Smith v Allwright Petition for Writ Certiorari

    IN  THE

Supreme Court of the United States
October Term, 1943 

No.

LON NIE E. SMITH,
Petitioner,

vs.
S. E. ALLW RIG H T, Election Judge, and JAMES E. LIUZZA. 

Associate Election Judge, 48th Precinct of Harris County, 
Texas, ' Respondent.

PETITION FOR WRIT OF CERTIORARI AND  
BRIEF IN SUPPORT THEREOF, TO THE UNITED 
STATES CIRCUIT COURT OF APPEALS FOR THE 

FIFTH CIRCUIT.

W illiam  H . H astie, 
Washington, D. C.,

W . R obert M ing, Jr., 
Chicago, 111.,

George M. Johnson , 
Berkeley, Calif.,

L eon A. R ansom , 
Columbus, Ohio,

Prentice T homas, 
Louisville, Ky.,

Carter W esley, 
Houston, Texas,

Of Counsel,

T hurgood M arshall,
New York,

W . J. D u rh a m ,
Sherman, Texas,

Attorneys for Petitioner.



INDEX FOR PETITION.

PAGE

P art  O n e :

Summary Statement of Matter Involved---------------- 2
I. Statement of the Case_______ ___ _________ 2

II. Salient Facts ____________________________ 4

P art  T w o :

Question Presented _______________________________  7

P art  T h r e e :

Reasons Relied on for Allowance of the W rit______ 7
Conclusion _____.•___________________________________  8

INDEX FOR BRIEF.

Opinion of Court Below_______________________________  9
Jurisdiction ________________________________________   9
Statement of the Case_________________________________ 10
Errors Below Relied Upon Here________________    10
Argument __________________________________________   10

I. The decision of the Circuit Court of Appeals 
in this case is inconsistent with the decision of 
this Court in United States v. Classic_______  10

II. Ratio decidendi of Grovey v. Townsend should 
be re-examined in the light of new facts dis­
closed by the present record__________________ 15

III. Inconsistency between the decisions of this 
Court in Grovey v. Townsend and United 
States v. Classic apparent in their application 
to the instant case should be resolved_________  20
A. Grovey v. Townsend and United States v. 

Classic present inconsistent theories as to 
Federal authority over primaries which 
decide elections __________________________  21



11
PAGE

B. Grovey v. Townsend and United States v. 
Classic present inconsistent theories of 
what constitutes “ state action”  in the con­
duct of the primaries--------------------------------  23

Conclusion -------------------------------------------------------------   24

Table of Cases.

Bell v. Hill, 123 Tex. 531, 74 S. W. (2d) 113 (1938)-------- 17
Cf. Ex Parte Virginia, 100 U. S. 346 (1879)___________  14
Grovey v. Townsend, 295 U. S. 45 (1935)-------------------15,17

19, 20, 21, 23
Hague v. Committee for Industrial Organization, 307

U. S. 496, 507, 519 (1939)________________________  14
Home Telephone & Telegraph Co. v. Los Angeles, 227 

U. S. 278 (1913)__________________________________ 14
Lane v. Wilson, 307 U. S. 268 (1939)__________________ 14
Myers v. Anderson, 238 U. S. 368 (1914)--------------14,15,16
Nixon v. Herndon, 273 U. S. 536, 540 (1927)___________  12
United States v. Classic, 313 U. S. 299 (1941)_____11,12,14

20, 23
Statutes.

28 U. S. C., Sec. 347 (A )_____________________________  9
Sections 31 and 43 of Title 8, U. S. C--------------- ---- -----  10
Section 43, Title 8, U. S. C---------------------------------- --- .13,14
Section 52, Title 8, U. S. C...... ...... ..... —--- ----------------- 13,14
Criminal Code (18 U. S. C., Secs. 51 and 52)---------------- 23
General Laws of Texas, 1903, Chapter 51, p. 133---------  5
2nd Civil Rights Act (16 Stat. 140 and 433)________—  13

Other Authorities Cited.

American Parties and Elections______________________  12
The Pate of the Direct Primary______________________  12
10 National Municipal Review, 23, 24-------------------------  12
Party Government in the House of Representatives—  12
Primary Elections ---------------------------------------------------  12
United States Census (1940)--------------------------------------  19



IN  T H E

Supreme Court of the United States
October Term, 1943

No.

L o n n ie  E. S m it h ,
Petitioner,

vs.

S. E. A l l w r ig h t , Election Judge, and 
J am es  J . L u izza , Associate Election 
Judge, 48tli Precinct of Harris County, 
Texas,

Respondent.

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

FOR THE FIFTH CIRCUIT.

To the Honorable, the Chief Justice of the United States 
and the Associate Justices of the Supreme Court of 
the United States:

Petitioner Lonnie E. Smith, appellant below, respect­
fully prays that a writ of certiorari issue to review the 
judgment of the Circuit Court of Appeals for the Fifth 
Circuit (R. 152), which affirmed a final judgment for the 
respondents, defendants below, by the District Court of the 
United States for the Southern District of Texas, Houston 
Division (R. 85-87).



2

The opinion of the Circuit Court of Appeals appears in 
the record herein (E. 150-151) and is reported in 131 F. 
(2d) 593.

The jurisdiction of this Court is invoked under Section 
240(2) of the Judicial Code (28 U. S. C., sec. 347 (a )).

PART ONE.

Summary Statement of Matter Involved.

I.

Statement of the Case.

The amended complaint alleged that on July 27, 1940, 
and on August 24, 1940, the respondents, acting as election 
judges of the 48th Precinct of Harris County, Texas, de­
nied the petitioner and other qualified electors the right to 
vote in the primaries for selection of candidates of the 
Democratic party for the offices of U. S. Senator and Rep­
resentatives in Congress. Petitioner sought damages for 
himself and a declaratory judgment on behalf of himself 
and others similarly situated that the actions of the respon­
dents in refusing to permit qualified Negro electors to vote 
in these primaries violated Sections 31 and 43 of Title 8 
of the United States Code in that they had subjected him 
to a deprivation of rights secured by Sections 2 and 4 of 
Article I, and the 14th, 15tli, and 17th Amendments of the 
United States Constitution (R. 4-16). The amended answer 
admitted that respondents refused to permit petitioner to 
vote, but denied that their actions violated the United States 
Constitution or laws, because the Democratic primary in



Texas was “ a political party affair”  not subject to federal 
control (R. 59-71). Both parties agreed to stipulations as to 
certain material facts (R. 71-76).

The case was heard upon the stipulations (R. 71-76), 
depositions (R. 118-147), and oral testimony (R. 96-109). 
On May 11, 1942, District Judge T. M. K e n n e r ly  filed 
Findings of Fact and Conclusions of Law (R. 80-85), and 
on May 30, 1942, entered a final judgment that: (1) the 
petitioner ‘ ‘ take nothing against”  respondents, and (2) 
issued a declaratory judgment “ that the practice of the 
defendants (respondents here) in enforcing and maintain­
ing the policy, custom, and usage of which planitiff (peti­
tioner here) and other Negro citizens similarly situated 
who are qualified electors are denied the right to cast bal­
lots at the Democratic Primary Elections in Texas, solely 
on account of their race or color, is constitutional, and does 
not deny or abridge their rights to vote within the meaning 
of the Fourteenth, Fifteenth, or Seventeenth Amendments 
to the United States Constitution, or Sections 2 and 4 of 
Article I of the United States Constitution”  (R. 86).1

Notice of appeal to the United States Circuit Court of 
Appeals for the Fifth Circuit was filed by petitioner on 
June 6, 1942 (R. 148). On November 30, 1942, the United 
States Circuit Court of Appeals for the Fifth Circuit af­
firmed the judgment of the lower court (R. 153).2 Petition 
for rehearing was promptly filed and denied on January 21, 
1943, without opinion (R. 160).

1 The District Court reached the conclusion: “ I, therefore, follow 
Grovey v. Townsend, and render judgment for defendants” (R . 85).

2 The per curiam opinion of the Circuit Court of Appeals con­
cluded : “ The opinion in that case (U. S. v. Classic) did not overrule 
or even mention Grovey v. Townsend (supra). W e may not overrule 
it. On its authority the judgment is affirmed” (R . 152).



4

II.

Salient Facts.

All parties to this action, both petitioner and respon­
dents, are citizens of the United States and of the State of 
Texas, and are residents and domiciled in said State (R. 71).

Petitioner is a Negro, native born citizen of the United 
States residing in Houston, Harris County, Texas, and has 
been a duly and legally qualified elector under the laws of 
the United States and the State of Texas, and is subject to 
no disqualification (R. 71).

Petitioner is a believer in the tenets of the Democratic 
party and, as found by the district judge, is a Democrat 
(R. 81).

On July 27, 1940, a primary, and on August 24, 1940, a 
“ run o ff”  primary were held in Harris County, Texas, for 
nomination of candidates upon the Democratic ticket for the 
offices of U. S. Senator, U. S. Congressman, Governor and 
other State and local officers. Prior to this time the respon­
dents were appointed and qualified as Presiding Judge and 
Associate Judge of Primaries in Precinct 48, Harris County, 
Texas (R. 72, 81).

On July 27, 1940, petitioner presented himself to vote in 
the said Democratic primary, at the regular polling place 
for the 48th Precinct with his poll tax receipt and requested 
to be permitted to vote. Respondents refused him a ballot 
because of his race and color, in accordance with alleged 
instructions of the Democratic party of Texas (R. 73, 81).

The State of Texas has prescribed the qualifications for 
electors in Article 6 of the Texas Constitution and Article



5

2955 of the Revised Civil Statutes of Texas, which statute 
sets forth identical qualifications for voting in both “ pri­
mary”  and “ general”  elections (R. 11,12, 23).

Primaries in Texas are created, required and controlled 
in minute detail by an intricate statutory scheme.3

According to the stipulations of facts made a part of 
the Findings of Facts of District Cohrt: “ At all times 
material herein the only State-Wide Primaries held in 
Texas have been for nominees of the Democratic Party”  
(R. 72).

While there is a statutory provision requiring the pay­
ment of certain primary election expenses by the candi­
dates, all other expenses^are borne by the State of Texas. 
The County Clerk, the Tax Assessor and Collector, and the 
County Judge of Harris 'County Misperformed duties re­
quired of them undqr Articles 3100-3153^evised Civil Stat­
utes of Texas, in connection with holding of primaries on 
July 27, 1940 and August 24,1940, without cost ro the candi­
dates, or the Democratic party, or any official thereof (R. 
73).

After such primary the names of the candidates receiv­
ing the nomination are certified by the County Executive

3 The present election laws of Texas originated with the so-called 
“ Terrell Law,” being “ An Act to regulate elections and to prescribe 
penalties for its violation” (General Laws of Texas, 1903, Chapter 51, 
p. 133). Sections 82 to 107 of this statute set out the requirements for 
the holding of primary elections. In 1905 that Statute was repealed 
and in place thereof Chapter 11 of the General Laws of Texas, 1905, 
was enacted. These statutes established almost identical requirements 
for both the “ primary” and “ general” elections as integral parts of the 
election machinery for the State of Texas. A  comparative table of 
present election laws is set out in Appendix C filed herewith.

Sections of the Constitution of the State of Texas and Sections of 
the Texas Election statutes are set forth in Appendix D filed herewith.



6

Committee to the State Executive Committee; the State 
Execulive Committee, in turn, certifies said nominees to the 
Secretary of State who places the names of these candidates 
on the General Election Ballot to be voted on in the General 
Election. Such services are rendered by the Secretary of 
State as a part of his governmental function and are paid 
for by the State of Texas. Said Secretary of State also 
certifies other Party candidates as well as Independent 
candidates for places upon the General Election Ballot; 
such services as rendered by the Secretary of State are paid 
by the State of Texas (R. 74).

contribution to the Harris County Democratic Executive 
Committee, following the assessment so levied”  (R. 76).

The stipulation of facts agreed upon by petitioner and 
respondents provides that: “ Since 1859 all Democratic 
nominees, for Congress, Senate and Governor, have been 
elected in Texas with two exceptions”  (R. 72).



7

PART TW O.

Question Presented.

Does the Constitution of the United States prohibit the 
exclusion of qualified Negro electors f  rom voting in primary 
elections which are an integral part of the election 
machinery of the State and which are determinative of the 
choice of federal officers?

PART THREE.

Reasons Relied on for Allowance of the Writ.

I. T h e  decision  of t h e  C ir cu it  C ourt of A ppeals  in

THIS CASE IS INCONSISTENT WITH THE DECISION OF THIS COURT
in  U n ited  S tates  v . C lassic .

II. R atio  decidendi of G rovey v . T ow n sen d  sh o u ld  be 
re -exam in ed  in  t h e  l ig h t  of n e w  facts  disclosed by  t h e  
presen t  record.

III. I n co n sisten cy  betw een  t h e  decisions of t h is  
C ourt in  G rovey v . T ow n sen d  and  U n ited  S tates  v . C lassic

APPARENT IN THEIR APPLICATION TO THE INSTANT CASE SHOULD 
BE RESOLVED.

A. G rovey v. T ow n sen d  and  U n ited  S tates  v . C lassic

PRESENT INCONSISTENT THEORIES AS TO FEDERAL AUTHORITY 
OVER PRIMARIES WHICH DECIDE ELECTIONS.

B. G rovey v. T ow n sen d  and  U n ited  S tates v . C lassic

PRESENT INCONSISTENT THEORIES OF WHAT CONSTITUTES 
“ STATE ACTION”  IN THE CONDUCT OF PRIMARIES.



8

Conclusion.
Wherefore, it is respectfully submitted that this 

petition for writ of certiorari to review the judgment 
of the United States Circuit Court of Appeals for the 
Fifth Circuit, should be granted.

T hurgood M a r sh a ll ,
New York,

W. J. Durham,
Sherman, Texas,

Attorneys for Petitioner.

W il l ia m  H . H astie ,
Washington, D. C.,

W . R obert M in g , J r .,
Chicago, 111.,

G eorge M . J o h n s o n ,
Berkeley, Calif.,

L eon  A. R a n so m ,
Columbus, Ohio,

P ren tice  T h o m a s ,
Louisville, Ky.,

C arter W esley ,
Houston, Texas,

Of Counsel.



IN  T H E

Supreme Court of the United States
October Term, 1943

No.

L o n n ie  E. S m it h ,
Petitioner,

vs.

S. E. A l l w r ig h t , Election Judge, and 
J am es  J. L tjizza, Associate Election 
Judge, 48th Precinct of Harris County, 
Texas,

Respondent.

BRIEF IN SUPPORT OF PETITION FOR WRIT OF 
CERTIORARI TO THE UNITED STATES CIRCUIT 
COURT OF APPEALS FOR THE FIFTH CIRCUIT.

Opinion of Court Below.

The opinion of the Circuit Court of Appeals is reported 
in 131 F. (2d) 593, as well as in the record filed in this cause 
(R. 150-151).

Jurisdiction.

The jurisdiction of the Court is invoked under Section 
240(2) of the judicial code (28 U. S. C. Sec. 347 (A )).

The date of the judgment in this case is November 30, 
1942 (R. 152). Petition for rehearing was filed within the

9



10

time provided by the Rules of the Circuit Court of Appeals 
for the Fifth Circuit and was denied on January 21, 1943 
(R. 160).

Statement of the Case.

The statement of the case and a statement of the salient 
facts from the record are fully set forth in the accompany­
ing petition for certiorari. Any necessary elaboration on 
the finding of the points involved will be made in the course 
of the argument.

Errors Below Relied Upon Here.

I . T h e  decision  of t h e  C ir cu it  C ourt of A ppeals  in

THIS CASE IS INCONSISTENT WITH THE DECISION OF THIS COURT
in  U n ited  S tates  v . C lassic .

II. R atio  decidendi of G rovet  v . T ow n sen d  sh o u ld  be

RE-EXAMINED IN THE LIGHT OF NEW FACTS DISCLOSED BY THE 
PRESENT RECORD.

III. I n co n sisten cy  betw een  t h e  decisions of t h is  
C ourt in  G rovey v . T ow n sen d  an d  U n ited  S tates  v . C lassic

APPARENT IN THEIR APPLICATION TO THE INSTANT CASE SHOULD 
BE RESOLVED.

Argument.

I.

The decision of the Circuit Court of Appeals in this case 
is inconsistent with the decision of this Court in United 
States v. Classic.

jQjU
In his complaint pe&lemer charged that fyda^omlents had 

violated Sections 31 and 43 of Title 8, United States Code, 
in that they had subjected him to a deprivation of rights



11

secured by Sections 2 and 4 of Article I and the
17th Amendment^ of the Constitution of (he United 

States. The courts below held that the2jCefi«oner, a quali­
fied elector of the State of Texas, could not maintain an 
action for damages against the "’r ^  poMentls, 
primary election judges, who refused to permit 
and other qualified electors to vote in the Democratic pri­
mary election^held July 27, 1940, and August 24, 1940, in 
voting precinct 48, Harris County, Texas. Those rulings 
were inconsistent with the decision of this Court in United 
States v. Classic, 313 U. S. 299 (1941).

Democratic v

Petitioner seeks to maintain this action to obtain redress 
for deprivation of a constitutional right specifically recog­
nized and described by this Court in the Classic case. There, 
relying on Section 2 of Article I this Court said: “ The 
right of the people 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”  (313 U. S. 299, 314).

In the Classic case, as in the instant case, the acts 
complained of had been committed in connection with pri­
mary elections. Nevertheless, this Court concluded that 
those acts were an interference with a right “ secured by 
the Constitution,”  saying:

“ Where the state law has made the primary an integ­
ral 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 pri­
mary, is rightfully included in the right in Article I, 
Section 2. 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 elec­
tion machinery, whether the voter exercises his right



12

at a party primary which invariably, sometimes or 
never determines the ultimate choice of the repre­
sentative”  (313 U. S. 299, 318).1

In the instant case the record demonstrates that the laws 
of the State of Texas have made the primary “ an integral 
part of the procedure of choice.”  No valid distinction can 
be drawn between the Texas and Louisiana statutes in this 
connection.2 Moreover, the history of Texas elections shows 
that the Democratic primary “ effectively controls the 
choice”  of the elected representatives in the State,3 and re­
spondents in this case have so stipulated.4

While United States v. Classic, supra, was a criminal 
case, the statutory prohibition (18 U. S. C. sec. 51, 52), in­
volved there closely parallels Section 43 of Title 8 of the

^"Compare statement by Holmes, in Nixon v. Herndon (273 
U. S. 536, 540) 1927.

“ If the defendants’ conduct was a wrong to the plaintiff the 
same reasons that allow a recovery for denying the plaintiff a vote 
at a final election allow it for denying a vote at the primary election 
that may determine the final result.”

2 See Appendix B for a comparative table of the Texas and Louisi­
ana constitutional and statutory provisions applicable to primary elec­
tions.

3 See: American Parties and Elections by Edward A. Sait (1942), 
pp. 63 et seq.: The Fate of the Direct Primary by Charles Evans 
Hughes, 10 National Municipal Review 23, 24; Party Government in 
the House of Representatives by Hasbrouck (1927) pp. 172, 176, 177; 
Primary Elections by Merriam and Overacker (1928) pp. 267-279.

On the great decrease in the vote cast in the general election 
from that cast at the primary in “ one-party” areas of the country, 
see George C. Stoney, Suffrage in the South, 29 Survey Graphic 
163, 164 (1940). In the 1938 Texas primaries, 34.5% of the adults 
voted, while in the general election the figure dwindled to 15%.

4 Both parties agreed to the following stipulation: “ Since 1859 all 
Democratic nominees, for Congress, Senate and Governor, have been 
elected in Texas, with two exceptions” (R . 72).



13

United States Code upon which petitioner here relies. These 
sections of the United States Code are parts of the same 
Acts of Congress, the legislative history of which demon­
strates that they were intended to provide both civil and 
criminal redress for the same wrongs.5 Both the criminal 
sanction of Section 52 of Title 18 and the civil sanction of 
Section 43 of Title 8 are aimed at any deprivation of con-

5 After the adoption of the 13th Amendment, a bill, which became 
the first Civil Rights Act (14 Stat. 27) was introduced, the major 
purpose of which was to secure to the recently freed Negroes all the 
civil rights secured to white men including language similar to that in 
Section 43 of title 8 and section 52 of title 18. The 2nd Civil Rights 
Act (16 Stat. 140— 16 Stat. 433) was passed for the express purpose 
of enforcing the provisions of the 14th Amendment. The third civil 
rights act, adopted April 20, 1871 (17 Stat. 13), reenacted the same 
provisions.

Section 43 of Title 8 and Section 52 of the United States Civil Code 
were both parts of the same original bill and although one provides for
civil redress and the other for crim 
sections is closely similar:

Sec. 43 of Title 8

“ 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 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 action at law, suit in 
equity, or other proper proceeding 
for redress. R. S. Sec. 1979.”

redress, the language of the two

Sec. 52 of Criminal Code

“ Whoever, under color of any 
law, statute, ordinance, regulation, 
or custom, willfully subjects, or 
causes to be subjected, any inhab­
itant of any State, Territory, or 
District to the deprivation of any 
rights, privileges, or immunities 
secured or protected by the Con­
stitution and laws of the United 
States, or to different punish­
ments, pains, or penalities, on ac­
count of such inhabitant being an 
alien, or by reason of his color, or 
race, than are prescribed for the 
punishment of citizens, shall be 
fined not more than $1,000, or im­
prisoned not more than one year, 
or both.” (R . S. Sec. 5510, Mar. 
4, 1909, c. 321, sec. 20, 35, Stat. 
1092.)



14

stitutional right “ under color of any statute, ordinance, 
regulation, custom, or usage of any state or territory.”  
Election judges in Texas, just as in Louisiana, have author­
ity to act in primary elections only by virtue of the State 
laws.0 The decision of the Court below is inconsistent with 
the determination made by this Court in the Classic case 
that the “ alleged acts of appellees were committed in the 
course of their performance of duties under Louisiana stat­
utes requiring them to count the ballots, to record the result 
of the count, and to certify the result of the elections. Mis­
use of power, possessed by virtue of state law and made 
possible only because the wrongdoer is clothed with the 
authority of state law, is action taken ‘ under color o f ’ state 
law”  (313 U. S. 299, 325-326).* 7

Moreover, this Court having found that the misconduct 
of primary election officials in the Classic case constitutes 
action taken “ under color of state law”  within the meaning 
of Section 52 of Title 18, United States Code, it necessarily 
follows that similar misconduct here involves “ state ac­
tion”  within the meaning of the 14th Amendment.8 Where 
such misconduct is discrimination on account of the race 
or color of the complaining voter, there is, likewise, a viola­
tion of the 15th Amendment and section 31 of Title 8 of the 
United States Code which is a part of an original act en­
titled, “ A  Bill to Enforce the Right of Citizens of the

8 See Appendix B.
7 Section 43 of Title 8 has been used repeatedly to enforce the 

right of citizens to vote without discrimination because of race or color. 
See: Myers v. Anderson, 238 U. S. 368 (1914); Lane v. Wilson, 307 
U. S. 268 (1939).

8 Cf. E x Parte Virginia, 100 U. S. 339, 346 (1879); Home Tele­
phone & Telegraph Co. v. Los Angeles, 227 U. S. 278 (1913) ; Hague 
v. Committee for Industrial Organisation, 307 U. S. 496, 507, 519 
(1939).



15

United States to Vote in the Several States of this Union 
and for other purposes”  (17 Stat. 13).9

It is, therefore, submitted that the decision of the Cir­
cuit Court of Appeals affirming the action of the District 
Court in this case is inconsistent with the decision of this 
Court in United States v. Classic, supra.

II.

Ratio decidendi of Grovey v. Townsend should be re­
examined in the light of new facts disclosed by the present 
record.

The record formerly before this Court in Grovey v. 
Townsend, 295 U. S. 45 (1935), failed to reveal or present 
facts essential to an adequate legal appraisal of the so- 
called “ white primary” . That decision had no proper 
basis in the actualities of the Texas system, and should be 
re-examined in the light of facts now revealed for the first 
time in the present record. In the words of Mr. Justice 
B randeis :

“ Not only may the decision of the fact have been 
rendered upon an inadequate presentation of then 
existing conditions, but the conditions may have 
changed meanwhile.”  Burnett v. Coronado Oil and 
Gas Co., 285 U. S. 393, 412 (1932).

In Grovey v. Townsend, supra, this Court decided that 
the present method of excluding Negroes from voting in the 
Texas Democratic primary elections did not involve such 
state action as is comprehended by the 14th and 15th

9 Myers v. Anderson {supra).



16

Amendments. Because the exclusionary practice was pred­
icated upon a resolution of the State Democratic Conven­
tion, and in the light of the record then at hand, this Court 
failed to find any decisive interposition of state force in the 
primary election.

Grovey v. Townsend, supra, was decided upon demurrer 
to a petition for damages filed in Justice Court, Precinct 
No. 1, Position No. 2, Harris County, Texas. That record 
provided no factual picture of the organization and opera­
tion of the so-called Democratic party of Texas and per­
mitted the assumption that the “ party”  had the basic struc­
ture and defined membership which are characteristic of 
an organized voluntary association. Moreover, on that rec­
ord, this Court assumed that the privilege of voting in the 
Democratic primary election was an incident of “ party 
membership”  and restricted to members of an organized 
voluntary association called the “ Democratic party.” 10 
The present record and the following analysis will show 
that these supposed facts, vital to the decision in Grovey v. 
Townsend, supra, did not exist.

The problem in Grovey v. Townsend, supra, as in the 
present case, was the determination and evaluation of the 
participation of government on the one hand, and the so- 
called “ Democratic party”  on the other hand, in Texas 
primary elections with a view to deciding whether the con­
duct of these elections was, in legal contemplation, a gov­
ernmental function subject to the restraints of the 14th

10 “ While it is true that Texas has by its laws elaborately provided 
for the expression of party preferences as to nominees, has required 
that preference to be expressed in a certain form of voting, and has 
attempted in minute detail to protect the suffrage of the members of 
the organization against fraud, it is equally true that the primary is a 
party primary * * *” (296 U. S. 45, 50).



17

and 15th Amendments or a private enterprise not so re­
stricted. The complaint described in detail the state 
statutes creating, requiring, regulating, and controlling the 
conduct of primary elections in Texas. These circumstances 
were summarized in the opinion of this Court (295 U. S. 
45, 49-50).

In contrast, the nature, organization and functioning of 
the “ Democratic party”  were nowhere adequately de­
scribed. Instead, the Court found it necessary to rely upon 
a general conclusion of the Supreme Court of Texas in Bell 
v. Hill, 123 Tex. 531, 74 S. W. (2d) 113 (1938), that the 
“ Democratic party”  of Texas is a voluntary association 
for political purposes, functioning as such in determining 
its membership and in controlling the privilege of voting in 
its primaries.11

Now, for the first time, this Court has significant facts 
before it which permit an independent examination of the 
“ party”  and its functioning and a meaningful comparison 
of the roles of state and “ party”  in Texas primary elec­
tions. The present record shows that in Texas the Demo­
cratic primary is not, as was assumed in Grovey v. Town­
send, supra, an election at which the members of an organ­
ized voluntary political association choose their candidates 
for public office.

First, any white elector, whether he considers himself 
Democrat, Republican, Communist, Socialist, or non-par­
tisan, may vote in the “ Democartic”  primary. The testi­

11 Bell v. Hill was decided by the Supreme Court of Texas on an 
original motion for leave to file a petition for mandamus. As in the 
Grovey case there were no facts presented or evidence of either the 
“ Democratic Party” or the actual functioning of the election 
machinery.



1 8

mony of the respondent Allwright is positive and stands 
unchallenged on this point.

“ Q. Mr. Allwright, when a white person comes 
into the polling place during the primary election of 
1940 and asks for a ballot to vote do you ever ask 
them what party they belong to? A. No, we never 
ask them.

Q. As a matter of fact, if a white elector comes 
into the polling place to vote in the Democratic pri­
mary election, he is given a ballot to vote; is that 
correct? A. Right.

Q. And Negroes are not permitted to vote in the 
primary election? A. They don’t vote in the pri­
mary.

Q. But any white person that is qualified; regard­
less of what party they belong to, they can vote ? A. 
That is right.

Q. And you do let them vote? A. Yes”  (R. 106).

Second, the “ Democratic party”  of Texas has no iden­
tified membership and no structure which would make its 
membership determinable. Under these circumstances, it 
is impossible to restrict voting in the primary election to 
“ party members.”  The testimony of E. B. Germany, 
Chairman of the Democratic State Executive Committee, 
illustrates this point (R. 119).

Third, the “ Democratic party”  in Texas is not orga­
nized. Officials claiming to represent the “ party”  testi­
fied positively that the “ party”  has no constitution nor 
by-laws (R. 146), and is a “ loose jointed organization”  
(R. 126). No minutes or records of the periodic “ party”  
conventions are preserved (R. 131). The “ party”  has no 
officers between conventions (R. 125, 143). Beyond the lack 
of organic party law, there is no formulated body of party



19

doctrine. No resolutions of the state conventions are pre­
served (R. 137). Even the resolution upon which the ex­
clusion of Negroes from the primaries is predicated is not 
a matter of record and has no existence as a document 
(R. 136). At the trial, the alleged contents of the resolu­
tion were proved, over the objection of the petitioner, by 
the recollection of a witness who testified that he had intro­
duced such a resolution, and was present when it was 
adopted (R. 138).

The only rules and regulations governing the “ Demo­
cratic party”  and the “ Democratic primary”  elections are 
the election laws of the State of Texas (R. 133-134). This 
startling state of affairs is perhaps the most striking evi­
dence of a one-party political system where for all prac­
tical purposes the “ Democratic party”  is co-extensive with 
the body politic and, hence, needs no private organization 
to distinguish it from other parties.

In such circumstances the legal character of the pri­
mary elections, and the status of those who conduct them, 
can be derived only from the one organized agency, which 
creates, requires, regulates and controls these elections, 
namely, the State of Texas. The factual material supplied 
in this record, but not available in the record of Grovey v. 
Townsend, supra, compels this conclusion. Inadequately 
informed, this Court sanctioned the practical disenfran­
chisement of 540,565 adult Negro citizens, 11.86% of the 
total adult population (citizens) of Texas.12 It is for the 
correction of this error and the resultant deprivation of 
constitutional right that the present petition is submitted.

12 United States Census (1940). (Figures include native born 
and naturalized adult citizens.)



20

III.

Inconsistency between the decisions of this Court in 
Grovey v. Townsend and United States v. Classic apparent 
in their application to the instant case should be resolved.

The District Court and the Circuit Court of Appeals 
refused to follow the decision in United States v. Classic, 
supra, because of their belief that the instant case was con­
trolled by the earlier decision in Grovey v. Townsend, 
supra. The District Court concluded: “ I, theretox-e, fol­
low Grovey v. Townsend, and render judgment for Defen­
dants”  (R. 85). The Circuit Court of Appeals likewise 
followed the Grovey case in affirming the lower court. In 
a per curiam opinion it was stated:

‘ ‘ The Texas statutes regulating party primaries 
which were considered in Grovey v. Townsend are 
still in force. They were held not to render the pri­
mary an election in the constitutional sense. There 
is no substantial difference between that case and 
this. It is argued that different principles were an­
nounced by the Supreme Court in United States v. 
Classic, 313 U. S. 301. The latter was a criminal 
case from Louisiana, and did not involve the Texas 
statutes. It differs in many points from this case. 
The opinion of the court in that case did not overrule 
or even mention Grovey v. Townsend (supra). We 
may not overrule it. On its authority the judgment 
is affirmed”  (R. 152).

In thus following the Grovey case rather than the Clas­
sic case, the District Court and the Circuit Court of Ap­
peals made a choice between apparently inconsistent legal 
theories of this Court as to federal control over primaries.



21

A. Grovey v. Townsend and United States v. Classic 
present inconsistent theories as to Federal author­
ity over primaries which decide elections.

The decision in the Grovey case was based on the theory 
that the right to participate in the Democratic Primary is 
one of the privileges incidental to membership in the Demo­
cratic Party of Texas and should not be confused with “ the 
right to vote.”  Thus, the opinion stated:

“ The complaint states that * * * in Texas nomi­
nation by the Democratic party is equivalent to elec­
tion. These facts (the truth of which the demurrer 
assumes) the petitioner insists, without more, make 
out a forbidden discrimination. * * * The argument 
is that as a Negro may not be denied a ballot at a 
general election insignificant and useless, the result 
is to deny him the suffrage altogether. 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 con­
cern, with the latter it is bound to concern itself, 
for the general election is a function of the state 
government and discrimination by the state as re­
spects participation by Negroes on account of race 
or color is prohibited by the Federal Constitution”  
(295 U. S. 45, 54).13

In following the decision in the Grovey case the lower 
courts ignored the reasoning in the Classic case that in a 
state where choice at the primary is tantamount to election, 
the right to vote in the primary is derived not from the 
party but from the Constitution. In the Grovey case the

13 Similar reasoning appears throughout the Grovey decision: e. g., 
“ Here the qualifications of citizens to participate in party counsels and 
to vote at primaries has been declared by the representatives of the 
party in convention assembled, and this action upon its face is not state 
action” (295 U. S. 45, 48).



22

question as to whether or not federal authority extended to 
primary elections was approached by a consideration of 
the relation between the Democratic primary elections and 
the “ Democratic party”  in Texas. In the Classic case the 
Court viewed as controlling the fundamental relationship 
between the Democratic primary elections and the choice 
of office-holders. The Court was not concerned with who 
ran the machinery but with the practical operation of that 
machinery upon the expression of choice.14

The Grovey case was a complaint for damages in a state 
court based solely upon the Fourteenth and Fifteenth 
Amendments, and this Court, therefore, centered its atten­
tion upon the question of what constituted “ state action”  
under those Amendments. Yet the language of the opinion 
is so broad as to create the impression that the effect of the 
primary in controlling the choice of office-holders has no 
bearing whatsoever upon the question of federal authority 
over the conduct of primary elections. The lower courts 
here gave this all-inclusive effect to the language of the 
Grovey case thereby ignoring the decision of this Court in 
the Classic case that the right to vote in such a primary is 
derived from the Constitution and protected by federal 
statutes not involved in the Grovey case.

14 “ The right of the people 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” (313 U. S. 299, 314).



23

B. Grovey v. Townsand and United States v. 
Classic present inconsistent theories of what 
constitutes “state action” in the conduct of the 
primaries.

The Louisiana and Texas election statutes are substan­
tially alike. On the basis of the Louisiana election laws this 
Court in the Classic case concluded that the Democratic 
primary in Louisiana was “ an integral part of the election 
machinery of Louisiana and that the election officials who 
refused to count the ballots of qualified electors in the 
primary election in Louisiana were rightfully charged with 
violation of Sections 19 and 20 of the Criminal Code (18 
U. S. C., secs. 51 and 52) because “ misuse of power, pos­
sessed 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’ ’ (313 U. S. 
299, 326). But in the Grovey case the action of officials 
conducting a primary election which was similarly created, 
required, regulated and controlled by the State was held 
not to be “ state action.”  The essential inconsistency is 
that in the Classic case the Court decided the issue of state 
action by examining the relation of the state to the enter­
prise in which the election judges were engaged, while in 
the Grovey case the Court disregarded this relationship and 
gave legal effect to the circumstances that the particular 
act complained of was not authorized by the state. I f the 
Grovey doctrine had been applied in the Classic case it 
would have led to the conclusion that the election frauds 
were not “ under color of state law”  because they were not 
authorized by the state.

It is these conflicts between the theories of United States 
v. Classic and Grovey v. Townsend which should be resolved, 
and resolved in accordance with the sound theory in the 
Classic case.



24

Conclusion.

Wherefore, it is respectfully submitted that this 
petition for writ of certiorari to review the judgment 
of the United States Circuit Court of Appeals for the 
Fifth Circuit, should be granted.

T hurgood M a r sh a ll ,
New York,

W . J . D u r h a m ,
Sherman, Texas,

Attorneys for Petitioner.

W il l ia m  H . H astie ,
Washington, D. C.,

W. R obert Ming, Jr.,
Chicago, HI.,

G eorge M . J o h n s o n ,
Berkeley, Calif.,

L eon  A. R a n so m ,
Columbus, Ohio,

P ren tice  T h o m a s ,
Louisville, Ky.,

C arter  W esley ,
Houston, Texas,

Of Counsel.



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