Bradley v. State Board of Education of Virginia Brief for Petitioner

    Gkmrt nf tin lluttrii States
October Term, 1943 

No. 51

LONNIE E. SMITH,

vs.
Petitioner,

S. E. ALLWRIGHT, Election Judge, and JAMES E. 
LUIZZA, Associate Election Judge, 48th Precinct of 
Harris County, Texas, Respondents.

ON W RIT OF CERTIORARI TO TH E  UNITED STATES CIRCUIT 
COURT OF APPEALS FOR TH E  F IF T H  CIRCUIT

BRIEF FOR PETITIONER.

T hurgood Marshall,
New York, N. Y.,

"William H. H astie, 
Washington, D. C.,

Attorneys for Petitioner.

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

W. R obert M ing, J r., 
Chicago, 111.,

George M. J ohnson, 
Berkeley, Calif.,

L eon A. R ansom, 
Columbus, Ohio,

Carter W esley, 
Houston, Texas,

M ilton R. K onvitz, 
Newark, N. J., 

Of Counsel.



TABLE OF CONTENTS

Opinion of Court Below----------------------------------------------  1

Jurisdiction_________________________________________  1

Summary Statement of Matter Involved--------------------  2

I. Statement of the Case--------------------------------------  2

II. Salient Facts ---------------------------   3

The Democratic Party in Texas _------- -------------------- __ 5

Expenses of the Primary----------------------------------------- 5

Errors Relied Upon___________________ ___ ______-.....  6

Argument:

I. The Constitution and laws of the United States 
as construed in United States v. Classic prohibit 
interference by respondents with petitioner’s 
right to vote in Texas Democratic Primaries___ 8

A. The rationale of the Classic case applies to
a civil action for denial of the right to vote 
because of race or color in a Louisiana Pri­
mary election ____________________________  9

B. There is no essential difference between pri­
mary elections in Louisiana and in Texas___ 11

1. Texas like Louisiana has made primary 
elections “ an integral part of the proce­
dure of choice” _________________________  12

PAGE



11

PAGE

2. In Texas as in Louisiana the Democratic 
primary in fact “ effectively controls the 
choice”  of Senators and Representatives 16

C. The respondents herein are subject to the 
controlling federal statutes------------------------ 17

II. The action of respondents herein was in viola­
tion of the Fourteenth and Fifteenth Amend­
ments _______________________________________  22

A. The conduct of respondents in denying peti­
tioner a ballot to vote in the Texas Demo­
cratic primary was state action-------------------  22

B. New matter disclosed in the present record 
destroys the factual basis for the decision in 
Grovey v. Townsend_______________________  24

Conclusion----------------------------------------------------------------  30

Table of Cases.

Avery v. Alabama, 308 U. S. 444 (1940)----------------------  26

Barney v. City of New York, 193 U. S. 430 (1904)______  21
Bell v. Hill, 123 T̂ ex. 531, 74 S. W. (2d) 113 (1934)_____ 26

Cantwell v. Connecticut, 310 U. S. 296 (1940)_________  26

Des Moines v. Des Moines City Ry., 214 U. S. 179 (1909) 21

Ex Parte Virginia, 100 U. S. 339, 346 (1879)_________ 20, 23

Great Northern Railway v. Washington, 300 U. S. 154
(1937)___________________________________________  27

Grovey v. Townsend, 295 U. S. 45 (1935)___21, 23, 25, 27, 29
Guinn v. United States, 238 U. S. 347 (1915)__________  18



Ill

PAGE

Hague v. Committee for Industrial Organization, 307
U. S. 469, 507, 519 (1939) __ ____________________20, 23

Home Telephone & Telegraph Co. v. Los Angeles, 227 
U. S. 278 (1913)_____________________________20,21,23

Iowa-Des Moines National Bank v. Bennett, 284 U. S.
239 (1931)_______________________________________ 21

Kaufman et al. v. Parker, 99 S. W. (2d) 1074 (1936)—  14

Lane v. Wilson, 307 U. S. 268 (1939)_________________  11

Mason Co. v. Tax Commission, 302 U. S. 186 (1937)------ 27
Myers v. Anderson, 238 U. S. 368 (1915)-------------------11,18

Nixon v. Condon, 286 U. S. 73 (1932)— 1---------- -------- — 18
Nixon v. Herndon, 273 U. S. 536, 540 (1927)__________ 9,18
Norris v. Alabama, 294 IT. S. 587 (1935)-------------------- 26, 27

Pierre v. Louisiana, 306 U. S. 354, at p. 358 (1939)-------  27
Powell v. Alabama, 287 U. S. 45 (1932)------------------------ 26

Raymond v. Chicago Traction Co., 207 U. S. 20 (1907)_ 21

Siler v. Louisville and Nashville R. R., 213 U. S. 175
(1909)___________________________________________  21

Small v. Parker, 119 S. W. (2d) 609 (1938)___________  14
Smith v. Texas, 311 U. S. 128, at p. 130 (1940)_________  26
State v. Meharg, 287 S. W. 670, 672 (1926)____________  17

United Gas Co. v. Texas, 303 U. S. 123 (1937)_________  27
United States v. Classic, 313 U. S. 299 (i941) -1, 9,12,15,16

17, 20, 22, 23, 24

Ward v. Texas, 316 U. S. 547 (1942) 26



Statutes and Authorities Cited.

Article 1 United States Constitution__________________  8
Fourteenth and Fifteenth Amendments of the United 

States Constitution__________________________ 22, 23, 24
Seventeenth Amendment of the United States Constitu­

tion ---------------------------------------------------------------------  8
United States Code:

Title 8 Section 31 _______________________________  17
Title 8 Section 43 _______________________________  22
Title 18 Section 5 2 _______________________________  10
Title 28 Section 41 (1 1 )___________________ 2,8,18
Title 28 Section 41 (1 4 )__ ________________ 2, 8,18
Title 28 Section 400_______________________ 2, 8,18

General Laws of Texas, 1903 Chapter 51______________  4
General Laws of Texas, 1905 Chapter 11______________  4
Vernon’s Revised Civil Statutes of Texas:

Article 2930, 2940 ________________________________ 19
Article 2956 _____________________________________  15
Article 2975 _____________________________________  15
Article 3090, 3096 ______________________________ 14,19
Article 3104 _____________________________________  19
Article 3120, 3128 _______________________________  15

Congressional Directory (1943) at p. 250____________ 17,18
United States Census (1940)______________ __________  29

iv

PAGE



(Emtrt of tlje United States
October Term, 1943 

No. 51

Lonnie E. S m ith ,
Petitioner,

vs.

S. E. A ll weight, Election Judge, 
and J ames E. L uizza, Associate 
Election Judge, 48th Precinct of 
Harris County, Texas,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONER.

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 date of the judgment in this case is November 30, 
1942 (R. 152). Petition for rehearing was filed within the 
time provided by the Rules of the Circuit Court of Appeals 
for the Fifth Circuit and was denied on January 21, 1943 
(R. 160).

The jurisdiction of the Court is invoked under Section 
240(2) of the Judicial Code (28 U. S. C. Sec. 347 (A ) ). 
Certiorari was granted June 7, 1943.1

187 L. Ed. 1167.



2

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, denied 
the petitioner and other qualified electors the right to vote 
in the primaries for selection of candidates upon the Demo­
cratic ticket for the offices of United States Senator and 
Representatives in Congress. Petitioner sought damages 
for himself and a declaratory judgment on behalf of him­
self and others similarly situated that the actions of the 
respondents 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, 15th and 17th Amendments of 
the United States Constitution (R. 4-16)J The amended 
answer admitted that respondents refused to permit peti­
tioner 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”  and, there­
fore, not subject to federal control (R. 59-71). The 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 ennerey filed Find­
ings of Fact and Conclusions of Law (R. 80-85), and on 
May 30, 1942, entered a final judgment : (1) that the peti- 1

1 Jurisdiction of the federal courts is invoked under Sections 41 
(11), 41 (14) and 400 of Title 28 of the United States Code..



3

tioner “ take nothing against”  respondents, and (2) issued 
a declaratory judgment “ that the practice of the defendants 
[respondents here] in enforcing and maintaining the 
policy, custom, and usage of which plaintiff [petitioner 
here] and other Negro citizens similarly situated who are 
qualified electors are denied the right to cast ballots 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 
14th, 15th, or 17th Amendments to the United States Con­
stitution, or Sections 2 and 4 of Article I of the United 
States Constitution”  (R. 86).

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 of and domiciled in said State 
(R. 71).

Petitioner is a Negro, native born citizen of the United 
States residing in Houston, Harris County, Texas, a duly 
and legally qualified elector under the laws of the United 
States and the State of Texas, and is subject to no dis­
qualification (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). Petitioner has never voted for any other candi­
dates than those of the Democratic Party in any general 
election at all times material to this case; has been and is 
ready and willing to take the pledge of persons voting in 
the Democratic Primary (R. 71, 81).

A primary and a “ run o ff”  primary were held in Harris 
County, Texas, on July 27, 1940 and August 24, 1940, for 
nomination of candidates upon the Democratic ticket for the



4

offices of United States Senator, U. S. Congressman, Gov­
ernor and other State and local officers. Prior to this time 
the respondents 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 with his poll tax receipt pre­
sented himself to vote in the said Democratic primary, at 
the regular polling place for the 48th Precinct and requested 
to be permitted to vote. Respondents refused him a ballot 
solely 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 
2955 of the Revised Civil Statutes of Texas. This statute 
prescribes identical qualifications for voting in both “ pri­
mary”  and “ general”  elections (R. 11, 12, 23).

Direct primary elections in Texas were created and are 
required and controlled in minute detail by an intricate 
statutory scheme.1

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

1 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 82-107 of this statute set out the requirements 
for the holding of.primary elections. In 1905 that Statute was re­
pealed and in place thereof Chapter 11 of the General Laws of Texas, 
1905, was enacted. These statutes established almost identical require­
ments 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 heretofore filed.

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



5

The Democratic Party in Texas.

The Democratic Party is the only party in Texas re­
quired by law to hold primary elections (R. 72). The Demo­
cratic Party in Texas is a voluntary association of indi­
viduals without any rules or procedure for becoming a 
member (R. 119). There is no constitution, nor are there 
by-laws or fixed rules for the Democratic Party (R. 133, 
146). It is admittedly run in a “ slip-shod”  manner (R. 
146). There are no permanent records (R. 131). There are 
no fixed rules for the “ government of the affairs of the 
Party”  other than the election laws of the State of Texas 
(R. 133-134). The policy of the party is dictated by the 
conventions held every two years. There are no permanent 
officers of the party (R. 125). Officers of the convention 
are elected at each convention and their duties end at the 
adjournment of the convention (R. 146).

Every two years primary elections are held pursuant to 
the elections laws of the State of Texas (R. 131-132). In 
the holding of these elections the laws of Texas are followed 
(R. 131). There are no rules for holding these elections 
other than the election laws of Texas (R. 133-134). At these 
primary elections any white elector, regardless of party 
affiliation, is permitted to vote (R. 106, 81).

After the elections are held the successful candidates 
are certified to the Secretary of State of Texas (R. 128). 
This likewise is done pursuant to and by virtue of the elec­
tion laws of Texas (R. 128).

Expenses of the Primary.

The County Clerk, the Tax Assessor and Collector, the 
County Judge of Harris County all performed their duties 
under Articles 3100-3153, Revised Civil Statutes of Texas,



6

in connection with holding of the primaries on July 27,1940, 
and August 24, 1940, without cost to the candidates or the 
Democratic Party or any official thereof (R. 73).

After such primary the names of the candidates receiv­
ing the nomination were certified by the County Executive 
Committee, and the State Executive Committee, in turn, 
certified such nominees to the Secretary of State who placed 
the names of such candidates on the General Election Bal­
lot to be voted on in the general election. All services ren­
dered in this connection by the Secretary of State were 
paid for by the State of Texas (R. 74).

Although some of the expenses of the primary elections 
are paid by the Harris County Democratic Executive Com­
mittee, it is admitted: “  . . . that it received the funds 
therefor by levying an assessment against each person 
whose name was placed upon the Primary Ballot for the 
two Primaries named, and that the funds unused therefor, 
and which remained in the possession of the Harris County 
Democratic Executive Committee, were returned prorata 
to each candidate for Democratic nominee who had made a 
contribution to the Harris County Democratic Executive 
Committee, following the assessment so levied”  (R. 76).

Errors Relied Upon.

The question presented by the Petition for Certiorari 
heretofore granted was:

“ Does the Constitution of the United States pro­
hibit the exclusion of qualified Negro electors from 
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?”

The Circuit Court of Appeals erred in affirming the 
judgment of the trial court denying petitioner relief and



7

issuing a declaratory judgment “ that the practice of the 
defendants [respondents here] in enforcing and main­
taining the policy, custom and usage, of which plaintiff 
[petitioner here] and other Negro citizens are denied the 
right to cast ballots at the Democratic Primary Elections 
in Texas, solely on account of their race or color, is constitu­
tional, and does not deny or abridge their rights to vote 
within the meaning of the 14th, 15th, or 17th Amendments 
to the United States Constitution, or Sections 2 and 4 of 
Article I of the United States Constitution”  (R. 86).

The judgment of the Circuit Court of Appeals for the 
Fifth Circuit should be reversed for the following reasons:

I .

T he Constitution and laws of the U nited States as

CONSTRUED IN  U N IT E D  STA TE S V. CLASSIC PROH IBIT INTERFER­

ENCE BY RESPONDENTS W IT H  PE TITIO N E R ’ S RIGH T TO VOTE IN

T exas D emocratic primaries.

A. T he rationale of the Classic case covers a civil 
action for denial of the right to vote in  a L ouisiana

PRIM ARY ELECTION BECAUSE OF RACE OR COLOR.

B. T here is no essential difference between the

STATUS OF PRIM ARY ELECTIONS IN  LO U ISIA N A  AND IN

T exas.

(1) Texas like Louisiana has made primary elec­
tions “ an integral part of the procedure of 
choice ’ ’.

(2) In Texas as in Louisiana the Democratic pri­
mary in fact “ effectively controls the choice”  of 
Senators and Representatives.

C. T he respondents here are subject to the control­
ling F ederal Statutes.



8

n.
T he action of eespondents herein was in  violation of 

the F ourteenth and F ifteenth A mendments.

A. T he conduct of respondents in denying petitioner

A BALLOT TO VOTE IN  TH E  T E X A S DEM O CRATIC PRIM ARY

was State action.

B. New matter disclosed in the present record de­
stroys THE FACTUAL BASIS FOR THE DECISION IN GrOVEY
v. T ownsend.

ARGUM ENT.

I.

The Constitution and laws of the United States as 
construed in United States v. Classic prohibit interfer­
ence by respondents with petitioner’s right to vote in 
Texas Democratic primaries.

In his complaint petitioner charged that respondents 
had violated Sections 31 and 43 of Title 8, United States 
Code, in that they had subjected him to a deprivation of 
rights secured by Sections 2 and 4 of Article 1 and the 
Seventeenth Amendment of the Constitution of the United 
States (R. 4-5).1 The courts below held that the petitioner, 
a qualified elector of the State of Texas, could not maintain 
an action for damages against the respondents, Democratic 
primary election judges, who refused to permit petitioner

1 Jurisdiction of the District Court was invoked under sub-divi­
sions 11 and 14 of Section 41 and Section 400 of Title 28 of the United 
States Code (R . 4-5),



9

and other qualified electors to vote in the Democratic pri­
mary elections held July 27, 1940, and August 24, 1940, in 
voting precinct 48, Harris County, Texas. These rulings 
are inconsistent with the decision of this Court in United 
States v. Classic.1

A. The rationale of the Classic case applies to a 
civil action for denial of the right to vote be­
cause of race or color in a Louisiana primary 
election.

In United States v. Classic, supra, all of the Justices 
agreed that the right to vote in a direct primary election 
which the State has made an integral part of the procedure 
of choice among candidates for Congress or which in fact 
effectively controls such choice is secured by the Constitu­
tion as fully as is the right to vote in a general election.2

The majority of the Court then concluded that the 
criminal sanctions of Sections 19 and 20 of the Criminal 
Code in terms directed at “ the deprivation of any rights, 
privileges, or immunities secured or protected by the Con­
stitution and the laws of the United States”  were applicable 
to the deprivation of the right of a voter to have his ballot 
counted in such a primary election.

It necessarily follows that the defendants, Classic, and 
others, were likewise liable civilly to the complaining wit­
ness under Section 43 of Title 8 of the United States Code, 
which is part of the same original Act as Sections 19 and

1 313 U. S. 299 (1941).
2 Compare statement by Holmes, J., 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.”



10

20 of the Criminal Code and the language of which closely 
approximates the language of Section 20.1

If the person seeking civil remedy has been debarred 
from participation in the primary because of race or color, 
he need not rely upon the general language of Section 43 
alone because the act complained of is expressly prohibited 
by Section 31 of Title 8 of the United States Code, under the 
heading “ Race, color or previous condition not to affect 
right to vote” , which provides as follows:

“ All citizens of the United States who are other­
wise qualified by law to vote at any election by the

1 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. The second Civil Rights legisla­
tion (16 Stat. 140; id. 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 Title 18 (Section 20 of 
the Criminal Code) of the United States Code are both parts of the 
same original bill and although one provides for civil redress and the 
other for criminal redress, the language of the two sections is closely 
similar:

Sec. 43 of T itle 8 
“ Every person who, under color 
of any statute, ordinance, regula­
tion, custom, or usage, of any 
State or Territory, subjects, or 
causes to be subjected, any citizen 
of the United States or other per­
son within the jurisdiction there­
of 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.”

Sec. 20 of Criminal Code 
“Whoever, under color of any 
law, statute, ordinance, regula­
tion, or custom, willfully sub­
jects, or causes to be subjected, 
any inhabitant of any State, Ter­
ritory, or District to the depriva­
tion of any rights, privileges, or 
immunities secured or protected 
by the Constitution and laws of 
the United States, . . . shall be 
fined not more than $1,000, or 
imprisoned not more than one 
vear, or both.”  (R . S. Sec. 5510, 
Mar. 4. 1909, c. 321, sec. 20, 35, 
Stat. 1092.)



11

people in any State, Territory, district, county, city, 
parish, township, school district, municipality, or 
other territorial subdivision, shall be entitled and al­
lowed 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 contrary notwithstanding. E. S. sec. 2004.”

The dissenting Justices in the Classic case were of opin­
ion that Section 20 as a criminal statute should be given a 
restrictive construction which would exclude frauds in pri­
mary elections from the wrongs embraced by that section. 
However, the allowance of a civil remedy is not impeded by 
the special restrictive canons of construction which are 
peculiarly applicable to criminal statutes. Indeed, Section 
43 of Title 8 has been used repeatedly to enforce the right 
of the citizen to vote without discrimination because of race 
or color.1

This problem of statutory construction is obviated alto­
gether by Section 31 of Title 8, supra, since it is directed at 
the very wrong now under consideration; namely, the denial 
of the right to vote at any election because of race or color.

Once a primary becomes an election within the purview 
of federal authority, Sections 31 and 43 of Title 8 provide 
the voter with a civil remedy calculated to protect his right 
to vote in such primary election without distinction because 
of race or color. It follows that if the present petitioner 
were a Negro citizen of Louisiana complaining of acts in 
that State identical with those which occurred in Texas, he 
would have a cause of action under the doctrine of this 
Court in United States v. Classic, supra.

1 See Myers v. Anderson, 238 U. S. 368 (1915) ; Lane v. Wilson, 
307 U. S. 268 (1939).



12

B. There is no essential difference between pri­
mary elections in Louisiana and in Texas.

A comparison of primary elections and primary election 
laws in Texas with primary elections and primary election 
laws in Louisiana, demonstrates that in Texas, as in Louisi­
ana, “ the state law has made the primary an integral part 
of the procedure of choice [and that] . . .  in fact the pri­
mary effectively controls the choice’ ’.1

1. Texas like Louisiana has made 
primary elections “ an integral 
part of the procedure of choice

In United States v. Classic, this Court decided that a 
direct primary election is subject to federal control under 
Article I “ where the state law has made the primary an 
integral part of the procedure of choice’ ’. 2 The Court 
pointed out that these constitutional provisions do not cease 
to be applicable when a state “ changes the mode of choice 
from a single step, a general election to two, the first of 
which is a choice at a primary of those candidates from 
whom, as a second step, the representative in Congress is 
to be chosen at the election’ ’. 3 In another formulation of 
the same principle the Court said “ that the authority of 
Congress . . . includes the authority to regulate primary 
elections when, as in this case, they are a step in the exer­
cise by the people of their choice of representatives in Con­
gress” . 4 To determine the applicability of the stated prin­
ciple in the Classic case, this Court considered the statutes 
of Louisiana concerning direct primary elections. While 
the Court did not in terms indicate which statutory pro­

1 United States v. Classic, 313 U. S. at p. 318.
2 313 U. S. at p. 318.
3 313 U. S. at pp. 316-317.
4 313 U. S. at p. 317.



13

visions were of greatest significance in establishing the pri­
mary as part of the procedure of choice, the opinion does 
specify the two decisive types of state action from which 
this consequence had resulted; namely, (1) “ setting up 
machinery for the effective choice of party candidates” ; 
and, (2) eliminating or seriously restricting “ the candidacy 
at the general election of all those who are defeated at the 
primary” .1

Comparison of the Texas and Louisiana statutes demon­
strates that the legislatures of both states have taken the 
same type of action.2

In Louisiana all political parties casting five per cent, 
or more of the total votes at the preceding elections are re­
quired to nominate by direct primary election (Louisiana 
Act No. 46, Regular Session, 1940, Sections 1 and 3). In 
Texas all political parties casting 100,000 or more votes at 
the last general election are required by statute to nominate 
by direct primary election. (Vernon’s Revised Civil Stat­
utes, Article 3101.) It is agreed by both parties that: “ At 
all times material herein the only state-wide primaries held 
in Texas have been for nominees of the Democratic Party”  
(R. 72).

v

Texas eliminates or restricts the candidacy of persons 
other than primary victors to a greater extent than does 
Louisiana. The Texas law provides restrictions equivalent 
to those in Louisiana.3 In addition the Texas law requires

‘ 313U . S. at p. 311.
2 See Comparative Tables of Louisiana and Texas election statutes 

in Petitioner’s Appendices filed herein under separate cover.
3 Candidacy at the general election by means of independent nom­

inating petition is restricted by the pledge required by statute of all 
persons participating in primary elections and the further statutory 
provision that persons participating in primary elections in which a 
candidate is chosen for office may not sign a petition in favor of an­
other’s nomination to said office (Article 3160).



14

that all party or organization candidates for Senator must 
be chosen at a primary election, and goes so far in making 
this restriction explicit as to preclude any candidates de­
feated in a senatorial primary from running as an inde­
pendent or non-partisan candidate in the general election.1

It is submitted that the foregoing are controlling factors 
sufficient in themselves to make a primary election an inte­
gral part of “ the procedure of choice” . Other statutory 
provisions may be relevant but they are not decisive. A  
large number of such subsidiary items appearing in both 
the Texas and Louisiana statutes are assembled for the 
purpose of comparison in parallel columns in Petitioner’s 
Appendices. Only one of these cumulative circumstances 
appears in the Louisiana statutes but not in the Texas stat­
utes. In Louisiana the State collects a fee from all candi­
dates participating in primary elections and thereafter con­
ducts the primary at its own expense, while in Texas, the 
statutes require the payment of certain prescribed fees by 
candidates to the Executive Committees of the Democratic 
Party to be used for the purpose of paying certain of the 
expenses of said primary.2 In Texas many of the expenses 
of the primary are paid in their entirety and directly by the

1 Vernon’s Revised Civil Statutes of Texas, Arts. 3090, 3096.
2 These funds contributed by candidates are considered a trust 

fund solely for the purpose of paying of certain expenses for the pri­
mary election and cannot either be appropriated by the Democratic 
party or used for any purpose other than those purposes specifically 
set out in the primary election statutes. Kaufman et al. v. Parker, 99 
S. W . (2d) 1074 (1936); Small v. Parker, 119 S. W . (2d) 609 
(1938).



15

state.1 However, this factoi*, in the Texas scheme does not 
make the primary either more or less a part of the pro­
cedure of choice. It does not change the effectiveness of the 
primary in eliminating candidates, nor does it make pri­
maries more or less mandatory or more or less completely 
defined by law. Thus tested by the criteria set up by this 
Court in the Classic case, this factor is in no sense con­
trolling.

1 Pursuant to Article 2975 of the Revised Statutes of Texas the 
County Collector of Taxes of Harris County, Texas, prepared a list 
of qualified voters of said county who paid their poll tax prior to Jan­
uary 31, 1940. Pursuant to Article 3121 of the Revised Statutes of 
Texas, the County Collector for Harris County, Texas, delivered a 
copy of this list to the defendants in their official capacities as Judges 
of Primary Elections, to be used by them in determining the qualifi­
cations of voters in said primary election. The expenses for the list­
ing of qualified electors and the furnishing of these lists in the primary 
elections are paid for by the State of Texas and Harris County; pur­
suant to statute as follows:

“ The tax collector shall be paid fifteen cents for each poll 
tax receipt and certificate of exemption issued by him to be 
paid pro rata by the State and County in proportion to the 
amount of poll tax received by each, which amount shall include 
his compensation for administering oaths, furnishing lists of 
qualified voters in election precincts for use in all general and 
primary elections and primary conventions where desired. . . .” 
(Article 2994.)

Pursuant to Article 3120 of the Revised Statutes of Texas, voting 
booths, ballot boxes, and guard rails prepared for general elections 
may be used for primary elections.

Pursuant to Article 2956 of the Revised Statutes of Texas, the 
County Clerk of Harris County, Texas, is authorized and required 
to receive absentee ballots for voting in the primary elections.

Pursuant to Article 3128 of the Revised Statutes of Texas, the 
County Clerk is required to cause the names of the candidates who 
have been nominated to be printed in some newspaper published in 
the County and to post a list of such names in at least five public 
places in the county, one of which shall be upon the courthouse door.



16

2. In Texas as in Louisiana the 
Democratic primary in f a c t  
“ effectively controls the choice” 
of Senators and Representatives.

In United States v. Classic, supra, this Court decided 
that “ where in fact the primary effectively controls the 
choice, the right of the elector to have his ballot counted at 
the primary”  is protected by the Constitution. In that 
case, an allegation that selection in the Democratic primary 
in Louisiana was decisive of election to Congress was ad­
mitted by demurrer to the indictment.

In the present case, it was alleged by the petitioner in 
his complaint and demonstrated by a summary of election 
statistics appended thereto that nominees of the Demo­
cratic Party have been elected in all major elections in 
Texas with but two exceptions since 1859 (R. 9, 29-59). 
Thereafter, by stipulation of the parties duly incorporated 
in the trial record, it was established as a fact that “ since 
1859 all Democratic nominees for Congress, Senate and 
Governor, have been elected in Texas, with two exceptions”  
(R. 72). In his trial findings the District Judge stated that 
“ the facts in detail have been stipulated, but it seems only 
necessary to refer to the Stipulations and to make them a 
part thereof”  (R. 81 )J

As a matter of fact, in 1940 when petitioner tried to vote 
the only opportunity for any Texas voter to exercise his 
choice for United States Senator was in the Democratic 1

1 The full import of this is made clearer upon consideration of the 
fact that during this period two senators have been elected each six 
years, 21 members of United States House of Representatives have 
been elected every two years, and a governor elected every two years. 
The fact that during this period of more than eighty years there have 
only been two instances of election of candidates other than those of 
the Democratic Party demonstrates clearly that nomination at the 
Democratic primary in Texas is tantamount to election.



17

primary election. It was the only primary election held in 
1940 (R. 72). The figures for the 1940 general election in 
Texas show the following vote for United States Senator: 
Democrat 978,095 and Republican 59,34c.1

The Texas Court of Civil Appeals has pointed out that 
it is “ a matter of common knowledge in this state that a 
Democratic primary election, held in accordance with our 
statutes, is virtually decisive of the question as to who shall 
be elected at the general election” .1 2

It is adequately established in this record that in Texas, 
as was the case in Louisiana, the Democratic primary in 
fact “ effectively controls the choice” . The legal conse­
quence of this, under the Classic case, is that the right to 
vote in Texas primary elections is secured by the Consti­
tution.

C. The respondents herein are subject to the con­
trolling federal statutes.

Section 31 of Title 8 of the United States Code declares 
the federal right of otherwise qualified electors to vote at

1 Congressional Directory (1943), p. 250.
2 State v. Meharg, 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 
H ughes, The Fate of the Direct Primary, 10 National Municipal 
Review, 23, 24. See also: H asbrouck, Party Government in the 
House of Representatives (1927), 172, 176, 177; Merriam and 
O veracker, 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). In Louisiana there were 540,370 ballots cast in the 
1936 Congressional primaries, as against 329,685 in the general elec­
tion. In the 1938 Texas primaries, 34.5% of the adults voted, while 
in the general election the figure dwindled to 15%.



18

all elections without distinction of race or color.1 It is ad­
mitted that respondents prevented petitioner from voting 
because of his race and color. Sub-division 11 of Section 41 
of Title 28 of the United States Code 2 gives the District 
Court jurisdiction of all suits to enforce rights of citizens of 
the United States to vote in the several states.3 Similarly 
Section 400 of Title 28 conferring jurisdiction over pro­
ceedings for a declaratory judgment contains no limitation 
significant for present purposes as to the person against 
whom such proceedings may be brought. Thus it is neces­
sary only that the petitioner show that the respondents are 
persons who have in fact infringed the right which he as­
serts, and it is not necessary that he shows that respondents 
acted under color of any state law.

It is only under Section 43 of Title 8 and under Sub­
division 14 of Section 41 of Title 28 that a question arises 
whether the respondents acted “ under color of any statute, 
ordinance, regulation, custom, or usage of any state” . The

1 See: Guinn v. United States, 238 U. S. 347 (1915); Myers v. 
Anderson ( supra) ; Nixon v. Herndon, 273 U. S. 536 (1927) ; Nixon 
v. Condon, 286 U. S. 73 (1932).

2 “ The district courts shall have original jurisdiction. . . .
“ Eleventh. Of all suits brought by any person to recover 

damages for any injury to his person or property on account 
of any act done by him, under any law of the United States, 
for the protection or collection of any of the revenues thereof, 
or to enforce the right of citizens of the United States to vote 
in the several States.”

3 Section 31 of Title 8 is codified from Section 1 of the Act of 
May 31, 1870 (16 Stat. 140) which was amended by the Act of Feb­
ruary 28, 1871 (16 Stat. 433). Section 15 of this amended statute 
provided that the Circuit Courts of the United States should have 
jurisdiction of all cases in law and equity arising under the original 
and amended acts. By Act of March 7, 1911 (36 Stat. 1092) the 
jurisdiction over these actions was transferred to the District Courts 
o f  the United States. This section has now become Section 41 (11) 
of Title 28 of the United States Code.



19

facts show that they did so act. It is the State of Texas 
which, by its election laws, creates, requires, regulates and 
controls the direct primary election as an integral part of 
the election machinery in that state. It is the statutes of 
Texas which require the appointment of primary election 
judges and prescribe the qualifications and disqualifications 
for such office, which are the same as the qualifications and 
disqualifications for judges of general elections. (Vernon’s 
Revised Statutes, Articles 3104, 2930, 2940.) The statutes 
of Texas prescribe in minute detail the powers of primary 
election judges, which are likewise the same as those of 
general election judges. Specifically, respondents as such 
primary election judges were under statutory mandate to 
administer oaths, to preserve order, and to appoint special 
officers to assist in the maintenance of order (Art. 3105). 
They were required to compel the observance of the law 
prohibiting loitering and electioneering near the polling 
places and to arrest any person engaged in conveying voters 
to the polls in carriages or other conveyances except as 
permitted by statute (Art. 3105). All of these significant 
police powers of the respondents as election judges are 
derived solely from and exercised under the sovereign 
authority of the State of Texas. It is particularly signifi­
cant that respondents as election judges are required by 
Article 3104 of the Revised Civil Statutes of Texas to take 
an oath which is the same oath that is required of officials 
serving in general elections and, moreover, Articles 217 and 
231 of the Penal Code of the State of Texas make it a crim­
inal offense subject to fine for any election judge to refuse 
to deliver a ballot to or receive the vote of a qualified 
elector in a primary election.

It is the usual procedure in Harris County, Texas, for 
the same individuals who are appointed election judges 
in the general elections also to serve as election judges in



20

the Democratic primary elections (R. 74). The respondents 
conducted the Democratic primary elections of 1940 in the 
same manner as the general elections and in conformance 
with the statutes of the State of Texas (R. 74, 103-108).

With their offices thus created and defined by the State 
and with their duty to receive and count ballots imposed by 
statute, respondents so exercised their official function 
under the laws of Texas as to deny petitioner the right to 
vote. Thus the action of which petitioner complains comes 
squarely within the test of action under color of state law 
as formulated in United States v. Classic: “ misuse 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’ of state law” .1 
Respondents “ possessed”  their “ power . . .  by virtue of 
state law”  and their rejection of the petitioner’s ballot was 
“ made possible only because [they were] clothed with the 
authority of state law” . Controlling effect should be 
given here as in the Classic case, to the relationship of the 
State to the enterprise in which the primary election judges 
were engaged. Once the state’s relationship to the enterprise 
in which the offending persons are engaged is established, it 
is immaterial what sanction, if any, is claimed for a par­
ticular act done in performing an official function. Indeed,

1 313 U. S. at 326.
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 Organization, 307 U. S. 469, 507, 
519 (1939).



21

if the matter of such sanction were controlling, the Court 
would necessarily have concluded in the Classic case that 
the alleged election frauds were not “ under color o f”  state 
law because they were not authorized by the State.1 2

It is submitted that this reasoning should have been but 
was not adopted when the status of Texas primary elections 
was considered by this Court in Grovey v. Townsend? In 
that case, the conduct of election judges was considered to 
be private rather than State action because the act com­
plained of—the exclusion of Negroes from voting—was not 
authorized by the State. Under the correct approach of the 
Classic case, authority for the particular act is immaterial 
so long as the relationship of the State to the enterprise in 
which the election judges are engaged is such as to bring 
their whole course of official conduct “ under color of state 
law” . This conflict between the theories of United States 
v. Classic and Grovey v. Townsend should now be resolved 
in accordance with the sound reasoning of the Classic case.

1 In an unbroken line of decisions this Court has held that an 
officer of a state finds no shield from enforcement of federal consti­
tutional and statutory limitations in the fact that the state law did not 
authorize the acts complained of. Even prohibition of misconduct by 
state statute does not operate to limit the federal authority to enforce 
constitutional restrictions as against state officers. See: Raymond v. 
Chicago Traction Co., 207 U. S. 20 (1907) ; Siler v. Louisville and 
Nashville R. R., 213 U. S. 175 (1909) ; Des Moines v. Des Moines 
City Ry., 214 U. S. 179 (1909); Home Telephone and Telegraph Co. 
v. Los Angeles, 227 U. S. 278 (1913); Iowa-Des Moines National 
Bank v. Bennett, 284 U. S. 239 (1931). These cases must be taken 
as overruling the earlier and inconsistent Barney v. City of New York, 
193 U. S. 430 (1904).

2295 U. S. 45 (1935).



22

II.

The action of respondents herein was in violation of 
the Fourteenth and Fifteenth Amendments.

The refusal of the respondents to permit petitioner to 
vote in the Democratic primary in Texas because of race or 
color also violated the Fourteenth and Fifteenth Amend­
ments to the Constitution of the United States. In the State 
of Texas, where the state law has made the primary an in­
tegral part of the procedure of choice and where in fact the 
primary effectively controls the choice, the prohibitions of 
the Fourteenth and Fifteenth Amendments apply to pri­
mary elections to the same extent as in the case of general 
elections.

A. The conduct of respondents in denying peti­
tioner a ballot to vote in the Texas Democratic 
primary was state action.

In the Classic case this Court indicated that in primaries 
which are an integral part of the election machinery of a 
state the protection afforded by the Fourteenth Amendment 
to Negro voters is even clearer than the more generalized 
protection of Article I. Interpreting Section 19 of the 
Criminal Code the Court stated: “ It does not avail to at­
tempt to distinguish the protection afforded by Sec. 1 of the 
Civil Rights Act of 1871, 8 U. S. C. A. Sec. 43, to the right 
to participate in primary as well as general elections, 
secured to all citizens by the Constitution, . . .  on the 
ground that in those cases the injured citizens were Negroes 
whose rights were clearly protected by the Fourteenth 
Amendment” .1

1313 U. S. at p. 323.



23

The action of the respondents herein in refusing peti­
tioner a ballot to vote in the Texas Democratic primary was 
“ state action’ ’ within the meaning of the Fourteenth and 
Fifteenth Amendments to the same extent that the action 
of the defendants in the Classic case was “ under color o f ”  
state law within the meaning of Section 20 of the United 
States Code. In the Classic case this Court after finding 
that the Democratic primary in Louisiana was “ an integral 
part of the election machinery”  of that state concluded that 
the election officials who refused to count the ballots of 
qualified electors in the primary elections were rightfully 
charged with violation not only of Section 19 of the Criminal 
Code, prohibiting such action by private individuals, but 
also Section 20, prohibiting such action by persons acting 
“ under color o f”  state law. This conclusion was reached 
by applying the principle that: “ misuse 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 ‘ under color o f ’ state law” .1 It has been established 
in preceding sections of this brief that there is no essential 
difference between the legal character of the primaries in 
Louisiana and Texas and that respondent election judges 
acted “ under color o f”  state law just as did the Louisiana 
election judges in the Classic case (pp. 12-21). Where con­
duct of the individual is so related to the state as to be 
“ under color o f”  state law it necessarily follows that such 
conduct is likewise state action within the meaning of the 
Fourteenth and Fifteenth Amendments.2

The District Court conceded that the right to vote in a 
primary election which is “ by law made an integral part 
of the election machinery”  would be a right protected by the

1 313 U. S. 299, 326.
2 Cf. E x parte Virginia, supra; Home Telephone & Telegraph 

Co. v. Los Angeles, supra; Hague v. Committee for Industrial Organ­
ization, supra.



24

Federal Constitution. The District Judge, however, con­
sidered the decision of this Court in Grovey v. Toumsend 
as controlling and that he must therefore “ follow Grovey v. 
Townsend and render judgment for defendants”  (E. 85). 
The United States Circuit Court of Appeals also considered 
the decision in Grovey v. Townsend as controlling and con­
cluded that “ we may not overrule it. On its authority the 
judgment is affirmed”  (R. 151).

In thus following the Grovey case rather than the Classic 
case, the District Court and the Circuit Court of Appeals 
made a choice between inconsistent methods of determining 
whether conduct in primary elections is public or private 
action. It is respectfully submitted that the ratio decidendi 
of the Classic case rather than of the Grovey case should be 
followed.

B. New matter disclosed in the present record 
destroys the factual basis for the decision in 
Grovey v. Townsend.

The record before this Court in Grovey v. Townsend, 
supra, failed to reveal or present facts essential to an ade­
quate 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 Grovey v. Townsend, supra, this Court decided that 
the 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 Amend­
ments. Because the exclusionary practice was predicated 
upon a resolution of the State Democratic Convention, 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.



25

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 record, 
this Court assumed that the privilege of voting in the Demo­
cratic primary election was an incident of party member­
ship and restricted to members of an organized voluntary 
association called the “ Democratic Party.”  1 The present 
record and the following analysis will show that these sup­
posed 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 and 
15th Amendments or a private enterprise not so restricted. 
The complaint described in detail the state statutes creat­
ing, 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).

1 “ 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 . . . ”  (295 U. S. 45, 50).



26

In contrast, the nature, organization and functioning of 
the Democratic Party were nowhere adequately described. 
Instead, the Court found it necessary to rely upon a general 
conclusion of the Supreme Court of Texas in Bell v. Hill,1 
that the Democratic Party of Texas is a voluntary associa­
tion for political purposes, functioning as such in determin­
ing its membership and in controlling the privilege of vot­
ing in its primaries.2

This Court was not bound to accept the conclusion of the 
Supreme Court of Texas as to the legal character of the 
primary election and the Democratic Party in Texas; for it 
is well settled that where the claim of a constitutional right 
is involved, this Court will review the record and find the 
facts independently of the state court.3 This Court should

1 123 Tex. 531, 74 S. W . (2d) 113 (1934). ^
2 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 ma­
chinery.

3 In Powell v. Alabama, 287 U. S. 45 (1932), the Court decided 
for itself what duties counsel performed, in considering the question 
of adequate representation by counsel appointed by the state court. 
In Cantwell v. Connecticut, 310 U. S. 296 (1940), the Court made 
independent findings of fact as to the character of phonograph records 
played by Jehovah’s Witnesses. In Norris v. Alabama, 294 U. S. 587 
(1935), the Court weighed evidence showing that Negroes had been 
excluded from jury service by reason of race prejudice, against evi­
dence that they had been excluded for other reasons, and held that 
the former outweighed the latter.

Accord: Avery v. Alabama, 308 U. S. 444 (1940).
In Smith v. Texas, 311 U. S. 128, at p. 130 (1940), this Court 

said:
“ But both the trial court and the Texas Criminal Court of 

Appeals were of opinion that the evidence failed to support the 
charge of racial discrimination. For that reason the Appellate 
Court approved the trial court’s action in denying petitioner’s 
timely motion to quash the indictment. But the question 
decided rested upon a charge of denial of equal protection, a 
basic right protected by the Federal Constitution. And it is 
therefore our responsibility to appraise the evidence as it re­
lates to this constitutional right.”  (Italics supplied.)

Accord: Ward v. Texas, 316 U. S. 547 (1942).



27

have reserved to itself the right to pass upon the mixed 
question of law and fact involved in the decision whether 
the conduct of primary election officials in Texas constituted 
state action.1

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 elections. 
The present record shows that in Texas the Democratic 
primary is not, as was assumed in Grovey v. Townsend, 
supra, an election at which the members of an organized 
voluntary political association choose their candidates for 
public office.

1 In Pierre v. Louisiana, 306 U. S. 354, at p. 358 (1939), the 
Court said:

“ In our consideration of the facts the conclusions reached 
by the Supreme Court of Louisiana are entitled to great respect. 
Yet, when a claim is properly asserted— as in this case—that 
a citizen whose life is at stake has been denied the equal pro­
tection of his country’s laws on account of his race, it becomes 
our solemn duty to make independent inquiry and determina­
tion of the disputed facts— for equal protection to all is the 
basic principle upon which justice under law rests.”

In Norris v. Alabama, 294 U. S. 587, at p. 590 (1935), Mr. Chief 
Justice Hughes, in his opinion for the unanimous Court, said:

“ When a federal right has been specially set up and claimed 
in a state court, it is our province to inquire not merely 
whether it was denied in express terms but also whether it 
was denied in substance and effect. If this requires an exam­
ination of evidence, that examination must be made. Other­
wise, review by this Court would fail of its purpose in safe­
guarding constitutional rights. Thus, whenever a conclusion 
of law of a state court as to a federal right and findings of 
fact are so intermingled that the latter control the former, it is 
incumbent upon us to analyze the facts in order that the appro­
priate enforcement of the federal right may be assured.”

A ccord: Great Northern Railway v. Washington, 300
U. S. 154 (1937). United Gas Co. v. Texas,'303 U. S. 123 (1937), 
Cf. Mason Co. v. Tax Commission, 302 U. S. 186 (1937).



2 8

First, any white elector, whether he considers himself 
Democrat, Republican, Communist, Socialist, or non-parti­
san, may' vote in the “ Democratic”  primary. The testi­
mony of the respondent Allwright is positive 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 identified 
membership and no structure which would make its mem­
bership determinable. Under these circumstances, it is im­
possible 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 of Texas is not organized. 
Officials claiming to represent the party testified 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



29

(R. 125, 143). Beyond the lack of organic party law, there 
is no formulated body of party doctrine. No resolutions of 
the state conventions are preserved (R. 137). Even the 
resolution upon which the exclusion of Negroes frorq the 
primaries is predicated is not a matter of record and has 
no existence as a document (R. 136). At the trial, the al­
leged contents of the resolution were proved, over the objec­
tion of the petitioner, by the recollection of a witness who 
testified that he had introduced 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, 11.88% of all 
adult citizens of Texas.1 Grovey v. Townsend should be 
overruled.

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



30

Conclusion.

Wherefore, it is respectfully submitted that the 
judgment of the United States Circuit Court of 
Appeals for the Fifth Circuit should be reversed.

Respectfully submitted,

T hurgood Marshall,
New York, N. Y.,

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

Attorneys for Petitioner.
W. J. D urham ,

Sherman Texas,
W. R obert M ing, J r .,

Chicago, 111.,
George M. J ohnson,

Berkeley, Calif.,
L eon A. R ansom,

Columbus, Ohio,
Carter W esley,

Houston, Texas,
M ilton R. K onvitz,

Newark, N. J.,
Of Counsel.



L a w y e r s  P ress, I n c ., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300