Baskin v. Brown Judgment

    UNITED

CLERK’S OFFICE 
U. S. C O U R T  O F  A P P E A L S  

FOR THE FOURTH C IR C U IT

STATES C
FO R T H E  FO U R TH  CIRCUIT.

No. 5861.

W. P. B a s k in , et  a l ., 
Appellants,

versus

D avid B row n , on Behalf of Himself and Others 
Similarly Situated,

Appellee.

A ppea l  from  t h e  U n it ed  S tates D ist r ic t  Court for 
t h e  E astern  D ist r ic t  of S o u t h  C a ro lin a , 

at C h a r lesto n .

(Argued April 8, 1949. Decided May 17, 1949.)

Before P a rker , S oper and D obie , Circuit Judges.

Robert McC. Figg, J r |  (Eugene S. Blease, Sidney S. 
Tison and George W arren on brief) for Appellants, 
and Thurgood Marshall (Harold R. Boulware,



Robert L. Carter and Constance Baker Motley on 
brief) for Appellee.

P a r k e r , Circuit Judge:

This appeal presents another chapter in the effort 
to exclude Negro citizens from any effective participa­
tion in elections in South Carolina, where the vote in 
the Democratic Primary controls, to all practical intents 
and purposes, the choice in general elections. Prior to 
the decision in Smith  v. Allwright 321 U. S. 649, 
Negroes were excluded from voting in the Democratic 
Primary in South Carolina, which was conducted pur­
suant to state law. Following the decision in that case, 
which upheld the right of Negroes to vote in primary 
elections, the Governor of South Carolina convened the 
Legislature in special session and recommended that all 
primary laws of the state be repealed, with the avowed 
purpose of preventing Negroes from participating in the 
Democratic primaries. Pursuant to this recommenda­
tion the primary laws were repealed and the Democratic 
primaries were conducted thereafter under rules pre­
scribed by the Democratic Party of South Carolina but 
in the same manner and in such way as to produce the 
same results as when conducted under state law. In 
Elmore v. Rice 72 F. Supp. 516, those conducting these 
primary elections were enjoined from denying to Negro 
citizens the right to vote therein; and this was affirmed 
by us on appeal in Rice v. Elmore 4 Cir. 165 F. 2d 387, 
where we gave most careful consideration to the ques­
tions involved. Certiorari to review our decision was 
denied by the Supreme Court. 333 U. S. 875.

Following the denial of certiorari in Rice v.



[ 3 ]

Elmore, the Democratic Party  of South Carolina 
adopted rules under which control of the primaries in 
that state was vested in clubs to which Negroes were 
not admitted to membership, and voting in the prim­
aries was conditioned upon the voter’s taking an oath 
that he believed in social and educational separation of 
the races and was “opposed to the proposed Federal 
so-called F.E.P.C. law”. Negroes desiring to vote in 
the primaries were required, in addition, to present 
general election certificates, a requirement not exacted 
of white voters.

Upon adoption of the rules mentioned, this suit was 
instituted against officials of the Democratic Party of 
South Carolina to protect the right of Negro citizens 
to participate in the Democratic prmaries; and the right 
with respect to the approaching primary was protected 
by an interlocutory injunction (Brown v. Baskin 78 F. 
Supp. 933) which was made permanent on final hearing. 
Brown v. Baskin 80 F. Supp. 1017. Appeal has been 
taken from this final decree, which enjoins defendants 
from refusing to enroll Negroes as members of Demo­
cratic Clubs or denying them full participation in the 
Democratic Party on account of race or color, from 
enforcing the rule requiring Negro electors to present 
election certificates as a prerequisite to voting unless 
the same requirement is applied to other persons, and 
from requiring the taking of the oath to which refer­
ence has been made. The appeal before us asks that we 
reconsider our decision in Rice v. Elmore, supra, and 
attempts to defend the limitation of membership in 
Democratic Clubs and the oath required of voters in 
party primaries on the ground that these are matters 
for the party with which the state has no concern.

We see no reason to modify our holding in Rice v.



Elmore. On the contrary, we are convinced, after fu r­
ther consideration, that the decision in that case was 
entirely correct: and little need be added to our opinion 
there to dispose of every question that is here pre­
sented. The gist of that decision was that primaries, 
under modern conditions, are a part of the election 
machinery of the state, and that a state cannot, by 
allowing a political party to take over this part of its 
election machinery, avoid the provisions of the Con­
stitution forbidding racial discrimination in elections, 
and thus deny to a part of the electorate, because of 
race or color, any effective voice in the government of 
the state. After reviewing and analyzing the applicable 
decisions of the Supreme Court, we summed up the 
rationale of our decision in the following language:

“An essential feature of our form of gov­
ernment is the right of the citizen to participate 
in the governmental process. The political phil­
osophy of the Declaration of Independence is 
that governments derive their just powers from 
the consent of the governed; and the right to a 
voice in the selection of officers of government 
on the part of all citizens is important, not only 
as a means of insuring that government shall 
have the strength of popular support, but also as 
a means of securing to the individual citizen pro­
per consideration of his rights by those in power. 
The disfranchised can never speak with the same 
force as those who are able to vote. The Four­
teenth and Fifteenth Amendments were written 
into the Constitution to insure to the Negro, who 
had recently been liberated from slavery, the 
equal protection of the laws and the right to full 
participation in the process of government. These 
amendments have had the effect of creating a 
federal basis of citizenship and of protecting the 
rights of individuals and minorities from many



[ 5 ]

abuses of governmental power which were not 
contemplated at the time. Their primary pur­
pose must not be lost sight of, however; and no 
election machinery can be upheld if its purpose or 
effect is to deny to the Negro, on account of his 
race or color, any effective voice in the govern­
ment of his country or the state or community 
wherein he lives.

“The use of the Democratic primary in con­
nection with the general election in South Caro­
lina provides, as has been stated, a two step elec­
tion machinery for that state; and the denial to 
the Negro of the right to participate in the 
primary denies him all effective voice in the gov­
ernment of his country. There can be no ques­
tion that such denial amounts to a denial of the 
constitutional rights of the Negro; and we think 
it equally clear that those who participate in the 
denial are exercising state power to that end, 
since the primary is used in connection with the 
general election in the selection of state officers.”

In the light of what was there said, there can be no 
question but that the injunction here was properly 
granted. By placing the control of the primaries in 
Democratic Clubs, membership in which is confined to 
white persons, and by requiring of voters in the prim­
aries an oath which would effectually exclude Negroes, 
those in control of the Democratic Party are attempting 
to do by indirection that which we held in Rice v. El­
more they could not do, i.e. deny to Negro voters 
because of race and color the right to any effective voice 
in the government of the state. The devices adopted 
showed plainly the unconstitutional purpose for which 
they were designed; but, even if they had appeared to 
be innocent, they should be enjoined if their purpose or 
effect is to discriminate against voters on account of



race. Davis v. Schnell 81 F. Supp. 872, aff. 69 S.Ct. 
749; Yick Wo v. Hopkins 118 U. S. 356, 373. As we 
said in Rice v. Elmore, supra:

“Even though the election laws of South 
Carolina be fair upon their face, yet if they be 
administered in such way as to result in persons 
being denied any real voice in government be­
cause of race and color, it is idle to say that the 
power of the state is not being used in violation 
of the Constitution. As said in Yick Wo v. 
Hopkins 118 U.S. 356, 373, 374, 6 S.Ct. 1064, 
1073, 30 L. Ed. 220, “Though the law itself be 
fair on its face, and impartial in appearance, yet 
if it is applied and administered by public author­
ity with an evil eye and an unequal hand, so as 
practically to make unjust and illegal discrimi­
nations between persons in similar circumstances, 
material to their rights, the denial of equal jus­
tice is still within the prohibition of the Constitu­
tion”.

In Davis v. Schnell, supra, the three judge District 
Court, in holding unconstitutional the Boswell amend­
ment to the Constitution of Alabama prescribing an 
educational qualification for suffrage designed to dis­
franchise Negro voters, said:

“It, thus, clearly appears that this Amend­
ment was intended to be, and is being used for 
the purpose of discriminating against applicants 
for the franchise on the basis of race or color. 
Therefore, we are necessarily brought to the con­
clusion that this Amendment to the Constitution 
of Alabama, both in its object and the manner of 
its administration, is unconstitutional, because it 
violates the Fifteenth Amendment. While it is 
true that there is no mention of race or color ins 
the Boswell Amendment, this does not save it. 
The Fifteenth Amendment ‘nullifies sophisticated



[ 7 ]

as well as simple-minded modes of discrimina­
tion’, and ‘It hits onerous procedural require­
ments which effectively handicap exercise of the 
franchise by the colored race although the 
abstract right to vote may remain unrestricted 
as to race.’ ”

The argument is made that a political party does 
not exercise state power but is a mere voluntary organ­
ization of citizens to which the constitutional limitations 
upon the powers of the state have no application. This 
may be true of a political party which does not under­
take the performance of state functions, but not of 
one which is allowed by the state to take over and 
operate a vital part of its electoral machinery. When 
the organization of the party and the primary which it 
conducts are so used in connection with the general 
election that the latter merely registers and gives effect 
to the discrimination which they have sanctioned, such 
discrimination must be enjoined to safeguard the elec­
tion itself from giving effect to that which the Con­
stitution forbids. Courts of equity are neither blind 
nor impotent. They exercise their injunctive power to 
strike directly at the source of the evil which they are 
seeking to prevent. The evil here is racial discrimina­
tion which bars Negro voters from any effective partici­
pation in the government of their state; and when it 
appears that this discrimination is practiced through 
rules of a party which controls the primary elections, 
these must be enjoined just as any other practice which 
threatens to corrupt elections or divert them from their 
constitutional purpose.

Appellants also ask reversal because the trial judge 
refused to disqualify himself from hearing the case after 
an affidavit charging him with bias and prejudice had



[ 8 ]

been filed. The facts set forth in this affidavit, however, 
show no personal bias on the part of the judge against 
any of the defendants, but, at most, zeal for upholding 
the rights of Negroes under the Constitution and indig­
nation that attempt should be made to deny them their 
rights. A judge cannot be disqualified merely because 
he believes in upholding the law, even though he says so 
with vehemence. Personal bias against a party must be 
shown. Berger v. United States 255 U. S. 25; E x  
Parte American Steel Barrel Co. 230 U. S. 35; Henry 
v. Speer 5 Cir. 201 F. 869; Saunders v. Piggly W iggly 
Corporation 1 F. 2d 582; Craven v. United States 1 Cir. 
22 F. 2d 605, 607-608. As was well said in the case last 
cited:

“ ‘Personal’ characterizes clearly the pre­
judgment guarded against. It is the significant 
word of the statute. It is the duty of a real 
judge to acquire views from evidence. The 
statute never contemplated crippling our courts 
by disqualifying a judge, solely on the basis of a 
bias (or state of mind, 255 U.S. 42, 41 S.Ct. 
236, 65 L.Ed. 481) against wrongdoers, civil or 
criminal, acquired from evidence presented in the 
course of judicial proceedings before him. Any 
other construction would make the statute an in­
tolerable obstruction to the efficient conduct of 
judicial proceedings, now none too speedy or 
effective.”

There was no error and the decree appealed from will 
be affirmed.

Affirmed,



J  true copy.

Tnt*.

___ Clark

U. S. Court of Appeals

far the 4th Circuit,

USCA—2033—6-18-48—75