ?
Mr. B o u lw a r e : That’s all, sir, for the plaintiff.
Mr. B e n e t : If your Honor please, we noted a motion 

before your Honor returnable last Monday in Charleston. 
In view of the fact that we have now reached an agreement 
with counsel on the other side, as to the stipulation for tes­
timony, we’ll not press that motion at this time. In other 
words, we withdraw the portion of it that asks for contin­
uance, and we will, unless your Honor would rather hear 
us, we’ll argue the other questions when they come up later 
in the case.

The Co u r t : I ’d rather try the whole case at one time. 
I think it ought to be done. I made up my mind if I was to 
continue on anything, I ’d continue everything.

Mr. B enet  : I want to say we had the finest cooperation 
with counsel on this stipulation. Both sides have worked 
on it. We hope it has all the essentials which your Honor 
would need in determining the case. At the time we noted 
the motion returnable Monday, which your Honor couldn’t 
hear at that time, in one of the supporting affidavits we 
stated that Mr. Baskin, who is one of the counsel, had suc­
ceeded Mr. Pierce as Chairman of the Democratic Party, 
Mr. Pierce having died since action was brought. In that 
stage of the case, Mr. Baskin felt, and we agreed, that 
he being now State Chairman, should withdraw as counsel 
because of the possibility that he would have to take the 
stand as a witness. In view of the fact that we have agreed 
on witnesses, and that no other testimony be offered, we 
would like to ask your Honor to let us withdraw that state­
ment, and let Mr. Baskin continue as counsel in the case.

The C ourt : Statement withdrawn, and Mr. Baskin will 
continue as counsel in the case.

Mr. B e n e t : And Mr. Yancey A. McLeod of the Bich- 
land County bar.

The C o u r t : Add Mr. McLeod’s name.

44 Rice et al., A ppellants, v. Elmore, A ppellee



A ppendix 45

Mr. B enet  : We reserve and do not waive the matters 
raised in our motion to strike, and will later object to all 
stipulations which are not responsive to the allegations of 
the complaint if your Honor had granted our request to 
strike.

The Co u r t : Let the record show that.
Mr. B e n e t : I think that’s all, sir. Just one thing more: 

We have an appendix. We agreed with counsel they could 
put in a parallel column document as appendix to the com­
plaint, and they agreed with us, subject to your Honor’s 
approval, that we might put in an appendix to our answer, 
giving our comparison of the rules and Code or Constitu­
tion. W e’d like your Honor’s approval.

The Co u r t : I ’ll allow that. When is it to be done?
Mr. B e n e t : We have it ready, hut we are checking one 

or two items. We ’ll have it ready in the morning, in time__
The Court : Counsel for the plaintiff understand that, 

and no objection?
Mr. M a r s h a l l : Yes, sir, the same rights—we reserve 

the same rights to their exhibits as they to ours.
Mr. B e n e t : We reserve ours to the complaint—as now 

filed does not constitute a cause of action. We will argue 
that in the process of the case.

The Court: Yes, sir.
Mr. B e n e t : Just one matter of information, your 

Honor: Attached to the original stipulation which has been 
signed and will be handed your Honor, of course there are 
certain ballots, in what we gave counsel and what we have 
ourselves and what we’ll have to refer to. We simply have 
a typewritten copy of those ballots— don’t have enough 
ballots to attach the same to the stipulation given then—

The Co u r t : Those are printed ballots—ballots used?
Mr. B e n e t : Yes, sir. Counsel understands—
Mr. M a r sh a l l : Yes, sir, I Avonder if we could agree for 

the sake of the record, the thing is very interesting, the 
size of them— showing they all are the same size and met 
the requirements of the law ?

The Co u r t : Yes, I think you are entitled to that. Let 
it he stated that the copies of the ballots are the same size 
and shape as the ballots themselves that were put in.



Mr. B enet  : If your Honor please, the statute requires 
that the ballots in the general election shall be printed on 
white paper of a certain weight. It does not state the length 
of the ballot; your Honor thoroughly understands that. 
There may be one person voted for it, may be eight or ten 
—the length of the ballot is not the same—but it is a fact 
that the type of ballot, white paper, with the printing of 
the office and of the man running and the width, are pro­
vided by the statute, but the length is not covered.

M r. M a r sh a l l : That’s perfectly all right.
The C o u r t : Let that statement go in the record. It 

satisfies you?
Mr. B o u lw a r e : Yes, sir.
Mr. B e n e t : That’s the general election ballot we are 

talking about, your Honor.
The Co u r t : Let it stand.
Mr. B e n e t : I think that’s all the preliminary state­

ments we want to make.
The C ourt : The preliminary statements having been 

disposed of, we’ll go into testimony by way of stipulation, 
as I understand it, Let one of counsel read. Furnish me 
with a copy, please, or the original. (The Court was handed 
a copy by counsel.)

The Co u r t : This has been signed?
A ttorneys : Yes, sir.
The C o u r t : I want it initialed. (Counsel initial.)
The stipulation read and copied at p ages___ of this

Appendix.
The Court : It isn’t necessary to read the exhibits. I ’ve 

looked them over and seen them.
Mr. B e n e t : Your Honor, at this time, in order that 

your Honor may be fully advised of our position, we ob­
ject to 16, stipulation 16, as being pertinent or responsive 
to the allegations of the complaint, that is the exhibit at­
tached to the complaint, giving Governor Johnston’s state­
ment, and we move to have that stricken, which your Honor 
did not strike.

The C ourt : You take the position that it is improperly 
before me, or that it is incorrect?

46 R ice et al., A ppellants, v. E lmore, A ppellee



A ppendix 47

Mr. B e n e t : N o, sir, we don’t say—it ’s correct—we 
corrected—

The Co u r t : If it ’s correct, I ’ll allow it to stand.
Mr. B e n e t : Then, your Honor, we want to also object 

to No. 20, stipulation No. 20, which says since 1900 every 
governor has been a member of the then existing Demo­
cratic Party.

The Court : This says nominee.
Mr. B e n e t : Yes, sir, nominee. We don’t think that 

has any bearing on the issues of the case, any reference 
we wish stricken from the complaint. We just want to call 
your Honor’s attention to the fact that we object to this 
as not being competent or pertinent to the action.

The Co u r t : At this time motion refused.
Mr. M a r sh a l l : We object to 24, sir, which is com­

pletely immaterial, has no bearing whatsoever on this case.
The C o u r t : Well, I don’t know at this time whether 

it does or not. It seems to me—I thought perhaps you had 
put that in there.

Mr. M a r sh a l l : We most certainly did not.
The C o u r t : I ’m going to leave it in.
Mr. M a r sh a l l : All right, sir.
The Co u r t : Well, I  have the stipulation before me. 

As I understand then, there’s no further testimony. Neither 
side desires to put in any testimony? What says plaintiff?

M r. B o u l w a r e : N o, sir, no further testimony.
The C o u r t : Defense?
M r. B e n e t : N o, sir, we have no testimony.
The Co u r t : Gentlemen, if you desire to proceed with 

the argument, I ’ll hear you. Now at the pretrial confer­
ence I requested the filing of briefs. To date, neither side 
has followed that request. I wished to have an opportunity 
of reading them before coming here. None of counsel has 
done it.

You may proceed with the argument.
Mr. B enet  : With regard to the brief which defendants 

are now filing, since I appeared before your Honor in 
Charleston last week, we have done nothing but work on 
this ease, and I ’ll say counsel for the other side has done 
the same thing. The main thing was to get the stipulation,



48 Rice et al., A ppellants, v . Elmore, A ppellee

and it took a great deal of time and discussion. We were 
not able, either one of us, and I ’ll state that for counsel 
on the other side—and it was not possible for us to have 
briefs written in an intelligent form until we agreed on 
the stipulation. That’s why we, and I think in fairness to 
the other side, they, have not furnished you with a copy 
earlier. The stipulation was only filed this morning. We 
are filing the brief, original and a duplicate, with your 
Honor, but we’ll have certain changes on the last page in 
view of one or two things filed in the stipulation this morn­
ing. |

Mr. B oulware : We have submitted the original and a 
copy.

The Co u r t : Have you exchanged briefs'? I t ’s custom­
ary here for each side to furnish the other with a copy. 
Have you a copy for the plaintiff’s counsel? I think you’d 
better give him one now. Has the plaintiff got one for the 
defense?

Mr. B oulware : Yes, sir.
The C o u r t : Hand it to them.
Mr. B enet  : I meant that copy to be for counsel. I didn’t 

think you’d care for a copy.
One thing more, your Honor, at this time. As your 

Honor sees, this is the first time we have seen each other’s 
briefs. W e ’d like your Honor to give us a reasonable time 
to file—

The Co u r t : After I hear oral argument, I ’ll give yon 
time to file briefs, and attach to the briefs proposed find­
ings of fact and conclusions of law for use in the final de­
cision in accordance with the civil rules requiring findings 
of fact and conclusions of law.

(Messrs. Boulware and Marshall argued to the Court 
in behalf of the plaintiff.)

(Mr. Belser argued to the Court in behalf of the de­
fendants. During the course of Mr. Belser’s argument, 
the Court sa id ):

The Co u r t : I notice that the statutes regulating pri­
maries in this state were repealed in April or May, April 
I think it was, 1944. The rules of the party which I have 
before me, adopted in May, 1946, I think—what were the



A ppendix 49

rules of the party between those dates, and how did the 
convention adopt the rules in the 1946 convention? I ’d like 
information on that.

(The Court recessed until 3 p. m., June 3, 1947.)

CONTINUED AT AFTERNOON SESSION, 
JUNE 3, 1947, 3 P. M.

(Mr. Belser continued his argument to the Court in 
behalf of the defendants. Mr. Elliott argued to the Court 
in behalf of the defendants.)

(The Court adjourned until June 4,1947, at 10 a. m.)

CONTINUED AT MORNING SESSION,
JUNE 4, 1947, 10 A. M.

Mr. B e n e t : Just before we adjourned yesterday, your 
Honor asked about the rules of 1944. Mr. Baskin has a stip­
ulation, which he explained—

The Co u r t : I wanted to amplify that. Now this case 
is a case that ought to decide the primary question for 
South Carolina. This case, I assume, is going to the Su­
preme Court of the United States irrespective of what 
might happen. Therefore, I think we ought to have a com­
plete, clear-cut, frank record. Now, I think the records show 
me that a stipulation or statement can’t be agreed upon— 
I’ll call for testimony—that the primary organization is 
and was substantially the same before and after the en­
actment of the statute—isn’t that a fact?

Mr. B e n e t : N o, sir.
The Co u r t : All right, I want some testimony on the 

subject.
Mr. B e n e t : I ’m going into—
The Co u r t : I want testimony—I don’t want argument. 

It may not be true. I think you ’ll have to put somebody up 
who’s familiar with the organization—a member of the 
party in 1942.

Mr. B e n e t : 1942?
The Co u r t : All right. Mr. Benet, if you can’t stipulate 

on that, I want testimony.



50 Rice et al., A ppellants, v. Elmore, A ppellee

Mr. B e n e t : If your Honor please, we haven’t talked 
to counsel on the other side about that stipulation.

The C ourt : Put somebody up.
Mr. B enet  : The burden is on the plaintiff.
The Co u r t : I can almost take judicial notice of it. I 

thought everybody knew how an election was run—
Mr. B e n e t : We haven’t the slightest objection. 1942, 

1944, 1946 already—
The C ourt : Have you got 1942 and 1944 there ?
Mr. B e n e t : Haven’t 1942.
The Co u r t : Y ou say Mr. Baskin stipulated—Mr. Bas­

kin is going to make the statement?
Mr. B e n e t : He was going to make a statement, your 

Honor, in regard to a stipulation we reached with the other 
side—

The Co u r t : I  think h e ’d better take the stand, put in 
testimony. I  don ’t see why we don ’t have facts.

Mr. B e n e t : We haven’t the slightest objection to—
The C o u r t : I ’m not suggesting you are concealing 

facts, hut I want to know. There’s no use to have another 
case later. I thought we all knew how a primary was run. 
I t ’s very serious as to whether or not it ’s legal or illegal. 
I ’m not saying it is illegal, but isn’t it the same organiza­
tion ?

Mr. B e n e t : I didn’t quite catch the last statement?
The Co u r t : Isn’t it the same organization?
Mr. B e n e t : N o, sir, it is not. You can see distinctly on 

the parallels we set up here on the statutes and the rules. 
The statutes, of course, are in evidence, don’t require any 
proof, and the rules have been admitted as correct, which 
are attached to our answer, ’46 rules.

The Co u r t : I want a statement as to the convention 
held in 1942—was there not?

Mr. B e n e t : Yes, sir.
The Court : Let it be' admitted on the record. And 

following that convention there was a primary from which 
officers are selected, is that correct?

Mr. B e n e t : 1942? Yes.
The C ourt : Were there club meetings held in accord­

ance with the rules in 1944? Were there club meetings held



A ppendix 51

in accordance with the rules in 1944— 1942 rules in 1944— 
do you want to make this statement or not?

Mr. B ask in  : Yes, sir.
The Co u r t : I think you’d better take the stand, Mr. 

Baskin.
Mr. B a s k in : All right, sir.
Mr. B e n e t : If your Honor please, we think that the 

burden of proof in this case is on the plaintiff.
The Co u r t : Oh, I think so, too, but I ’m sitting here in 

a court of equity. I want facts.
Mr. B e n e t : I s your Honor calling Mr. Baskin, or is 

plaintiff calling him?
The Court : I ’m calling him.
Mr. M a r sh a l l : I t ’s perfectly agreeable if Mr. Benet 

wants for the record to show that we call him as an adverse 
witness—he is, obviously.

The C o u r t : I think I ’ll call him as the Court’s witness. 
I want facts. Take the stand, Mr. Baskin.

Mr. B e n e t : In order to protect our rights in the mat­
ter, we have come here to meet the complaint as pitched by 
the plaintiff, which is on actions in 1946, and we, therefore, 
object to testimony going back into what happened in years 
prior thereto.

The C o u r t : Let the record show the objection. Let the 
record show the Court overruled the objection and called 
Mr. Baskin as a witness for the Court.

William P. Baskin, sworn:
D irect E xa m in a tio n

Q. M. Baskin, you are a resident and citizen of South 
Carolina ?

A. I am, sir.
Q. You are a member of the State Senate?
A. I am, sir.
Q. How long have you been a member?
A. Ten years.
Q. You are a member of the Democratic party?
A. I am, sir.
Q. Were you such in 1942?
A. I was.



Q. Have you or can you obtain for me a copy of the 
rules of the party of 1942 ?

A. Yes, sir, I have a copy.
Q. You have a copy?
A. Yes, sir, it is a marked copy, which is my own per­

sonal copy, but I have a copy.
The Co u r t : Will you furnish it to the Court?
(The witness handed the Court papers.)
The Co u r t : 1942. Mark that in evidence.
Q. Now, following this, the convention of 1942, was 

there a primary held in South Carolina?
A. There was.
Q. In which candidates ran and officers were selected? 
A. Yes, sir.
Q. Thereafter, in 1944, were club meetings held in ac­

cordance with the party rules throughout the State?
A. In 1944?
A. Yes, in accordance with the party rules.
Q. In accordance with the party rules, were club meet­

ings held?
A. Yes, sir.
Q. Delegates selected for the county conventions?
A. Yes.
Q. Officers of the club elected?
A. Yes, sir.
Q. County conventions held and delegates and officers 

selected for the State?
A. Yes, sir.
Q. A  State convention held?
A. Yes, sir.
Q. And rules adopted?
A. Yes, sir.
Q. Officers for the party selected?
A. Yes, sir.
Q. And were rules published in 1944?
A. There were, sir.
Q. And have you a copy of that?
A. Yes, sir, that was the stipulation.
(Witness produces papers.)
The Court : Put those in.

52 R ick et al., A ppellants, v. Elmore, A ppellee



A ppendix 53

Clerk  : You wish to file this additional stipulation?
Mr. B a s k in : Yes, sir.
The Court : Let me see it.
Q. Were you a member of both those 1942 and 1944 

conventions ?
A. I was not a member of either of the conventions.
Q. You were not a delegate?
A. I was not a delegate.
Q. You are familiar with them, however?
A. Yes, sir, I was a member of it—
Q. Following the 1944 convention, and in accordance 

with the rules, were primaries held for the selection of 
nominees ?

A. Yes, under the 1944 rules.
Q. Under the 1944 rules, and those candidates were 

selected as Democratic nominees?
A. Yes, sir.
Q. And ran the general election?
A. They didn’t run, Judge, because nobody runs a gen­

eral election.
Q. They were elected in the general election?
A. Yes, sir.
Q. And following that, in 1946, did the clubs meet?
A. Yes, sir, under the 1944 rules.
Q. Under the 1944 rules. Were the meetings of the 

clubs substantially as they had always been?
A. There were a number of differences in the 1944 

rules.
Q. There were a number of differences in the 1944 

rules as to the qualifications for voting??
A. The qualifications for voting were different from 

the previous rules.
Q. As to age?
A. No, sir, not in 1944, but in 1946 they were.
Q. In 1944, what were the differences?
A. I would have to check them for you.
Q. I mean anything material?
A. Yes, sir, I  think in 1944 a provision was put in for— 

pledged to support the nominees of that primary.
Q. What?



54 Rice et al., A ppellants, v. Elmore, A ppellee

A. Pledged to support the nominees of that primary.
Q. A  pledge to support the nominees?
A. Yes, sir.
Q. The same method for officers elected, executive 

committeemen, electing delegates to the convention—the 
county conventions and state conventions—the same ma­
chinery, in other words, was used?

A. The same general method.
Q. The same general method, and then the 1946 con­

vention, state convention, convened, and adopted these 1946 
rules ?

A. That is a fact.
Q. And they are here now—under which the party op­

erates ?
A. That is correct.
Q. Entirely free from state statute?
A. Yes, sir, entirely free.
Q. Any questions for the witness on behalf of the plain­

tiff?
M r. M a r sh a l l : N o, sir.
The Court : Any questions on behalf of the defendants!
Mr. B e n e t : Will you indulge me one moment?
The Court : If you gentlemen want a few moments for 

consultation, I have no objection.
Mr. B e n e t : Yes, sir, we’d be glad for it.
Mr. M a r sh a l l : We want to try to check these rules, 

if your Honor please.
(All counsel confer.)
The Court : Does plaintiff waive cross examination or 

desire it?
Mr. M arshall : I want to ask one or two questions.
The C ourt : Go ahead.

Cross E xa m in a tio n

By Mr. M a r sh a l l :
Q. I want to ask Senator Baskin, after looking at the 

’42 rules, at 32, as to whether or not the oath for voters 
wasn’t inconsistent in the ’42 rules, page 10?

A. Page 10?
Q. Page 10.



A ppendix 55

A. Rule 32.
The Co u r t : What is it—1942 or 1944?
Mr. M arshall: 1942 rules, sir.
The Court : 1942.
A. I pledge myself to abide by the results of the pri­

mary and support the nominees of such party, state and 
national,—

Q. Were the 1942 rules changed, the oath each voter 
took in the primary election in 1942 ?

A. Yes, I just hadn’t looked back at them.
Q. The Court : What were the 1944 rules in regard to 

the national?
Clerk : The ’44 are attached to the last stipulation.
Mr. Ba s k in : If you let me pick another pamphlet I 

have, I ’ll tell you the differences.
The Co u r t : Certainly.
(Witness consults papers.)

■ Mr. B askin : In the oath for candidates, the 1942 rules 
took out the word “ election” .

The Court : Which rules ?
Mr. B a s k in : 1944.
The Co u r t : 1944— “ election” ?
Mr. B a s k in : The 1944 rules referred to primary elec­

tions—referred to statute— the rules of 1944 took out the 
word “ election” — changed the date from July to August— 
and took out “ of the party, state and national” — so that the 
rule read, “ support the nominee of the primary” .

The Court : Just nominee of this primary?
Mr. B a s k in : Of this primary, yes, sir. There were 

numerous changes in 1944 because of the statutes coming 
off the books, and, in fact, the party was an association 
without statutory control.

Mr. M arshall : If your Honor pleases, our copy 
doesn’t agree with it, I ’m talking about the 1944 rules. Rule 
No. 32.

The C ourt : Suppose you look at that, 1944, look at the 
rule book— the clerk will give it to you.

Mr. B a s k in : N ow, where is it?
Mr. M arshall : Rule 32, appearing on page 9.



66 R ice et al., A ppellants, v. E lmore, A ppellee

Mr. B a s k in : The 1944 rule read, “ I do solemnly swear 
that I am a resident of this club district and am duly quali­
fied to vote at this primary according to the rules of the 
Democratic party, and that I have not voted before at this 
election, and pledge myself to support the nominees of this 
primary. ’ ’

Q. Has not the rule of 1946—is it not true that 1946 is 
exactly the same?

The C ourt : Show him the 1946 rules.
Mr. B a s k in : It is the same, (consulting papers)
Q. The same. So that in 1942, 1944 and 1946, the oath 

for voters practically was the same ?
A. No, it is not.
The Co u r t : He has indicated a change from 1942 to 

1944.
Q. Change in the one word “ election”  in the first sen­

tence.
A. No— addition—the ’42 rule required the voter to 

support the nominee in the ensuing general election. The 
’44 and ’46 rules required them only to support the nominee 
of the primary.

Mr. M a r sh a l l : That is all.
The C o u r t : Any questions?

E xamination

B y  Mr. B e n e t .
Q. Now, Mr. Baskin, in regard to the calling of the 1944 

convention, or meeting, will you state to the Court how that 
was called?

A. After the session in 1944, when all the statutes were 
removed governing primary elections, and the general as­
sembly introduced the act to repeal the constitutional pro­
vision, article 2, section 10, the party rules then no further 
had any statutory support, and the chairman, Mr. Smith, 
asked—

The Co u r t : Mr. Winchester Smith?
Mr. B a s k in : Yes, sir.
A. (cont) ask the former party officials and members 

to go ahead and call club meetings under our rules without 
statutory help. Those club meetings were called, and they



A ppendix 57

did come to the convention of 1944 which was held in May, 
after the statutes were repealed in April, and that conven­
tion organized itself into the Democratic party of South 
Carolina. There is no holdover from one to the other.

Q. As a matter of fact, wasn’t that convention faced 
with the facts that there were no statutes then applicable 
to the conduct of primaries by any parties'?

A. It was, sir, and that convention made numerous 
changes in the rules.

Q. In its rules, that is?
A. Yes, sir, in its rules.
Q. The rules of the Democratic party?
A. Yes, sir, even going so far as to remove a number 

of rules with reference to municipal primaries, and setting 
up a short, municipal general rule. It also provided for vot­
ing machines in primary elections, which the statutes had 
not previously authorized, and other things.

Q. What about absentee ballots, if anything?
A. Let me see that, (indicating) It provided a method 

for absentee enrollment and absentee ballot.
Q. Had there been any such provision in the rules prior 

to that time ?
A. Yes, sir, there was a provision in the prior rules, 

but it was changed entirely.
Q. Well, that, as a matter of fact—
A. Changed materially rather, not entirely.
Q. That was largely due to taking care of men in the 

service, wasn’t it?
A. Correct, sir.
Q. Now, Mr. Baskin, I ’ll ask you to look at the first 

paragraph in the rules of 1944, No. 1—let’s see the ’44 rules 
—paragraph 1, doesn’t that say that say at the convention 
of the Democratic party of the State of South Carolina be­
gun and holden at Columbia on the 17th day of May in the 
year 1944, the following rules are ordained and established 
in place of the constitution and rules of the party hereto­
fore in force, which are hereby declared null and void?

A. They do, sir.



58 R ice et al., A ppellants, v. Elmore, A ppellee

Q. State whether or not any action as far as you know 
was taken under the preceding rules after that convention 
of 1944?

A. After the convention of 1944? No act of the party 
was taken under the preceding rules.

Q. All right, sir. Under the rules of the party—that is 
the 1946 rules—turn to the answer there—what rules are 
those ?

A. Those are the ’46 rules.
Q. The ’46 rules. What preamble, if any, is there to 

those rules?
A. That has, at the convention of the Democratic party 

of the State of South Carolina begun and holden at Colum­
bia on the 15th day of May in the year 1946, the following 
rules are ordained and established in place of the constitu­
tion and rules of the party heretofore in force, which are 
hereby declared null and void.

Q. Since those rules were adopted at that time, has any 
action, so far as you know, been taken under the rules of 
1944?

A. None whatsoever, sir.
Q. So, the Democratic party of South Carolina today, 

of which you are chairman, 1 understood you to testify?
A. I am, sir.
Q. Is set up and established under what rules?
A. The ’46 rules.
Q. The 1946 rules?
A. Yes, sir.
Q. And the rules of 1942 and 1944 have no application 

to it, the set up of the Democratic party of today?
A. Not a bit, sir.
The C ourt : Let me interrupt that, the 1946 rules has 

something about corrected in June—what does that mean?
Mr. B a sk in  : After the convention, the secretary next 

day published the 1946 rules. Immediately when they came 
to my desk, I realized there were errors, and he was called—

The C ourt : Clerical errors ?
Mr. B a s k in : Clerical errors, yes, sir,— corrections.
The Co u r t : Corrections as to the printing of it?
Mr. B a sk in  : Yes, sir.



A ppendix 59

Q. As far as the 1946 rules are concerned, what pen­
alty, or provision, if any, is included in that rule or in those 
rules, for non-observance or violation of those rules?

A. We have only in our rules today the penalty of ex­
pulsion from the party.

Q. Before the statutes were repealed, what penalty was 
there ?

A. Every penalty for perjury or fraud—penalties of 
jail or fine, penalties of the Courts.

Q. None of those are now included?
A. None.
Q. Or pertinent to the operation of the South Carolina 

Democratic party under the rules of 1946, which are the 
controlling rules at this time?

A. That’s correct, sir.
Q. What about voting machines ?
A. The rules of 1946 permit voting machines in pri­

maries.
Q. Was there such a provision heretofore?
A. There was none.
Q. What about age qualifications wdien the statutes 

were in force?
A. The ’46 rules permit a person eighteen years of age 

to vote. All previous rules confined it to twenty-one. The 
’46 rules add one other thing, Mr. Benet, that was that a 
person must be able to read and write or interpret the con­
stitution.

The Co u r t : Y ou say that was added in ’46?
Mr. B a s k in : Yes, sir.
The Co u r t : W asn’t that in the old rules?
Mr. B a sk in  : No, sir.
The C o u r t : It was in the statutes?
Mr. B a s k in : N o, sir.

Mr. B a s k in : What was the question, please?
The C ourt : I asked if the old rules or statutes—
Mr. B a sk in  : Not in the primary statutes, I ’m not posi­

tive about the general election statutes.
Q. Mr. Baskin, in the 1946 rules now in effect, is there 

a provision for absentee enrollment?



60 R ice et at, A ppellants, v. E lmoke, A ppellee

A. There is, sir. I ’d like to have the paper I prepared, 
(consults papers)

Mr. B e n e t : If your Honor will permit me, I ’d like to 
hand up the appendix—we have got a parallel column here, 
sir, and I think it might make it a little clearer on the ques­
tions I am going to ask.

Mr. B a s k in : We gave them copies.
Q. Now, Mr. Baskin, you have a copy of the defend­

ants’ appendix in your hand, have you not?
The Court : Stipulated that should be filed, was it not?
Mr. M a r sh a l l : Yes, sir, we filed one stipulation—could 

file one— and both sides reserving, respectively.
Q. In the first one, speaking of qualifications for club 

membership, rule No. 6, you have already testified that the 
applicant for membership or voter should be eighteen years 
of age, and so forth, is that correct?

A. That’s correct.
Q. Now, in the parallel column is section 2355 of the 

civil Code, what did it state should be the age ?
A. Twenty-one years of age.
Q. Twenty-one years of age. Now, at the bottom of the 

code section is a provision: provided, that the state conven­
tion of any political party, organization or association in 
this State shall have the power and authority to add to or 
to limit the qualifications for membership in such party, 
organization or association, and for voting at the primary 
elections thereof, if such qualifications so added or limited 
do not conflict with the provisions herein as to the age and 
residence of members and voters. Is there any such provi­
sions in the rules ?

A. None.
Q. None whatsoever. On the next page, on absentee 

enrollment, do the rules provide under Section 10 (a) any 
person, who because of absence from the State or illness, 
is unable to go—may enroll?

A. They do.
Q. Any such provision in the code?
A. There was not.



A ppendix 61

Q- There was not. As to the oath for candidates under 
the 46 rules, what have you to say as to the oath set out 
there, under 26 (a), (b) and (c) of the rules?

A. They were in the rules but no statutes.
Q. No statutes on that. On the next, as to oath to be 

taken by voters?
A. Let me explain myself, When I say no statutes, I 

mean no statutes in April 1944, prior to the session.
By the Court :
Q. What about prior to that?
A. I don’t know of any prior statute, Judge, but we 

had limited it to a definite date, which is the date before 
the special session.

E xam in a tio n
By Mr. B en e t , cont.:
Q. In other words, in order that it may be clear on the 

record, Mr. Baskin, all the rules you are talking about here, 
May, 1946, were amended at that time on account of cleri­
cal errors ?

A. Yes, sir.
Q. The statutes you are talking about were in effect 

April 13,1944, is that correct?
A. That is correct.
Q. As to rule 32, oath to be taken by voters, contrast 

that with the code section 2365.
A. The rule provided that the managers at each box 

at primaries shall require every voter to pledge himself to 
abide by the rules of the primary and to take the following 
oath and pledge: 1 do solemnly swear that I am a resident 
of this club district and am duly qualified to vote at this 
primary according to the rules of the Democratic party, 
and that I have not voted before at this election, and pledge 
myself to support the nominees of this primary.

Q. What did the statutes require?
A. The statute did not have that provision, and pledge 

myself to support the nominees of this primary.
The Co u r t : The statute did or did not?
Mr. B a sk in  : Did not.
Mr. B enet  : Did not.
The Co u r t : Had no oath?



Mr. B a s k i n  : Had an oath—it had no provision—this 
oath was, “ I do solmnly swear that I am a resident of this 
club district and am duly qualified to vote at this election, 
and that I have not voted before at this election. ’ ’

Q. You point out that the rules add, “ and pledge my­
self to support the nominees of this primary.”  All right. 
Now, as to rule 33, paragraph 2, on unopposed candidates 
omitted from ballot. What does the rule require or pro­
vide?

A. Provides that county committees and the state com­
mittee are directed to declare any candidates without op­
position nominees of the party without having placed the 
names of such unopposed candidates on the ballots.

Q. Any statutory provision to that effect?
A. None.
Q. Absentee voting, 47 (i), what about that?
A. Provides that the Secretary of the County Commit­

tee shall file with the County Chairman, not later than Fri­
day noon next preceding the primary, a complete list of all 
absentee ballots, and said list shall be kept by the County 
Chairman and shall be available for inspection.

Q. Any statutory provision?
A. None.
Q. Point out the difference between rule 36 and 2366, 

which applies to protests and contests?
A. The essential difference between the two is that 

under the statute, if you wanted to protest an election, you 
appealed within two days, and your hearing was had by the 
county committee before the next Tuesday, at which time 
it would come before the state committee, all within one 
week.

Q. What about the rules?
A. Under our rules, you appeal within two days, you 

have until the next Tuesday to appear before your county 
committee and the next Tuesday before your State, which 
gives ample opportunity for appeal or protest. The statute 
did not give it.

Q. The statute did not give it. Rule 49, now, watchers 
at the polls. What do the rules provide on that?

62 Rice et al, A ppellants, v. Elmore, A ppellee



A ppendix 63

A. The rules provide that any candidate may appoint a 
watcher at all polls.

Q. Any poll he desires?
A . Yes, sir, but the statutes only provided that candi­

dates in counties where there was a city o f twenty thousand 
or more could appoint a Avatcher.

Q. Was a provision in 2395 about when a person is 
physically disabled?

A. Only for a voter if he couldn’t write his own ballot, 
he could ask for the watcher from the booth from both sides.

Q. Just specifically for one disabled voter?
A. Correct. Our rules provide a general watcher.
Q. Y ou r rules proAude a general Avatcher. Now , Ave 

come to the next, municipal democratic clubs, rule 44, 
shortly stated, provide Avhat?

A. It provided that upon a petition by a representative 
number of Dem ocrats, that a municipal club could be or­
ganized provided that club conducted a prim ary— or sub­
stantially— in accordance Avith the rules of the party.

Q. Now, we have set out there, Mr. Baskin, on that 
page and the next page, the statutes that Avere in effect on 
April 13, 1944, regarding municipal elections or prim aries 
Avhich Avere repealed, H oav m any Avere there?

A. There Avere forty  statutes, different statutes, on the 
books regulating municipal prim aries, in conflict Avith the 
other, in varying sizes of toAvns and cities— all of them Avere 
on the books. Our rule of tAvo paragraphs takes the place of 
forty statutes.

Q. Forty statutes?
A. Yes, sir.
Q. N oav, we come to penalties for violation, and you  

have already testified that under the rules of the party, the 
only penalty would be expulsion from  the party?

A. Yes, sir.
Q. For violation of the rules?
A. Yes, sir.
Q. That’s the entire rule 50 set out in this parallel 

column ?
A. It is.



64 R ice et al., A ppellants, v. Elmore, A ppellee

Q. Under Section 2400 and 2370 of the statutes, what 
were the penalties there?

A. The penalties were fines of not more than $500.00, 
nor more than six months in jail.

Q. Penal statutes?
A. Penal statutes.
Q. There, section 2400 speaks of perjury, isn’t that cor­

rect?
A. What?
Q. Section 2400 speaks of perjury?
A. Yes, sir.
Q. The only provision in the rule as you stated, is ex- 

plusion from the party for violation?
A. The party, after the statutes were removed, became 

a voluntary association, and it provided only for expulsion 
from that association for violations of its rules.

Q. Now, rule 51, secretaries and absentee ballots, is 
there a rule in the party rules of May 15,1946 on that ?

A. There is in our party rules of 1946, but there was 
none in the statute.

Q. What does your rule provide?
A. Our rule provides that the secretary of county com­

mittees, that is, the county Democratic executive commit­
tee, or state Democratic executive committee, can not act 
if he is an opposed candidate. In other words, he would not 
be authorized to pass upon anything that might affect his 
candidacy.

Q. Any such provision in the code?
A. None.
Q. None in the code—what about voting machines, un­

der section 53 of the rules?
A. Authorizes county executive committees at their 

discretion to use voting machines in primaries, but there 
was no such provision in the statutes for primaries.

Q. Now, Mr. Baskin, referring to the appendix which 
was filed by plaintiff in this case, and referring to our rule 
12—you’ve got our rule 12 there—

A. Yes, sir, I ’ve got it.
Q. Under the rules of the party, where is it provided 

that county conventions should meet?



A ppendix 65

A. At the county seat.
Q. Under statute 2360, where was it provided that 

county conventions should meet?
A. According to this appendix—
Q. Just a minute—
A. This appendix is in error. The appendix is in error; 

the appendix says county seat under the statute, but it was 
the court house under the statute—our rules state county 
seat.

The Co u r t : Not very much difference, is there, Mr. 
Baskin ?

Mr. B a s k in : Yes, sir, considerable difference—under 
the statute, they met in the court house, a public building, 
under our rules, they met at the county seat.

The Co u r t : Doesn’t the statute say—read me that—
Mr. B a s k in : Yes, sir. (consults papers)
Mr. B a s k in : Every general election year county con­

ventions shall be called by the county committee to meet 
on the First Monday in May, at the county seat—I ’m 
wrong.

The Co u r t : County conventions—I ’ve attended them 
and they didn’t meet in the court house.

Mr. B ask in  : Maybe I ’m wrong. Let me be positive, sir. 
My memory— (consults papers)

Mr. B e n e t : Your Honor, it looks like our parallel col­
umn seems to be in error on that. .

Mr. B a sk in  : It apparently is.
The Co u r t : Suppose we pass on.
Q. Now, Mr. Baskin,—
A. Yes, sir.
Q. Were these major differences you have pointed out 

between the rules of the Democratic party of South Caro­
lina, adopted in 1946, and the statute— state whether or not 
the Democratic party of South Carolina is set up under the 
rules of 1946, and operates under those rules ?

Mr. M a r s h a l l : I f your H onor pleases, I have quite a 
little evidence— I  want to object— I certainly object to that, 
calling for a conclusion of the witness.



66 R ice et al., A ppellants, v. E lmore, A ppellee

The C o u r t : Well, I ’ll allow him to ask that. I put the 
witness up. I ’m going to allow cross examination. It is my 
witness.

Q. All right, Mr. Baskin, you heard the question—you 
have already testified you are state chairman of the pres­
ent Democratic party, that’s true!

A. I am, sir.
Q. State whether or not the Democratic party of South 

Carolina was organized, set up and now operates under the 
rules of 1946, which are attached as an exhibit to the an­
swer of the defendants in this case?

A. The Democratic party operates and did operate in 
1946 under the 1946 rules. It was set up at the convention 
of 1946, under the 1944 rules, which were adopted after re­
peal of the statutes.

Q. As to operation now, what is it operating under?
A. 1946 rules.
Q. The 1946 rules.
Mr. B e net : You may have the witness.

E xamination

By Mr. M arshall.
Q. Senator Baskin, in your appendix one, when you 

speak of no statutes—what I am trying to get clear is, did 
you include in the statements none—there—did you assume 
in that that those statutes that were repealed in 1944 were 
not in existence in 1944?

A. No, we did not.'
Q. I mean, for example, there was an absentee ballot 

provision in existence in 1944?
A. There was an absentee ballot, yes, but I think what 

ours show, there was no absentee enrollment.
Q. There was a provision for absentee ballot?
A. Yes, sir.
Q. You read from the first paragraph of the rules in 

1944, the rules in 1946. Would you mind also reading the 
first paragraph of the rules of 1942?

A. At the convention of the Democratic party of the 
State of South Carolina begun and holden at Columbia on 
the 20th day of May in the year 1942, the following rules



A ppendix 67

are ordained and established in place of the constitution 
and rules heretofore in force, which are hereby declared 
null and void.

Q. No substantive difference in the first paragraph of 
any of those ?

A. There is none, except the fact that when the party 
reorganized, it reorganized completely.

Q. Been doing that?
A. Yes.
Q. There’s nothing sustaining them doing that in 1944, 

was there?
A. No.
Q. And each convention meets and repeals all the other 

laws and starts out again?
A. Yes, prior conventions had little to do because the 

statutes regulated that. The conventions of 1944 and 1946 
had the duty of providing for every contingency—complete 
regulations—had no statute to back it.

Q. How many additional regulations did they pass in 
1942 they didn’t have—in 1944 they didn’t have in 1942?

A. I don’t—
Q. The rules would show?
A. The rules would show.
Q. You said a difference in the municipal elections— 

I want you to point out the substantive difference in the 
rules of 1944 as to congressional elections, substantive dif­
ference, in the 1942 and 1944 rules on that point.

A. The 1942 rules provided for municipal Democratic 
clubs, upon a petition signed by fifteen persons of qualified 
voters, as shown by the books of registration.

Q. I ’m speaking as to congressional elections.
A. You asked me about municipal—I ’ll have to read 

from the municipal—
Q- I think you misunderstood—I said excluding the 

question of municipal elections, will you point out as to 
congressional elections the difference, substantial differ­
ence, between the 1944 and 1942 rules?

A. There was an additional oath for congressional can­
didates in the Democratic primary.



68 Rice et al, A ppellants, v. E lmore, A ppellee

Q. Additional oath!
A. Additional oath.
Q. And—
A. Let me explain that. That oath provided that a can­

didate running for the United States Senate or for the 
United States House of Bepresentatives, this additional 
pledge shall be required: I will support the political prin­
ciples and policies of the Democratic party of South Caro­
lina during the time of office, to which I may be elected.

Q. That applied to the candidates?
A. Yes.
Q. All right. What substantial difference—with that in 

mind, could you give me other substantial differences, if 
we assume that is substantial? Any other material differ­
ence in the way the 1944 primary was run and the way the 
1942?

A. There are numerous differences. The 1944 primary 
allowed an eighteen year old to vote—I mean the ’46 did.

Q. 1944, I want just now?
A. 1944?
Q. 1944 and 1942.
A. The 1944 permitted a club secretary of a precinct to 

enroll any persons in the armed forces, whereas the 1942 
did not.

Q. Weren’t many in the armed forces in 1942, were 
there ?

A. No, no. The 1944 permitted absentee enrollment to 
be made by a person, kinsman or friend, and only on ap­
plication in writing and not supported by oath as in 1942.

Q. I ask you, Senator Baskin, wasn’t that also for the 
purpose of men in the service?

A. It was.
Q. Other differences, rather—
A. I can give you other differences.
Q. That’s what I ’d like to have, sir.
A. The 1942 rules provided for the filing of rolls with 

the clerk of the court of the county; the 1944 provides for 
filing them with the party county chairman.

Q. Any others?



A ppendix 69

A. The 1942 rules provide for an application to a judge 
of competent jurisdiction for any person who may be off 
of the roll and who wanted to get on, and the 1944 rules 
provided he shall apply to the county chairman. The 1942 
rules provide that the original enrollment book shall be 
filed in the clerk of court’s office. The 1944 rules provide it 
shall be filed with the county chairman of the party. The 
1942 rules provide that all candidates must subscribe to 
a pledge required by an act of the general assembly, and 
file that pledge with the clerk of the court of common pleas. 
The 1944 rules provide that he must file a pledge under 
these rules with the secretary of the county committee.

Q. That’s the candidate, did you say?
A. Yes.
Q. That doesn’t apply to the voters at all—the voters, 

now?
A. Yes, as to voters.
Q. Go right ahead, that’s what I want.
A. The 1942 rules provide he must support the nomi­

nees of the party, state and national, and “ of the party, 
state and national” , were stricken, and the words, “ this 
primary” , put in.

Q. In 1944?
A. In 1944, you support the nominee of the primary; 

in 1942, support the nominee of the party, state and na­
tional.

Q. Go right ahead, sir.
A. The 1942 rules provide for the closing of the polls 

in a number of cities, different hours, and the 1944 rules 
cut out those various cities, and leave it to the county com­
mittee.

Q. Is that particular provision pertinent to Richland 
County?

A. In Columbia, yes.
Q. In Columbia?
A. Under that provision, Columbia would have had to 

close at six o ’clock—under the rules closed at four.
Q. Two hours difference in the time the polls are open?
A. Yes. And in the oath to be taken by voters, the 1942 

rules provide that the voter must pledge himself to support



the nominees in the ensuing general election, and “ in the 
ensuing general election”  was eliminated in the 1944 rules?

Q. When you say support a candidate, successful can­
didate of a primary election, what could you possibly mean?

A. What?
Q. When you say you pledge to support the success­

ful candidate of a primary election, what else could you 
mean other than in the general election?

A. I don’t know.
Q. Go right ahead— any more?
A. The 1942 rules provide that the rules of the party 

may be amended or altered at the regular May convention 
or state convention—no, at the regular May convention or 
any state convention called especially for that purpose, 
the call of which shall specify the changes to be made. 
There was added in 1944—provided that notice to amend 
be given the state chairman at least five days before the 
convention. That was done for this reason: Before the 1944 
convention, the statutes governed. A t the 1944 convention, 
there were no statutes, and the convention provided for 
amendments.

Q. Any other changes, material to congressional elec­
tions ?

A. I have already pointed out the one about municipal 
elections, you want it pointed out?

Q. I ’m trying to restrict it to what you consider ap­
plied to a congressional primary?

A. Voting machines, in Section 10, were added. The 
county executive committee could, at its discretion, use vot­
ing machines.

Q. Is there any recognized material difference in the 
conduct of an election between the voting machine and the 
Australian ballot other than the one that the voting ma­
chine is easier to operate and harder to tamper with—any­
thing other than that?

A. Frankly, I ’m not familiar with voting machines.
Q. Isn’t it true that voting machines are considered 

the safest method of having a clean election?
Mr. B enet  : We have no objection to that statement, 

but what that’s got to do—it applies to no question—

70 R ice et al, A ppellants, v. Elmore, A ppellee



A ppendix 71

The Co u r t : N o, I don’t think a provision allowing vot­
ing machines sheds any material light—

M r . M a r s h a l l  : I  withdraw the question.
Q. Anything else, Senator Baskin?
A. The rule on absentee voting, as it appeared in the 

statute and the rules of 1942, were changed and simplified. 
Just numerous little small changes, the effect of which was 
to make it easier for a person to vote absentee if he were 
away out of the United States or in the armed forces.

Q. Well, as I mentioned before, that was passed pri­
marily to take care of the armed services, wasn’t it?

A. Yes, sir.
Q. May I ask you one question, Senator Baskin, you 

are in the Senate of the General Assembly. Was any con­
sideration given to the same provision for general elections 
at that time ?

Mr. B enet  : If your Honor please, we question whether 
that has any competency, as to what was considered in the 
general assembly, as to general elections. No question is 
raised here about general elections.

The C o u r t : Y ou wish to find out whether any law was 
passed?

Mr. M a r sh a l l : Y es , sir.
The Court : He can ask whether any act was passed.
Mr. B e n e t : I f your Honor please, I don’t know what 

it is that counsel is driving at. We don’t see what bearing 
this would have upon the question he raises here in his 
complaint.

The C ourt : I am doubtful whether it sheds any light 
on it myself. I ’ll hear it. I f it doesnt’ shed any light, I 
won’t use it.

Q. Were any acts passed in the general assembly as to 
general elections, simplifying absentee voting?

A. The special session of 1944 passed an act author­
izing absentee voting in general elections, but that was ma­
terially different from the act which was repealed author­
izing absentee ballot in primaries.

Q. Any other sections there?
A. The word “ election”  was stricken and “ primary”  

used. Of course, that is—



72 R ice et al., A ppellants, v. Elmore, A ppellee

Q. In the oath, you mean?
A. In numbers of places in the rules. I don’t know 

about in the oath.
Q. However, it is true that in both the 1944 and 1946 

rules, you require your voters to take an oath that he hasn’t 
voted in this election, isn’t that true? Rule 32, I believe it 
is—rule 32?

A. These rules say so, but I am quite positive that the 
convention amended that, and that is a clerical error. I 
could verify that if you want me to.

Q. Senator Baskin, is this the rule? Maybe I will get it 
straight once and for all—is this the rules of the Demo­
cratic Party of 1944 and 1946?

A. As far as I know they are correct—that’s the only 
thing in them I see that I remember was different.

Q. Is this a copy of the rules given to officials, to elec­
tion managers, primary managers?

A. They were.
Q. This is the book they used, is it not?
A. That is correct.
Q. And under this, aren’t they required to administer 

the oath as it appears in this book, to the electors who come 
in to vote? On a question on examination by Mr. Benet, 
you raised the question about the watcher being different 
from the statute. Isn’t the section you read from in the 
1944 rules essentially the same as in the 1942 rules on 
watchers ? Rule 49, in the 1942 rules ?

A. I think it is the same as in the 1942 rules, yes, sir.
Q. 1942 and 1944 are the same?
A. Yes, sir, the rules are, but not the rules and the 

statute.
Q. Senator, how long have you been a registered Dem­

ocrat— registered Democrat— enrolled Democrat?
A. A  Democrat doesn’t register in the party; he en­

rolls.
Q. How long have you been an enrolled Democrat— 

about ?
A. Let me see—twenty-two years.



A ppendix 7 3

Q. And during that time, you have been more or less 
familiar with the Democratic party of South Carolina, have 
you not?

A. During the last few years.
Q. Isn’t it true that although the Democratic party at 

each convention adopts new rules and regulations, isn’t it 
true that the personnel of the party is run through from 
year to year—the same except as to those who die?

A. Oh, no, the personnel changes materially from year 
to year.

Q. You mean that the Democratic party of South Caro­
lina today is different from the one in 1946?

A. In many respects, yes, as to persons in it.
Q. What do you mean—you go to some other party?
A. Different officers, club officers, different county offi­

cers, different state officers.
Q. I ’m not speaking of officers, I ’m speaking of the 

membership in general?
A. Oh, membership, yes, sir.
Q. The membership runs the same year in and year out 

with few exceptions?
A. With some exceptions.
Q. With some exceptions. Is it true that the conven­

tion rules and regulations, that there are some changes 
made from convention to convention?

A. Prior to the convention of 1944, the changes were 
very, very minor or very, very few.

Q. Very few?
A. The convention of 1944 and the convention of 1946 

made substantial changes.
Q. The convention of 1944 and the convention of 1946 

made substantial changes. Prior to that time, they made 
minor changes, is that correct?

A. Of course, it was governed by statute. I mean it—I 
mean all primaries were governed by statute.

Q. All governed by statute prior to that time?
A. Yes, sir.
Q. Senator Baskin, I am, of course, unfamiliar with 

how this election is run. When this oath is administered,



74 Rice et al., A ppellants, v. Elmoke, A ppellee

they require a man to take an oath the same way he takes 
it in the courtroom? How is the oath administered?

A. A  fellow simply says: “ You solemnly swear to sup­
port the nominees” — or whatever the oath is—“ support 
the nominees of the party and haven’t voted elsewhere in 
this primary.”

Q. With the variation you mentioned—they took an 
oath under the statute—or with the exception of that varia­
tion, they administer the oath the same way—the same gen­
eral type of an oath, don’t they?

A. With the exception of the variation, as to state and 
national and as to ensuing general election.

Q. So that, as a matter of fact, isn’t it true that there 
is no way in your rules, there is no way in the way the con­
duct of a primary has been carried out for the voter who 
votes in the Democratic party election in South Carolina 
to know whether he is taking an oath under the statute or 
under the rules and regulations, unless he reads them—is 
that true ? Is there anything you can point to to show that is 
not true?

A. Numerous people wouldn’t know where the oath 
came from.

Q. Senator Baskin, I don’t know whether you need 
time on it—Rule 28 of all three of the sets of rule, being 
specifically actual conduct of the primary elections, the 
manner in which it shall be conducted, aren’t rules 28 and 
29 of the 1942, 1944 and 1946 rules almost identical?

A. No, there are material differences.
Q. That’s what I wanted to get in the rules.
A. The 1942 rules provide or direct a primary election 

on the last Tuesday in July, and the second and third pri­
mary, each, two weeks thereafter.

Q. In the ’42 rules?
A. ’42.
Q. Let’s read rule 28 as you have it.
A. All right. See the 1942 rule had a direct primary 

election and a second and third two weeks thereafter, with 
this proviso, that the county committee of any county shall 
be at liberty to order the elections, under these rules or by 
statute. The 1944 rules took out “ or by statute” , and cut



A ppendix 75

out “ election” , and changed the primary from two weeks 
between them to four weeks between them, which was im­
possible under the statutes.

Q. How about rule 29?
A. There appears to have been no change made.
Q. So that, with the exception of the time element, with 

the exception of the removing of the words, “ or by stat­
ute” , there’s no material difference in these sections, that 
is, how the primary shall be conducted in these three sets 
of rules? Is that correct?

A. Those are the changes, yes.
Q. Restricting ourselves now to the 1942 election, am 

I correct that the 1942 election was run—
Mr. B e n e t : If your Honor please, we object to going 

back to the 1942 election.
The Co u r t : Objection overruled. Proceed.
Q. The primary held in 1942—I wanted to ask of you, 

as to whether it was run pursuant to the statute or run 
pursuant to the rules of the Democratic party, or run pur­
suant to both?

A. In the pimary?
Q. Yes, sir—1942?
A. The actual primary was run pursuant to the stat­

utes. The rules were the same.
Q. Well, what did you give to the people who conducted 

the primary election— statutes or rules?
A. Gave them rules.
Q. What did they follow the statutes or the rules?
A. Followed rules.
Q. In the 1944 and 1946 primaries, what did you give 

the election managers to run the election by?
A. The rules.
The Court : Any further questions for the defendants ?
B y  Mr. B e n e t :
Q. In 1942 and 1944, state whether or not the rules 

followed the statute?
A. In 1942 and 1944?
Q. In 1942, first?
A. In 1942, the rules did follow the statute.
Q. What about 1944?



76 Rice et al., A ppellants, v. E lmoke, A ppellee

A. There was no statute for the rules to follow. The 
rules were substantially different.

Q. Early in the examination, the question was asked 
you as to whether or not the convention, before 1944, re­
pealed laws—has the convention ever had the right to re­
peal laws?

A. Never has a right to repeal laws—has a right to 
repeal its rules, but if it repealed a rule contrary to the 
statute, the statute would still have to be complied with.

Q. The statute would govern?
A. Yes, sir.
Q. Look at rule 28 again that counsel was asking you 

about. Is there any change as to time between the second 
and third primaries, if it ’s necessary to have a second and 
third primary?

A. Yes, sir, changed from two, as the statute and rule 
provided, to four weeks.

Q. Look down there about the eighth line, it says the 
second and third primary each three weeks successively 
thereafter?

A. That’s the ’46 rules.
Q. The 1946 rules?
A. The 1942 was two; the 1944, four; the 1946 was 

three.
Q. That’s another difference, isn’t it? Just one last 

question, Mr. Baskin, as chairman of the party, you having 
succeeded Mr. Thomas B. Pearce who died since this ac­
tion was brought—is that correct?

A. Yes, sir.
Q. State whether or not the testimony you have given 

as to the rules applies to the conduct of the party in Rich­
land County?

A. It does.
Q. You say it does?
A. Yes, sir.
The Co u r t : Either side desire to put anything else 

in?
Mr. M a r sh a l l : No, sir.
(The Court recessed for ten minutes.)



A ppendix 7 7

The Co u r t : N ow , gentlemen for the defense, you have 
not consummated your argument. You may proceed.

Mr. B enet  : It had been my purpose to discuss in the 
beginning of my argument the difference between the 1946 
rules and the statutes which were repealed. In view of the 
testimony taken, and the questions asked by your Honor 
and counsel on the other side and myself—

The Co u r t : I think Mr. Baskin has pointed those out 
very fully.

Mr. B enet  : One question I should have asked him, your 
Honor, and I ’d like to call attention to it, in the rules of 
1946 which have been repeatedly stated here, made a part 
of our answer, that Rule 50, which is set out in that parallel 
column which he did not read, begins with, Penalties for 
Violations. Each and every person, whether candidate who 
enters the primary or person who votes therein shall by 
said act or acts submit himself or herself to the rules of 
the party— I merely wanted to call that to your Honor’s 
attention, and then to the penalty provisions under the 
statute.

(Mr. Benet argued to the Court in behalf of the de­
fendants.)

(Mr. Marshall argued to the Court in rebuttal in be­
half of the plaintiff.)

The Court : I  wish to express m y thanks to all of coun­
sel, and also to Mr. Baskin, the witness, who enlightened 
me considerably on certain things I wished to know.

There was some mention of a desire to file briefs. Any 
and all counsel will have leave to file briefs within ten days 
with me. I would like to have them sent to the Court at 
Charleston which is my residence, and any matters that 
you desire to reiterate there or any matters that have 
arisen as a result of this hearing and argument today will 
be considered by me. I ’ll give you to the 14th, or rather, 
the 15th, of June. Well, gentlemen, I ’ll be glad to receive 
such briefs from you. I have been greatly enlightened by 
your arguments, and, as you see, I had to read the briefs 
very hurriedly. You didn’t furnish them to me as early as 
I would have liked to have had them. I shall enjoy read­
ing your additional briefs, and hope to read the case and



78 Rice et al, A ppellants, v. Elmore, A ppellee

reach a decision as early as possible, which will certainly 
be confined—the Court will now adjourn until tomorrow 
morning at ten o ’clock.

I certify that the foregoing is 
a correct transcript of my notes.

KATHERINE KLAUBER, 
Official Reporter.

Civil Action No. 1702 

OPINION

Plaintiff, George Elmore, is a duly and legally qualified 
elector under the Constitution and laws of the United 
States and of the State of South Carolina and is subject 
to none of the disqualifications for voting thereunder. This 
suit is brought by him to test the legality of the action of 
the defendants in not permitting him and other qualified 
Negro electors to vote in the Democratic Party’s Primary 
held on August 13, 1946, in Richland County, which Pri­
mary was held for the purpose of nominating candidates 
on the Democratic ticket for the House of Representatives 
of the United States, and for various State offices. The 
rules of the Democratic Party restrict voting in its pri­
maries to white persons. The plaintiff, George Elmore, is 
a Negro. Some of the defendants are election managers of 
Ward 9 precinct in Richland County, South Carolina, and 
the others are members of the Richland County Democratic 
Executive Committee which has general charge and super­
vision of the conduct of the primaries and other functions 
of the Democratic Party in Richland County. This action 
is brought by the plaintiff on behalf of himself and others 
similarly situated.

The action is based upon the alleged rights of the plain­
tiff under the Constitution of the United States and par­
ticularly under Article 1, Sections 2 and 4, and the Four­
teenth, Fifteenth, and Seventeenth Amendments. The jur­
isdiction of the court is invoked under Title 28 USCA, Sec­
tion 41; Subdivision 1, Subdivision 11 and Subdivision 14,



A ppendix 79

and a declaratory judgment with injunction prayed for 
under Title 28, USCA, Section 400. It is alleged that the 
plaintiff and others in like situation have been deprived 
of the civil rights guaranteed them under Title 8, USCA, 
Section 31, which is as follows:

“ Race, color, or previous condition not to affect 
right to vote.

All citizens of the United States who are otherwise 
qualified by law to vote at any election by the people in 
any State, Territory, district, county, city, parish, town­
ship, school district, municipality, or other territorial 
subdivision, shall be entitled and allowed to vote at all 
such elections, without distinction of race, color, or 
previous condition of servitude; any constitution, law, 
custom, usage or regulation of any State or Territory, 
or by or under its authority, to the contary notwith­
standing. ’ ’
And Title 8, USCA, Section 43, which is as follows:

“ Civil action for deprivation of rights:
Every person who, under color of any statute, or­

dinance, regulation, custom, or usage, of any State or 
Territory, subjects, or causes to be subjected, any citi­
zen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, 
privileges, or immunities secured by the Constitution 
and laws, shall be liable to the party injured in an ac­
tion at law, suit in equity, or other proper proceeding 
for redress.”

It is admitted and stipulated that the plaintiff George 
Elmore and certain other Negroes who were qualified to 
vote under the Constitution of the State of South Carolina 
presented themselves on August 13, 1946, at the regular 
polling place of Ward 9 Precinct in Richland County, South 
Carolina, during the regular hours that the polling place 
was open and requested ballots and permission to vote in 
the Democratic Primary, and that these requests were re­
fused on the ground that they were not enrolled because



80 R ice et al., A ppellants, v. Elmore, A ppellee

they were not white Democrats; and that this refusal by the 
Primary Managers was in pursuance of the rules and in­
structions of the Chairman of the Richland County Dem­
ocratic Executive Committee and the members of such Com­
mittee who were acting pursuant to the rules of the Demo­
cratic Party of South Carolina then in force, particularly 
because such rules limited membership to persons of the 
white race.

Upon the hearing of the case it was decided that the 
Court would first pass upon the question of a declaratory 
judgment and injunction, and that the prayer for money 
damages (alleged in the complaint to be $5,000.00) would 
be deferred for future submission to a jury in case it was 
determined that the plaintiff had stated and shown a cause 
of action.

Under Title 28 U. S. C. A. Section 41, Subdivision 11, 
the District Courts are given original jurisdiction of all 
suits “ to enforce the right of citizens of the United States 
to vote in the several states,”  and the Federal Courts have 
undoubted jurisdiction over the right to vote in a primary 
provided it is determined to be an integral part of the elec­
tion machinery of the State. United States v. Classic, 313 
U. S., 299; Smith v. Allwright, 321 U. S., 649. On the ques­
tion of jurisdiction, see also

Nixon v. Herndon, 273 U. S., 536;
Nixon v. Condon, 286 U. S., 73;
Lane v. Wilson, 307 U. S., 268;
Chapman v. King, 154 Fed. (2d), 460.

Of course there has never been any serious question 
that the Constitution of the United States recognized the 
right of the Federal Government to control General Elec­
tions in which Federal Officers were chosen. However, it was 
for many years a doubtful question as to whether the fed­
eral jurisdiction and federal laws extended to primary elec­
tions. The issue was squarely faced in the famous case of 
Newberry v. U. S., 256 U. S., 232 where the Court had to de­
termine whether legislation attempting to regulate pri­
maries was constitutional. The Court was evenly divided,



A ppendix 81

four to four, on the question as to whether the federal gov­
ernment could regulate primaries. But the Justices voted 
five to four in declaring the act then under consideration 
unconstitutional, it having been passed before the Seven­
teenth Amendment was adopted. But even at so early a 
date, four of the Justices in an opinion by Mr. Justice 
Pitney, took the position that a primary election should not 
be treated as a thing separate from the final election but 
should be considered as so closely related to the final elec­
tion that proper regulation is essential. The dissenting 
opinion discusses the matter at some length, is enlighten­
ing, and sounds as though it were enunciated by the present 
Supreme Court in view of its recent decisions to which I 
hereinafter advert.

Over the course of years, there has been a constant j[ 
flow of litigation relative to the right to vote in elections 
as well as in primaries. This has been particularly true in 
certain of the states wherein various restrictions were im­
posed in attempts to impede the rights of Negroes to vote.
A number of cases which have been discussed at length and 
cited in briefs submitted to me denied the right of the Fed­
eral government to supervise primary elections even 
though they were created and regulated by state statutes.
It might he interesting to follow and discuss many of these 
but since the decisions in the Classic and Smith cases, 
supra, these older cases have really become of interest only 
from an historic standpoint. Perhaps the outstanding one 
of these is Grovey v. Townsend, 295 U. S., 45. And under 
the law as laid down by that case, confirming and supple­
menting many other eases (which I deem unnecessary to 
cite for reasons above stated) a state had the right to en­
act laws governing primary elections and a political party j  
operating thereunder might restrict the voters in the p r i- / 
mary conducted by it according to racial distinctions. The: 
Court there took the definite position that the privilege o f  
membership in a party, with the right to vote for its nom) 
inees, is different from the right to vote in a General 
Election.

But the views of the Supreme Court of the Unitem, 
States in regard to these matters has suffered a drastic?



82 Rice et al, A ppellants, v. E lmore, A ppellee

I and complete change. And so far as we are at present con- 
S cerned with the law of the land, except fop an interest in 
f prior views showing changes and development of the law, 
| we need hardly look back of 1941 when the famous case 

of United States v. Classic (313 U. S. 299) was decided, and 
f a few years later in 1944 Smith v. Allwright (321 U. S., 
649). These two cases now completely control and govern 

1 the matters under discussion.
In South Carolina for many years the Democratic 

Party has conducted primary elections for the choice of 
municipal, county, state and federal officers. It is a matter 
of common knowledge that for a great many years the 
Democratic Party has completely controlled the filling of 
offices in the State of South Carolina. For the purpose of 
this case and as shown by the stipulations, certain dates 
are fixed, and it is agreed that since 1900 every Governor, 
member of the General Assembly, United States Bepresen- 
tative and United States Senator for the State of South 
Carolina, elected by the people of this State in the General 
Elections, was the nominee of the then existing Democratic 
Party of South Carolina, and that during the past 25 years 
the Democratic Party of South Carolina has been the only 
political party in this State to hold State-wide primaries 
for the nomination of candidates for Federal and State of­
fices. The Constitution of South Carolina of 1895 recog­
nized the primary as a part of the election machinery of 
the State and authorized the General Assembly to enact 
laws to govern these primaries. Article II, Section 10, is as 
follows:

“ Primary elections.— The General Assembly shall 
provide by law for the regulation of party primary 
elections and punishing fraud at the same.”

Article II of the Constitution is entitled “ Bight of Suf­
frage,”  and the whole Article, consisting of 15 sections, 
covers suffrage, including registration and elections, which 
goes to show that the State recognized a primary as an 
integral part of the elective process.

In accordance with the right given by the Constitu­
tion, the General Assembly from time to time adopted,



A ppendix 83

modified, and amended the laws regulating primary elec­
tions, and in 1915 a complete comprehensive revision of the 
election laws, declaring and regulating the primary, was 
adopted.

We may therefore say without fear of contradiction 
that the Democratic Primary in South Carolina was regu­
lated and controlled by direct State action and was an in­
tegral part of the election laws of the State. Prior to the 
decision in the Classic case, supra, there could be no doubt 
that a Negro had no right to be admitted to the primary 
elections or become a member of the Democratic Party in 
this State. But the decision in the Classic case threw a 
doubt on this. And in 1944 with the decision in Smith v. 
Allwright, supra, the status was entirely changed, and then 
instead of being even a doubtful matter, it was clearly evi­
dent that the Democratic Party in South Carolina, as then 
constituted and acting under the statutes enacted by its 
State, no longer had the right to limit its members to whites 
and to exclude Negfoes.

And this was clearly recognized by the officers and 
those in charge of the Democratic Party, as well as State 
and Federal officials, who were the same in many cases. As 
a matter of fact, the then Governor of the State of South 
Carolina, Olin D. Johnston (now United States Senator 
from this State) issued a proclamation calling for an Ex­
traordinary Session of the General Assembly of South 
Carolina to convene on April 14, 1944. In that proclamation 
(dated April 12, 1944) he stated one of the specific pur­
poses of the session was for “ the purpose of safeguard­
ing our elections, the repealing of all laws on the statute 
books pertaining to Democratic Primary elections.”  The 
General Assembly convened and received a message from 
the Governor in which he elaborated the purpose for which 
the extraordinary session was called and urged that it be 
limited “ to the consideration of matters pertaining to elec­
tions and election laws. ’ ’ The Governor reviewed his former 
recommendations and the action of the General Assembly 
in 1943 in repealing certain primary election statutes (it 
was evident that this action had been taken because of the



fears aroused by the Classic case, supra). The Governor 
then pointed out that the United States Supreme Court 
in a Texas decision (referring of course to Smith v. AlU 
wright, supra) had reversed its former ruling “ so that it 
now becomes absolutely necessay that Ave repeal all laAvs 
pertaining to primaries in order to maintain Avhite suprem­
acy in our Democratic Primaries in South Carolina.”  
Among other things, the Governor also said:

“ I  know that the white Democrats in South Caro­
lina Avill rally behind you in this matter o f repealing all 
prim ary laAvs from  the statute hooks. I  have always be­
lieved in action and not m erely in words, especially 
when the protection and the preservation o f  morals 
and decency in governm ent is involved. Now, is the 
time fo r  us to act.

“ I regret that this ruling by the United States 
Supreme Court has forced this issue upon us, but we 
must meet it like men. I further regret that certain 
agitators within and without South Carolina are tak­
ing advantage of this situation to create strife and dis­
sension at the present time. These agitators are not 
friends of either race, but they are creating strife and 
dissension to further their own selfish gain.

“ H istory  has taught us that we must keep our 
white Dem ocratic prim aries pure and unadulterated so 
that we m ight protect the Avelfare and homes o f all the 
people o f our State.

“ Throughout my administration I have opposed 
outside interference with the local government of this 
State. It is not my purpose now to agitate the race 
question, hut in the interest of good government and 
for the protection of all the people of our State it is 
necessary that we face this problem in a calm, delib­
erate and statesmanlike manner.

“ The Attorney General’s Office, with the assist­
ance of the Solicitors of this State, have been working 
diligently for several days upon the matter of finding 
all primary laws upon the statute books that must be

84 R ice et al, A ppellants, v. E lmore, A ppellee



A ppendix 85

repealed so that ive might have a free, white Demo­
cratic primary which can nominate its candidates free 
and untrammeled without legislative sanction.

“ After these statutes are repealed, in my opinion, 
we will have done everything within our power to guar­
antee white supremacy in our primaries of our State 
insofar as legislation is concerned. Should this prove 
inadequate, we South Carolinians will use the neces­
sary methods to retain white supremacy in our pri­
maries and to safeguard the homes and happiness of 
our people.

“ White supremacy will be maintained in our pri­
maries. Let the chips fall where they may! ’ ’

Thereafter, at this extraordinary session, lasting from 
April 14 to April 20, 1944, the General Assembly repealed 
a large number of statutes (approximately 150) all re­
lating to State regulation of primaries and their organiza­
tion and government or to elections held thereunder. The 
work seems to have been completely and thoroughly done 
insofar as I am informed. Every trace of statutory regula­
tion of party primaries was expunged from the statutes of 
this State. The General Assembly also adopted appropriate 
legislation looking to a repeal of that section of the Con­
stitution providing for laws governing primaries (herein­
before referred to), and at the next General Election this 
portion of the Constitution was repealed and is no longer 
in effect. Thus, because of the Smith v. Allwright decision, 
the State of South Carolina eliminated from its Constitu­
tion and statutes all regulation of political parties and 
primary elections, and there is now no statutory control 
either civil or criminal.

And the contention of the defendants in this case is 
that the State having thus completely renounced control 
of political parties and primaries held thereunder, these 
party primaries are private matters, subject to the de­
terminations and whims of its members, and that they may 
include or exclude members as they desire, according to 
racial or any other tests.



On the other hand, the contention of the plaintiff is 
that the Democratic Party subsequent to 1944, and today, 
is the same party and organization as it was before; that 
it carries on and performs the function of choosing Fed­
eral, State and other officers, and is the real and only or­
ganization where the determination of selection of officers 
can be had; and that it is the only place where a citizen 
can exercise his right of suffrage where it will be of any 
use or moment. In other words, the plaintiff and those 
whom he represents, thas is to say, Negroes who are quali­
fied electors and citizens of this State, take the position that 
officers of the State and United States are chosen in South 
Carolina in the Democratic Primary, and that the General 
Election is a mere formality, following the primary choices.

The stipulations in this case show that in the Demo­
cratic Primary of August 1946 (the one in which plaintiff 
was denied the right to vote) there were cast for the office 
of Governor of the State 290,223 votes, whereas in the Gen­
eral Election in November of that year the votes for that 
same office amounted to only 26,326. It is further shown that 
since 1900, every Governor, and all members of the General 
Assembly, and also all United States Representatives and 
United States Senators, elected by the people of South Car­
olina in the General Elections, were the nominees of the 
then existing Democratic Party of the State; and that dur­
ing the past 25 years the Democratic Party is the only po­
litical party in this State which has held state-wide pri­
maries for the nomination of candidates for Federal and 
State offices.

As heretofore stated, a change in the attitude of the 
courts in regard to the applicability of federal law to pri­
maries came about in 1941, and the famous case of United 
States v. Classic, 313 U. S. 299, was decided. The Court 
spoke through the able and comprehensive opinion of Mr. 
Justice (later Chief Justice) Stone. In that case, which 
arose in Louisiana, an indictment was returned against the 
Commissioners of Elections conducting a primary election 
(under the Louisiana law) to nominate a candidate of the 
Democratic Party for Representative in Congress. They

86 R ice et al., A ppellants, v. Elmore, A ppellee



A ppendix 87

were charged with fraud in the conduct of the election and 
the question in issue was whether the federal statutes ap­
plied to the defendants’ actions in interferring with the 
right of qualified voters to cast their ballots and the right 
of candidates to have their votes properly counted. The Su­
preme Court of the United States in unmistakable language 
declared that the primary election as conducted in the State 
of Louisiana was an integral part of the election machinery 
and that the Constitution and laws of the United States cov­
ered the conduct of the same where it was used to choose a 
congressman. Mr. Justice Stone says (pages 318 and 319):

“ Long before the adoption of the Constitution the 
form and mode of that expression had changed from 
time to time. There is no historical warrant for suppos­
ing that the framers were under the illusion that the 
method of effecting the choice of the electors would 
never change or that, if it did, the change was for that 
reason to be permitted to defeat the right of the people 
to choose representatives for Congress which the Con­
stitution had guaranteed. The right to participate in 
the choice of representatives for Congress includes, as 
we have.said, the right to cast a ballot and to have it 
counted at the general election, whether for the suc­
cessful candidate or not. Where the state law has made 
the primary an integral part of the procedure of choice, 
or where in fact the primary effectively controls the 
choice, the right of the elector to have his ballot counted 
at the primary is likewise included in the right pro­
tected by Article 1, § 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 machinery, whether the voter exercises his 
right in a party primary which invariably, sometimes 
or never determines the ultimate choice of the repre­
sentative. Here, even apart from the circumstances 
that the Louisiana primary is made by law an integral 
part of the procedure of choice, the right to choose a 
representative is in fact controlled by the primary be­
cause, as is alleged in the indictment, the choice of can­



didates at the Democratic primary determines the 
choice of the elected representative. Moreover, we can­
not close our eyes to the fact, already mentioned, that 
the practical influence of the choice of candidates at the 
primary may be so great as to affect profoundly the 
choice at the general election, even though there is no 
effective legal prohibition upon the rejection at the 
election of the choice made at the primary, and may 
thus operate to deprive the voter of his constitutional 
right of choice. This was noted and extensively com­
mented upon by the concurring Justices in Newberry 
v. United States, supra, 263-269, 285, 287.

“ Unless the constitutional protection of the integ­
rity of “ elections”  extends to primary elections, Con­
gress is left powerless to effect the constitutional pur­
pose, and the popular choice of representatives is 
stripped of its constitutional protection save only as 
Congress, by taking over the control of state elections, 
may exclude from them the influence of the state pri­
maries.”
Particular attention should be called to that part of 

the opinion above quoted where the Court says: “ Where 
the state law has made the primary an integral part of the 
procedure of choice, or where in fact the primary effective­
ly 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, § 2.”  (Emphasis added.) So 
it will be seen that the Court presents an alternative, name­
ly, where by state law the primary is declared a part of 
the procedure, or where it amounts to the same. The posi­
tion of the plaintiff in this case is based squarely upon that 
language.

In 1944 the Supreme Court of the United States de­
cided the equally famous case of Smith v. Allwright, 321 
U. S. 649. That case arose in Texas. Smith, a Negro cit­
izen of Harris County, Texas, brought a suit for damages 
against Allwright and others who were election judges, 
the claim being based upon the refusal of these officials to

88 Rice et al., A ppellants, v. Elmore, A ppellee



A ppendix 89

give Smith a ballot or permit him to cast one at the primary 
for the nomination of a Democratic candidate for the 
United States Senate and House of Representatives and 
for various state offices. The refusal is alleged to have been 
solely because of the race and color of the proposed voter. 
The action is brought on the ground of violation of Title 
8, IJSCA, Sections 31 and 43, in that the petitioner who de­
prived of the rights secured to him by Article I, Sections 
2 and 4 of the Constitution of the United States and of 
the Fourteenth, Fifteenth and Seventeenth Amendments 
thereof. The District Court denied the relief sought, bas­
ing its decision upon the authority of Grovey v. Townsend, 
supra. The Supreme Court agreed to review the matter up­
on a petition for certiorari to resolve the claimed inconsist­
ency between the decision in the Grovey case and the Clas­
sic case, supra. The decision in the Smith case followed 
completely the argument and decision in the Classic case, 
and especially repudiated and directly overruled the Grovey 
case.

The Smith case, following the Classic case, holds in ef­
fect that a primary is an integral part of the election ma­
chinery. It is true that in Texas the primary was covered 
by statutes. Nevertheless, the Court holds that a federal 
court must for itself examine into the facts. The opinion 
by Mr. Justice Reed (at page 662) says:

“ We are thus brought to an examination of the 
qualifications' for Democratic primary electors in 
Texas, to determine whether state action or private 
action has excluded Negroes from participation. De­
spite Texas’ decision that the exclusion is produced by 
private or party action, Bell v. Hill, supra, federal 
courts must for themselves appraise the facts leading 
to that conclusion. It is only by the performance of 
this obligation that a final and uniform interpretation 
can be given to the Constitution, the “ Supreme Law of 
the Land.”

and again at page 664:
“ The United States is a constitutional democracy. 

Its organic law grants to all citizens a right to partici­



pate in the choice of elected officials without restriction 
by any State because of race. This grant to the people 
of the opportunity for choice is not to be nullified by a 
State through casting its electoral process in a form 
which permits a private organization to practice racial 
discrimination in the election. Constitutional rights 
would be of little value if they could be thus indirectly 
denied. Lane v. Wilson, 307 U. S. 268, 275.”
Now it is clear from the consideration of the two fore­

going leading cases that the law of our land has been ma­
terially changed since the early decisions that gave to the 
state a free hand in organization, governing and using pri­
mary elections. A  primary conducted in accordance with 
state law is distinctly a part of the election machinery and 
in such a primary it is a violation of the constitutional and 
statutory rights of any cpialified elector to exclude him from 
voting by reason of race or color.

Before further considering the facts in the case at bar, 
it is proper to consider a very recent case particularly re­
lied upon by the defendants, which is that of Chapman v. 
King, decided by the Circuit Court of Appeals for the Fifth 
Circuit in March 1946, and reported in 154 Fed. 2d 460.

Portions of the opinion in that case are closely in line 
with the arguments submitted by defendants. But in order 
to understand the full implication and meaning, it is proper 
to review the entire case from its inception. King, a Negro, 
brought suit against Chapman and others, members of the 
Democratic Executive Committee of Muscogee County, 
Georgia, to recover damages for alleged deprivation of the 
right to vote in a Democratic Primary. The case was 
heard by the District Court for the Middle District of 
Georgia, and the District Judge filed full and complete 
findings of fact, conclusions of law, and opinion. See King 
v. Chapman, 62 Fed. Supp., 639. That case was a suit 
brought under Title 8, USCA, Sections 31 and 43, seeking 
damages for deprivation of civil rights guaranteed by the 
Constitution, especially the Fifteenth Amendment. The 
Georgia Primary statutes restrict voters therein to whites. 
The District Court says (Page 650):

90 R ice et al., A ppellants, v. Elmore, A ppellee



A ppendix 91

“ The Democratic Party is the dominant and con­
trolling political party in Georgia. No other party has 
held a statewide primary during the past 40 years. 
Since 1900 Democratic nominees for United States 
Senator, members of the House of Representatives, 
Governor, and other Statehouse officers, nominated at 
primaries, have been elected in the ensuing general 
election. The nominees at the 1944 Primary were so 
elected.

“ So, we conclude from this long established prac­
tice that the primary is in fact an integral part of the 
electoral process of this state. It may fairly be said that 
it is the hub of the process. When the Democratic Party 
holds a primary in this state, the system is substanti­
ally the same, in substance and objective, as the Texas 
and Louisiana systems.

“ As I understand the holding and the meaning of 
Smith v. Allwright, it is controlling here.

“ The defendants acting as the duly constituted au­
thorities of the Democratic Party, in refusing to permit 
plaintiff to vote in the Primary of July 4, 1944, solely 
on account of his race and color, deprived the plaintiff 
of a right secured to him by the Constitution and laws 
of the United States, and was in violation of the Four­
teenth, Fifteenth and Seventeenth Amendments.

“ Plaintiff has a cause of action and is entitled to 
recover. Appropriate orders will be entered.”
The Court held that the plaintiff was entitled to dam­

ages. The case was appealed to the Circuit Court of Ap­
peals. The decision of the District Court was affirmed in the 
following language (Page 464):

“ We think these provisions show that the State, 
through the managers it requires, collaborates in the 
conduct of the primary, and puts its power behind the 
rules of the party. It adopts the primary as a part of 
the public election machinery. The exclusions of voters 
made by the party by the primary rules become exclu-



/

sions enforced by the State and when these exclusions 
are prohibited by the Fifteenth Amendment because 
based on race or color, the persons making them effec­
tive violate under color of State law a right secured by 
the Constitution and laws of the United States within 
the meaning of the statute which is here sued on.”

I The defendants in the case at bar quote some of the 
/language of the opinion of the Circuit Court of Appeals 
I which seems to agree with their views. All of this, however, 
j is obiter dicta since the appellate court affirms the decision 
I of the District Judge, whose decision is squarely based up­

on the language hereinabove quoted. The Circuit Court of 
Appeals having affirmed the District Court, the defendant 
in the original suit filed a petition for writ of certiorari to 
the United States Supreme Court but this was denied (327 
U. S. 800). Argument has been made that the denial of cer­
tiorari approves all of the language of the Circuit Court of 
Appeals, but of course this argument is without basis. It 
was the defendant who petitioned the Supreme Court. He 
lost the case in the District Court, lost it in the Circuit 
Court of Appeals, and the Supreme Court refused to inter­
fere with either decision. Therefore the denial of certiorari 
may be considered as an affirmance of the District Court s 
views and decree. Of course in passing upon a petition of 
certiorari, the Supreme Court looks to decision and the re­
sult and not to dicta which do not sustain the final result. 
Moreover,

“ The denial of a writ of certiorari imports no ex­
pression of opinion upon the merits of the case, as the 
bar has been told many times.”  United States v. Car­

92 R ice et al., A ppellants, v. E lmore, A ppellee

ver, 260 U. S. 482-490; Atlantic Coast Line B. Co. v.
Powe, 283 U. S. 401-403.

It has been suggested that the action of the State in 
repealing all of the suffrage statutes amounted to a depri­
vation of the right of suffrage. The doctrine is somewhat 
novel but interesting. The argument is that under the law 
of South Carolina, as it stood before April 1944 and as 
construed by the Supreme Court decisions, Negroes had a



A ppendix 93

right to vote in the primary as then constituted. And, there­
fore, when the legislature took action, although this action 
was in the form of repeal, it deprived these citizens of a 
right which they then had, and that the act of the legisla­
ture, while negative in form, was really positive. It has also 
been suggested that inaction by a State may amount to de­
nial of equal protection. See Catlette v. U. S., 132 Fed. 2d 
902, 907 (4th CCA Opinion by Dobie, C. J., citing McCabe 
v. Atchison T. & S. F. By. Co., 235 U. S. 151; Gaines v. Can­
ada, 305 U. S. 337.) However, I think it unnecessary to 
elaborate this further as this opinion will rest upon entirely 
different grounds.

And so this case must be determined by examining the 
status of the present Democratic Primary in the State of 
South Carolina. The foregoing statement of the legal effect 
of the Classic and Smith decisions was clearly recognized 
by Governor Johnston when he called the extraordinary 
session of the South Carolina General Assembly in 1944, 
and we are therefore forced to examine what has happened 
since and the result of the abrogation of those statutes and 
as to whether the Democratic Party of South Carolina has 
sloughed its official skin and become a private organization. 
At the hearing of the cause, counsel filed stipulations of 
agreed facts, but concluding the more light should be shed 
upon the situation, so that all facts would be available to 
this Court and the matter might be decided for all time, the 
Trial Judge, of his own motion, called a witness to the stand 
to testify more fully as to the workings of the Democratic 
Party, its primaries and machinery. The Chairman of the 
State Democratic Executive Committee took the stand and 
testified quite frankly and freely.

From the stipulations and the oral testimony and from 
examination of the repealed statutes and of the rules of the 
State Democratic Party which were put in evidence, we 
may briefly summarize the organization and methods of the 
Democratic Party in this State, both before and after 1944. 
Prior to 1944, as shown by the statutes set forth in the Code 
of South Carolina and from an examination of the rules of 
the party published in 1942, the general setup, organization



94 R ice et al., A ppellants, v. Elmore, A ppellee

and procedure of the Party may be generally stated as fol­
lows: In the year 1942 (a year wherein certain primaries 
and general elections were to be held) organizations known 
as clubs in various wards (in cities), voting precincts, or 
other subdivisions, met at a time and places designated by 
the State organization. The members of these clubs were 
the persons who had enrolled to vote in the primary held 
two years before and whose names were on the books of the 
clubs, which were the voting lists used at such preceding 
primary. At these club meetings, officers were elected, in­
cluding a County Executive Committeeman from each club 
and also delegates to a County Convention. Shortly there­
after a County Convention was held in each County in the 
State, where the delegates elected its Convention officers, 
including a member of the State Executive Committee and 
delegates to the State Convention. And shortly thereafter 
a State Convention was held, at which these delegates from 
the County organizations assembled, elected their presid­
ing officers and a Chairman of the State Executive Com­
mittee (composed of one committeeman from each County), 
and made rules and regulations for the conduct of the Party 
and of primaries. These rules and regulations were in con­
formity with the statute law of the State. The State Execu­
tive Committee was the governing body and the Chairman 
its chief official. The Convention repealed all previous lules 
and regulations and adopted a new set, these being how­
ever substantially the same as before with some slight 
amendments and changes, and of course new provisions for 
dates of primaries and other details.

In 1944 substantially the same process was gone 
through, although at that time and before the State Con­
vention assembled, the statutes had been repealed by action 
of the General Assembly, heretofore set out. The State Con­
vention that year adopted a complete new set of rules and 
regulations, these however embodying practically all of the 
provisions of the repealed statutes. Some minor changes 
were made but these amounted to very little more than the 
usual change of procedure in detail from year to year. The 
parties to this cause have filed schedules setting forth the



A ppendix 95

detailed changes, the one side attempting to show that the 
changes were of form and not of matter, and the other at­
tempting to point out material changes. One of the main 
items of change was to strike out the word “ election”  
throughout the rules. It was undoubtedly the intention of 
the parties in charge of revamping the Democratic Party 
to eliminate the word “ election”  wherever it occurred in 
the rules, substituting instead the word “ primary”  or 
“ nominating primary.”  In 1944 the State Convention also 
elected delegates to the National Democratic Convention 
as it had always done in years of Presidential Elections.

In 1946 substantially the same procedure was used in 
the organization of the Democratic Party and another set 
of rules adopted which were substantially the same as the 
1944 rules, excepting that the voting age was lowered to 18 
and party officials were allowed the option of using voting 
machines, and the rules relative to absentee voting were 
simplified (absentee voting had heretofore been controlled 
by certain statutes repealed in 1944. See Code of South Car­
olina, Sections 2406-2416). It is pointed out that the word 
“ election,”  although claimed to have been entirely elimi­
nated, was still used in Rules 25, 27, 32 and 48.

All of these matters are heavily stressed in arguments 
and in briefs submitted to me. I find them interesting, per­
haps significant, hut hardly controlling. The intention of 
the General Assembly and of the parties in charge of the 
Democratic Party in this State to eliminate “ election”  
from the rules seems to have been clear and distinct, and 
it is fair to assume that leaving the word “ election”  in a 
few of the rules was a mere oversight. On the other hand, 
the changing of the voting age and allowing voting ma­
chines to be installed were minor matters of procedure and 
cannot be considered to materially affect the question.

And so we are faced with the final decision as to 
whether or not the present Democratic Party of South Car­
olina, because it is no longer governed by State statutes, is 
a private organization and (as was said in argument) must 
be treated as a private, business or social club, with which



the State and National governments have no concern; or 
is it after all the determining body in the choice of National 
and State officers in South Carolina, or to use the old 
homely illustration, is it the same horse although of a some­
what different color?

And so it becomes necessary to consider the real ef­
fect of the repeal of the primary statutes of 1944. It is con­
ceded that there is now no law in South Carolina, in its 
Constitution or on its statute books, governing primaries; 
and the defendants take the position that the United States 
Constitution and the laws enacted thereunder apply only 
to the acts of the State as represented by its legal enact­
ments. But when we compare the present status of the 
Democratic Primary in this State, it is materially differ­
ent from its status prior to 1944? As has been said, it is 
common knowledge that during the long years following 
the war between the states and the adoption of the Thir­
teenth, Fourteenth and Fifteenth Amendments to the Con­
stitution of the United States there have been repeated at­
tempts to restrict voting privileges in many parts of this 
country. The constitutional amendments following the 
bloody conflict of the 1860s came upon and to a people to­
tally unprepared for the change in the status and relation­
ship of the white and black races. The potential voters in 
the former slave holding states were about doubled by the 
new federal laws and every effort was made to prevent a 
deluge of untrained, unlettered, and unprepared citizens 
from taking over control of the state government. That 
these efforts and the methods adopted were both born of 
necessity may be argued with show of reason. But many 
years and several generations have passed since the time 
such necessity arose and existed. Constitutions, Statutes 
and litigation from time to time have clarified and modern­
ized the matter of suffrage in these United States.

It may be and in fact is a fascinating study to deter­
mine whether a universal suffrage is the best method of 
governing a country. In the golden days of Greece, there 
were many slaves. The Roman Empire had many opinions 
and changes as to granting suffrage to people of other and

96 R ice et at, A ppellants, v. Elmore, A ppellee



A p p e n d ix 97

conquered lands. The idea of free voting and suffrage prac­
tically disappeared in the Middle Ages, and even today in 
many countries the right to cast a ballot is extremely lim­
ited and in some only the members of the one party con­
trolling the country, even though that party be made up of 
a minority of its inhabitants, may cast a ballot. But in these 
United States the time has passed for a discussion of 
whether we should have universal suffrage, irrespective of 
our views as to its desirability. The Constitution and laws 
of the United States provide for it and forbid discrimina­
tion because of race or creed. A free ballot to be freely ex­
ercised by all the citizens is the established American way 
of government. In the argument in this case, frequent ref­
erence was made to the desirability or undesirability of 
whites and blacks voting in the same primary, and it was 
suggested that the Negroes have a separate primary from 
the whites. It was further suggested that the parties in 
South Carolina are substantially the same as private clubs; 
and that a private club has a right to choose its member­
ship and the members to determine with whom they wish 
to associate. Of course that is true of any private club or 
private business or association, but private clubs and busi­
ness organizations do not vote and elect a President of the 
United States, and the Senators and members of the House 
of Representatives of our national congress; and under the 
law of our land, all citizens are entitled to a voice in such 
selections. It has been stated, and I believe it is a fact, that 
South Carolina is the only State which now conducts a pri­
mary election solely for whites. Since the Classic case Ne­
groes are voting in the Louisiana Primaries. Since Smith 
v. Allwright, Negroes are voting in Texas, and even in 
Georgia since Chapman v. King Negroes vote in the Demo­
cratic Primaries. I cannot see where the skies will fall if 
South Carolina is put in the same class with these and 
other states.

It is true that the General Assembly of the State of 
South Carolina repealed all laws relating to and governing 
primaries, and the Democratic Party in this State is not 
under statutory control, but to say that there is any ma­



98 R ic e  e t a l., A p p e l l a n t s , v . E l m o r e , A p p e l l e e

terial difference in the governance of the Democratic Party- 
in this State prior, and subsequent, to 1944 is pure sophis­
try. The same membership was there before and after, the 
same method of organization of club meetings, of delegates 
to County Conventions, delegates to State Conventions, ar­
ranging for enrollment, preparation of ballots, and all the 
other details incident to a primary election. Of course there 
were some changes from time to time to meet changing con­
ditions. There has always been and probably always will 
be necessity for some amendments and modifications. An 
examination of the primary statutes running back through 
the years will disclose amendments and minor changes in 
them also from time to time. The lowering of the voting 
age and the permission to use voting machines were merely 
incidents in the conduct of the primaries. To say that this 
is not the action of the State is evading the facts. Title 8, 
USCA, Section 31 refers to any “ constitution, law, custom 
usage or regulation of any state.”  The method used in the 
present Democratic Party of South Carolina is distinctly 
the same “ custom and usage” that has been in use long 
before 1944. As a matter of fact, it is a continuing and 
continuous process and has been so for many years, and 
the repeal of the statutes heretofore referred to makes 
practically no difference whatsoever in its life and growth. 
When the General Assembly, answering the call of Gov­
ernor Johnston, met in extraordinary session, it was wholly 
and solely for the purpose of preventing the Negro from 
gaining a right to vote in the primaries as granted under 
the doctrine of the Smith v. Allwright case. There was no 
concealment as to the reason for this call. And although 
the General Assembly had repealed all of the laws on the 
subject, the State Democratic Party, composed of the same 
persons who voted in the primaries two years before, had 
its meetings in its same clubs in the same precincts, had 
the same land of County Conventions and delegates, had 
the same kind of State Conventions and delegates, and 
adopted rules that were almost verbatim to the statutes 
that had been repealed. While the General Assembly re­
pealed the laws governing the primaries, the people of the 
State assembled in convention and enacted practically the



A p p e n d ix 99

same rules. These may not be laws or statutes in name but 
they certainly amount to “ custom, usage or regulation”  
and are the acts of the people. There was no evasion in the 
purpose of the Governor and members of the General As­
sembly and why should there now be evasion of the issue 
here presented? For too many years the people of this 
Country, and perhaps particularly of this State, have 
evaded realistic issues. In these days when this Nation and 
the Nations of the world are forced to face facts in a real­
istic manner, and when this conutry is taking the lead in 
maintaining the democratic process and attempting to show 
to the world that the American government and the Ameri­
can way of life is the fairest and best that has yet been 
suggested, it is time for us to take stock of our internal 
affairs.

“ Our case for democracy should be as strong as 
we can make it. It should rest on practical evidence 
that we have been able to put our own house in order.

“ For these compelling reasons, we can no longer 
afford the luxury of a leisurely attack upon prejudice 
and discrimination. There is much that state and local 
governments can do in providing positive safeguards 
for civil rights. But we cannot, any longer, await the 
growth of a will to action in the slowest state or the 
most backward community.

“ Our National Government must show the way.”

The foregoing words were spoken by the leader of the 
Democratic Party, President Truman, in an address de­
livered on June 29, 1947.

It is time for South Carolina to rejoin the union. It is 
time to fall in step with the other states and to adopt the 
American way of conducting elections.

I am of the opinion that the present Democratic Party 
in South Carolina is acting for and on behalf of the people 
of South Carolina; and that the Primary held by it is the 
only practical place where one can express a choice in se­
lecting federal and other officials. Racial distinctions can-



100 R ice et at, A ppellants, v. Elmore, A ppellee

not exist in the machinery that selects the officers and law­
makers of the United States; and all citizens of this State 
and Country are entitled to cast a free and untrammelled 
ballot in our elections, and if the only material and real­
istic elections are clothed with the name “ primary” , they 
are equally entitled to vote there.

The prayer of the complaint for a declaratory judg­
ment will therefore be granted by which it will be adjudged 
that the plaintiff and others similarly situated are entitled 
to be enrolled and to vote in the primaries conducted by the 
Democratic Party of South Carolina, and the defendants 
and their successors in office will be enjoined from exclud­
ing qualified voters from enrollment and casting ballots by 
reason of their not being persons of the white race. Ap­
propriate findings of fact and conclusions of law and an 
order carrying the foregoing into effect will be entered.

/ s /  J. W ATIES WARING 
United States District Judge

Charleston, S. C.,
July 12,1947.
A  TRUE COPY. ATTEST.
ERNEST L. ALLEN 

Clerk of U. S. District Court
East. Dist. So. Carolina
(Filed July 12,1947, Ernest L. Allen, C. D. C. U. S. E. 

D. S. C.)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

FINDINGS OF FACT

Civil Action No. 1702
1. All parties to this action, both plaintiff and defend­

ants, are citizens of the United States and of the State of 
South Carolina and are resident and domiciled in Richland 
County in said State.



A ppendix 101

2. The plaintiff at all times material to this action was 
and is a duly and legally qualified elector under the Consti­
tution and laws of the State of South Carolina, and sub­
ject to none of the disqualifications provided for voting un­
der the Constitution and laws of the State of South Caro­
lina.

3. Defendants Clay Rice, Mrs. A. B. Parker, Leone 
Bennett, Mrs. Sam Carter, Jr., Charles Stork, Mrs. H. E. 
Snipes, Mrs. Earl Lightsey and Mrs. E. L. Koon, at all 
times material to this action, are and were managers of 
the Democratic Primary in Ward 9 Precinct, Richland 
County, South Carolina, and the other defendants were and 
are members of the Richland County Democratic Execu­
tive Committee.

4. The Richland County Democratic Executive Com­
mittee represents the local county unit of the Democratic 
Party of South Carolina.

5. On August 13, 1946, there was held by the Demo­
cratic Party of South Carolina in the State of South Caro­
lina and in Richland County a primary for the nomination 
of Democratic nominees for the House of Representatives 
of the United States, for the Governor of South Carolina, 
and various other State and County offices, and on that day 
the plaintiff and a number of other Negroes, all qualified 
electors under the Constitution of the State of South Caro­
lina, presented themselves at the regular polling place of 
Ward 9 Precinct of Richland County, South Carolina, dur­
ing the regular hours that the polling place was open and 
requested ballots and permission to vote in the said pri­
mary, but the managers refused to permit them to vote be­
cause they were not white Democrats and were not duly 
enrolled, and in this refusal the managers were acting pur­
suant to the rules and regulations of the Democratic Party 
of South Carolina and the instructions of the Chairman and 
members of the Richland County Democratic Executive 
Committee.

6. Prior to 1943 primaries were held in South Carolina 
by the Democratic Party of that State in conformity with



102 R ice et at, A ppellants, v. Elmore, A ppellee

the statutes of the State (enacted under authority of Ar­
ticle II, Section 10 of the Constitution of the State) and of
the rules of the said Party adopted at State Conventions 
held every two years.

7. A  number of the statewide statutes regulating the 
primaries of political parties in South Carolina were re­
pealed at the 1943 Session of the General Assembly of 
South Carolina, effective June 1, 1944. On April 20, 1944, 
the General Assembly of South Carolina passed approxi­
mately 150 acts repealing all existing statutes which con­
tained any reference directly or indirectly to primary elec­
tions within the State, including an act calling for the re­
peal of Secion 10 of Article II of the Constitution of South 
Carolina (1895), the only Constitutional provision mention­
ing primary elections, and set in motion the machinery to 
repeal that provision. Subsequently, and on February 14, 
1945, the Constitution of South Carolina was so amended 
by Ratification by the General Assembly of South Carolina 
of said Constitutional Amendment.

8. The 1944 Special Session of the General Assembly 
of South Carolina was called by the Governor for the spe­
cific purpose of repealing all statutes relating to primary 
elections in order to allow the Democratic Party of this 
State to continue to limit its membership to whites.

9. The 1944 Convention of the Democratic Party of 
South Carolina, following the same procedure as in past 
general election years, on May 17, 1944, repealed the old 
rules and adopted new rules governing the party.

10. The 1944 rules made no change as to the rules for 
membership in the party and voting in the primary which 
limited membership and voting in primary as in the 1942 
rule to persons more than 21 years of age who were white 
Democrats.

11. The 1946 rules extended the age limit to all white 
Democrats over 18 years of age, and added some other 
minor changes but were substantially the same as those of 
1944.



A ppendix 103

12. The general method of operating the Democratic 
Party of South Carolina such as election of delegates to 
County and State Conventions, election of officers, execu­
tive committeemen, and holding of County and State Con­
ventions has been in the same general manner since April, 
1944, as before that time.

13. There has been no material change since April, 
1944, in the manner in which primary elections have been 
conducted in South Carolina from the manner in which 
they were conducted prior to April, 1944.

14. During the past 25 years the Democratic Party of 
South Carolina has been the only political party in South 
Carolina which has held state-wide primaries for nomina­
tion of candidates for Federal and State offices.

15. Although the officers of the Democratic Party of 
South Carolina vary from year to year, the membership 
remains essentially the same.

16. The Democratic Party of South Carolina has al­
ways restricted its membership and eligibility to vote in 
primaries to white persons.

17. In each general election year, the Democratic Party 
of South Carolina repeals all existing rules and adopts new 
rules for the conduct of the party and primaries for the 
ensuing years.

18. All primaries in South Carolina prior to and sub­
sequent to April, 1944, have been conducted in conformity 
to the rules promulgated by the Democratic Party of South 
Carolina in each successive general election year.

19. There is no General Election ballot in South Caro­
lina. The only printed ballots available in General Elections 
in South Carolina are ballots prepared by the political par­
ties giving only the names of their respective candidates.

20. Since 1900 every Governor, member of the Gen­
eral Assembly, United States Representative, and United 
States Senator of the State of South Carolina elected by 
the people of South Carolina in the General Elections was



a nominee of the then existing Democratic Party of South 
Carolina.

21. In 1946 for the office of Governor 290,223 votes 
were cast in the first Democratic Primary held in August; 
253,589 votes were cast in the second primary held on Sep­
tember 3, 1946; and only 26,326 votes were cast in the Gen­
eral Election for the office of Governor.

CONCLUSIONS OF LAW
1. This court has jurisdiction of this case under the 

United States Constitution, Article I, Secions 2 and 4, and 
the Fourteenth and Fifteenth Amendments; and also under 
Title 8, USCA, Section 31 and Section 43; and also Title 
28, USCA, Section 41, Subdivisions 1, 11 and 14; and also 
Title 28, USCA, Section 400.

2. In the election machinery of the State of South Car­
olina, the primary is an integral part of the procedure of 
choice of elected officials of South Carolina, including 
United States Senators and Representatives, and the Dem­
ocratic Primary of South Carolina effectively controls the 
choice of these elected officials of South Carolina.

3. The Democratic Primary in South Carolina is the 
only election at which a qualified elector can make a mean­
ingful choice of elected officials within the meaning of the 
United States Constitution.

4. The Democratic Primary of South Carolina is sub­
ject to the provisions of Article I, Sections 2 and 4 of the 
United States Constitution.

5. The defendants in conducting the Democratic Pri­
mary of 1946 were performing an essential governmental 
function of the State of South Carolina and in doing so were 
subject to the provisions of the Fourteenth and Fifteenth 
Amendments to the United States Constitution.

6. There is an actual controversy between the parties 
and pursuant to Title 28, USCA, Section 400 it is hereby 
declared and adjudged that the policy, custom and usage

104 Rice et al., A ppellants, v. Elmore, A ppellee



A ppendix 105

by which qualified Negro electors are denied the right to 
vote in Democratic Primary elections in South Carolina for 
United States Senators and United States Representatives 
is in violation of Article I, Sections 2 and 4 of the United 
States Constitution, and that said policy, custom and usage 
is likewise in violation of the Fourteenth and Fifteenth 
Amendments to the United States Constitution.

7. The plaintiff is entitled to a permanent injunction 
forever restraining the defendants and their successors 
from maintaining the policy, custom and usage of prevent­
ing qualified Negro electors from voting in primary elec­
tions for United States Senators and United States Rep­
resentatives.

8. The plaintiff is entitled to a trial by a jury of the 
question of what damages he has suffered.

J. WATTES WARING,
United States District Judge.

Charleston, S. C.,
July 12, 1947.
A  TRUE COPY. ATTEST.
ERNEST L. ALLEN,

Clerk of U. S. District Court,
Eastern District, South Carolina.

(Filed July 12, 1947, Ernest L. Allen,.)

Civil Action No. 1702 

ORDER
In accordance with the opinion, findings of fact and 

conclusions of law filed in the above-entitled case, it is

ORDERED
1. That the plaintiff, George Elmore, and others sim­

ilarly situated, are hereby declared to be duly qualified 
electors of the State of South Carolina and entitled to vote 
in the Democratic Primaries as conducted by the Demo­



106 R ice et al., A ppellants, v. Elmore, A ppellee

cratic Party of the State of South Carolina; and the pol­
icy, custom and usage of the defendants in denying plain­
tiff and other qualified Negro electors the right to vote in 
Democratic Primary elections in South Carolina solely on 
account of their race or color is unconstitutional as a vio­
lation of Article I, Sections 2 and 4 of the Constitution of 
the United States and of the Fourteenth and Fifteenth 
Amendments thereof.

2. That the defendants, and each of them, and their re­
spective successors in office, are permanently restrained 
and enjoined from denying qualified Negro electors the 
right to vote in Democratic Primary elections in South Car­
olina solely because of race or color.

This Court has not passed upon the demand of the 
plaintiff for damages and the plaintiff may within a rea­
sonable time apply for a trial and hearing on that subject 
if he be so advised.

/ s /  J. W ATIES WARING,
United States District Judge.

Charleston, S. C.,
July 12, 1947.
A TRUE COPY. ATTEST.
ERNEST L. ALLEN,

Clerk of U. S. District Court,
Eastern District, South Carolina.
(Filed July 12, 1947, Ernest L. Allen, C. D. C. U. S. E. 

D. S. C.)

PORTION OF DESIGNATION OF RECORD DATED
AUGUST 15, 1947, CONTAINING “ POINTS”

YOU WILL TAKE NOTICE that for the convenience 
of all parties concerned, defendants-appellants state below 
a Statement of Points, with the reservation, however, that 
in view of the fact that appellants are proposing to incor­
porate a complete record of all proceedings and evidence 
in the action as and for the record on appeal, no such state­
ment of points is actually required under the existing rules



A ppendix 107

of court and appellants expressly reserve the right to raise 
any other additional points which may occur or appear to 
them to be desirable in the course of the preparation of the 
argument or at the hearing on the appeal:

1.
The Court erred in failing to sustain defendant’s mo­

tion to dismiss the Complaint for lack of jurisdiction, in­
asmuch as it appeared upon the face of the Complaint that 
no constitutional rights of the plaintiff were involved.

2.

The Court erred in assuming jurisdiction of this cause 
and undertaking to grant the relief prayed for for the rea­
son that it appeared from all the evidence taken in the cause 
that no constitutional rights of the plaintiff were involved 
and hence the Court was without jurisdiction of the sub­
ject matter of this action.

3.
The Court erred in failing to sustain defendants’ mo­

tion to dismiss the Complaint for failure to state facts suf­
ficient to constitute a cause of action for the reason that it 
appeared upon the face of the Complaint that the plaintiff 
was not entitled to the relief demanded.

4.
The Court erred in failing to find the Democratic Party 

of South Caroina was, at the time complained of by the 
plaintiff, a private, voluntary association, wholly unregu­
lated by statute and hence fully authorized to fix its own 
rules for membership without violating any constitutional 
rights of the plaintiff.

5.
The Court erred in failing to find as a matter of fact 

that the Democratic party of South Carolina, at the times 
complained of, was a private, voluntary association ante­
dating any statutory regulation and that upon the repeal 
in 1943 and 1944 of the statutes regulating said association, 
the said party resumed its status as a private, voluntary as­
sociation, with full power to fix its rules of membership 
without violating any constitutional rights.



108 R ice et al., A ppellants, v. Elmore, A ppellee

6.
The Court erred in holding that the Democratic party 

of South Carolina was an agency of the State of South Car­
olina, it being submitted that said holding was wholly un­
supported by any proper evidence.

7.
The Court erred in holding that the policy, custom and 

usage by the defendants in denying qualified Negro electors 
the right to vote in Democratic Primaries in South Carolina 
solely on account of race or color was unconstitutional as 
a violation of Article I, Sections 2 and 4 of the United 
States Constitution and of the Fourteenth and Fifteenth 
Amendments.

8.
The Court erred in permanently restraining and en­

joining the defendants from denying qualified Negro elec­
tors the right to vote in Democratic Primary elections in 
South Carolina solely because of race or color.

9.
The Court erred in finding and deciding that there has 

been no material change since April, 1944, in the manner in 
which primary elections have been conducted in South Car­
olina from the manner in which they were conducted prior 
to April, 1944.

10.
,The Court erred in failing to find that there were num­

erous substantial differences in the rules of the Democratic 
Party after the repealing statutes of 1944 as compared with 
the rules and statutes governing said party previous to 
such repeal.

11.
The Court erred in holding that in the election ma­

chinery of South Carolina, the primary is an integral part 
of the procedure of choice of electing officials of South Car­
olina, including United States Senators and Representa­
tives and that the Democratic primary of South Carolina 
effectively controls the choice of these elected officials of 
South Carolina.



A ppendix 109

12.
The Court erred in holding that the Democratic Pri­

mary in South Carolina is the only election at which a qual­
ified elector can make a meaningful choice of elected officials 
within the meaning of the United States Constitution.

13.
The Court erred in failing to hold that there was no 

action on the part of the State of South Carolina in deny­
ing the plaintiff the right to vote in the Democratic pri­
maries, and that there being no state action, plaintiff was 
not deprived of any constitutional rights.

14.
The Court erred in failing to hold that there could be 

no violation of plaintiff’s constitutional rights in the re­
spects complained of unless the Democratic primary was 
by statute made an essential part of the electoral process 
so that it was necessary by statute to vote in the primary 
in order to have any effect in the General Election.

15.
The Court erred in failing to hold that the Democratic 

primary and the Democratic party were not, at the time 
complained of by the plaintiff, by statute made an essen­
tial part of the electoral process in the State of South Car­
olina for the choice of United States Congressmen or Sen­
ators.

16.
The Court erred in holding that the Democratic pri­

mary of South Carolina is subject to the provisions of A r­
ticle 1, Sections 2 and 4 of the United States Constitution.

17.
The Court erred in holding that the defendants in con­

ducting the Democratic primary of 1946 were performing 
an essential governmental function of the State of South 
Carolina and in doing so were subject to the provisions of 
the Fourteenth and Fifteenth Amendments to the United 
States Constitution.



110 R ice et al., A ppellants, v. E lmore, A ppellee

18.
The Court erred in holding that the Democratic pri­

mary conducted at the times alleged in the complaint was 
an election within the meaning of Article 1, Sections 2 and 
4 of the United States Constitution and of the Fourteenth 
and Fifteenth Amendments.

19.
The Court erred in holding that the plaintiff had been 

deprived of civil rights guaranteed under Title 8 U. S. 
C. A., section 31.

20.
The Court erred in holding that Title 8 U. S. C. A., sec­

tion 31, created a cause of action or authorized any suit to 
be brought thereunder.

21.
The Court erred in failing to find in his “ findings 

of fact and conclusions of law”  the facts in their entirety 
as stipulated by counsel of record and as set forth in the 
Stipulation.

22.
The Court erred in failing to hold that it had no juris­

diction to render a declaratory judgment in this case for 
the reason that there was no actual justiciable controversy 
between the plaintiff and the parties defendant.

23.
The Court erred in holding and ordering that all qual­

ified electors had the right to vote in all Democratic pri­
maries, for the reason that such attempted relief was not 
only unwarranted by the facts and the law, but exceeded 
the relief demanded in the Complaint.

24.
The Court erred in failing to grant the defendants’ 

motion for an order making the complaint more definite and 
certain by separately stating the alleged causes of action 
therein contained, for the reason that such an order would 
have facilitated and clarified the hearing of the action.



A ppendix 111

25.
The Court erred in failing to grant defendants’ mo­

tion to strike certain allegations of the Complaint for the 
reason that such allegations were irrelevant and the con­
tentions therein served only to confuse and decloud the true 
issues.

26.
The Court erred in failing to hold that it is a univer­

sally established rule of law that in private voluntary asso­
ciations, such as the Democratic party of South Carolina, 
which is wholly unregulated by statute, the membership has 
a complete and unrestricted delectus personarum, that is a 
choice of membership, and no one can complain of the vio­
lations of any Constitutional rights by being excluded from 
membership therein.

27.
The Court erred in failing to hold that the Smith v. 

Allwright and like cases, including the Classic Case, are 
to be distinguished from the case at bar in that in such cases 
the nominating primary involved was by statute made an 
essential part of the statutory electoral process so that it 
was by statute made necessary to vote in the primary in 
order to cast any effective vote in the general election, and 
such cases depended wholly upon the existence of such stat­
utory control of the primary.

28.
The Court erred in failing to hold that in view of the 

fact that the State of South Carolina does not, and did not 
at the times complained of in the Complaint, by any law or 
by any statute regulate the Democratic nominating primary 
and the defendants at the times complained of were not act­
ing under color of any State statute or law of the State of 
South Carolina, but the said defendants were acting wholly 
under the rules of the Democratic party enforceable only 
by expulsion from the party, the Federal Courts are wholly 
without jurisdiction of this controversy and without juris­
diction to enter any declaratory judgment.



112 R ice et al., A ppellants, v. Elmore, A ppellee

29.
The Court erred in failing to hold that the Courts are 

under a positive obligation to protect the traditional and 
Constitutional rights of the citizens of this State and of the 
Democratic party of South Carolina to choose membership 
of their party under the Constitutional right to life, liberty 
and the pursuit of happiness and under the constitutional 
provision “ peaceably to assemble” . (Amendment No. 1 of 
the United States Constitution.)
Columbia, S. C.,
August 15, 1947.









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