Rice v Elmore Brief Appellee

    1ST THE

Ilnitzh States (fltrnttt dmtrt o! Appeals
Fourth Circuit

No. 5664

CLAY RICE, ET AL., Appellants,

vs.

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

OU APPEAL EEOM THE DISTRICT COURT OP THE UNITED STATES 
FOR THE EASTERN DISTRICT OP SOUTH CAROLINA

BRIEF FOR APPELLEE

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

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

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

Attorneys for Appellee.



I N D E X

PAGE

Statement of Case__________________________________  1
Statement of Facts_________________________________  2
A r g u m e n t  :

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

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

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

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

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

Conclusion ________________________________________  33

Table of Cases.

Blakeney v. California Shipbuilding Co., 16 Lab. Bel.
Bep. 571 _______________________________________  11

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

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

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

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



11
PAGE

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

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

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

(1944) ______________________________________ :___ 11
Swafford v. Templeton, 185 U. S. 487 (1902)_________  13
Tunstall v. Brotherhood of Locomotive Firemen, 323

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

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

P. (2d) 903 (1946)___________________ :___________ 11
Wallace Corp. v. N. L. R. B., 323 U. S. 248 (1944)____ 11

Other Authorities Cited.

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



Imtt'ft Elates dtrottt ©our! at Appeals
Fourth Circuit

Clay R ice, et al .,
Appellants,

vs.

G e o r g e  E lmore, on behalf o f  h im self and 
others sim ilarly situated,

Appellee.

No. 5664

BRIEF FOR APPELLEE 

Statement of Case

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

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



2

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

Statement of Facts

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

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

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

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



3

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

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

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

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

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

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

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

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



4

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

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

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



5

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

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

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

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

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



6

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

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

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

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



7

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

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

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

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

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

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

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



8

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

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

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

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



9

A R G U M E N T

Preliminary Statement

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

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

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

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



10

The record as to the white primary of the Democratic 
party is closely similar to that of the discriminatory regis­
tration statutes. The Texas cases 8 demonstrate that after 
each decision of the Supreme Court there was an effort to 
circumvent the decision. After Smith v. Allwright3 4 no 
further effort was made in Texas. However, South Caro­
lina repealed all of its primary statutes in a deliberate 
effort to circumvent this decision and to continue to prevent 
Negroes from exercising their choice of candidates in the 
only meaningful election in South Carolina, viz., the Demo­
cratic Primary.

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

%
Beginning with the Classic case, the principle has been 

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

3 Grovey v. Townsend, 295 U. S. 45 (1935) ; Nixon v. Condon, 286 
U. S. 73 (1932) ; Nixon v. Herndon, 273 U. S. 536, 540 (1927)

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



11

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

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

8 Even  ̂assuming for the purpose of argument that the Democratic 
party js in South Carolina a private voluntary association its action 
still violates the Fourteenth and Fifteenth Amendments if in fact a 
state agency relationship exists. In Marsh v. Alabama, 326 U. S. 501 
(1946), the Supreme Court held that the due process clause of the 
Federal Constitution was a limitation on the actions of a purely private 
corporation since the corporation occupied a peculiar position within 
the economic and political system. In Kerr v. Enoch Pratt Free 
Library, 149 F. (2d) 212 (C. C. A. 4th, 1945) this Court held that 
smce the corporation had_ invoked the power of the state for its 
creation and relied upon city funds for its existence it was in fact a 
state function. Recent decisions have indicated that labor unions, 
although private voluntary associations, are subject to the limitations 
of the due process clause of the federal Constitution. Steele v. Louis­
ville & Nashville Railroad, 323 U. S. 192 (1944); Tunstall v. Brother­
hood of Locomotive Firemen, 323 U. S. 210 (1944).

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



12

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

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

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

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

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

7 Smith v. Allwright, supra, at page 664.



13

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

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

I
Prior to the repeal of the primary election statutes 

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

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

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

8 U. S. v. Classic, supra; E x Parte Yarbrough, 110 U. S. 651 
(1884); Swafford v. Templeton, 185 U. S. 487 (1902); United States 
v. Mosely, 238 U. S. 383 (1915).



14

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

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

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

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



15

whether or not Article One applied to primary elections. 
The prevailing opinion written by Mr. Justice M cK eynolds 
took the position that Article One, 8. 4 related only to the 
manner of holding general elections and was not a grant 
of authority to the federal government to control the con­
duct of party primaries or conventions. The dissenting 
justices took the position that Article One, Section 4 gave 
to Congress the right to regulate the primary as well as 
the general election. Mr. Justice P itney  in one of the dis­
senting opinions went to the very core of the relationship 
between the primary election, the general election and the 
right of a qualified elector to vote. It was there said:

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

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



16

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

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

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

10 United States v. Classic, supra; Smith v. Allmright, supra; Chap­
man v. King, infra.



17

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

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

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



18

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

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

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



19

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

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

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



20

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

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

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

B. Federal Courts have jurisdiction of this case.

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

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



21

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

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

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

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

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



22

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

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

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

11 Negro Disenfranchisement—A Challenge To the Constitution, 47 
Col. Law Review, 76, 87 (1947).



23

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

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

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

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

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

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

12 U. S. v. Gradwell, 243 U. S. 476, 61 L. ed. 857 (1917) ; New­
berry v. U. S 256 U. S. 232, 65 L. ed. 913 (1921); Smith v. Black- 
well (C. C. A. 4th), 115 Fed. (2d) 186 (1940) ; Civil Rights Cases, 
109 U. S. 3, 27 L. ed. 835 (1883) ; Robinson v. Holman, 181 Ark. 428, 
26 S. W. (2d) 66 (1930) (cert, denied 282 U. S. 804, 75 L. ed. 722).

13 U. S. v. Classic, supra; Smith v. Allwright, supra; Chapman v. 
King, 154 Fed. (2d) 460 (cert, denied 60 Sup. Ct. 905, 90 L. ed. 
1025) (1946).

14 287 U. S. 378 (1932).



24

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

Judicial Action may be State Action. Powell v. Ala­
bama.15 16 17

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

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

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

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

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

15 207 U. S. 20 (1907).
16 287 U. S. 45 (1932).
17 325 U. S. 91 (1945).



25

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

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

II

Repeal of primary statutes did not change the 
status of the Democratic Primary of South Carolina.

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

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



26

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

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

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

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 Hughes, 
o lo ,| Fatc ° f the Dlrect Primary,”  10 National Municipal Review, 
21, 24. See also: Hasbrouck, “ Party Government in the House of 
Representatives” (1927), 172, 176, 177: Merriam and Overacker, 

Primary Elections” (1928), 267-269.
On the great decrease in the vote cast in the general election from 

that cast at the primary in the “ one-party” areas of the country, see 
164 rf 1940 Ŝt0ne^’ “ Suffrage in the South,” 29 Survey Graphic 163,

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



27

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

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

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



28

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

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

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



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

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

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

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



30

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

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



31

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

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

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

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

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



32

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

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

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



33

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

Conclusion

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



34

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

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

H arold E . B oulware,
1109^ Washington Street, 
Columbia, South Carolina,

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

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

Attorneys for Appellee.