Smith v Allwright Brief of Appellant

    IN THE

Unit?b States dimrit dmtrt nf Appeals
for the F ifth Circuit

No. 10382

LOXXIE E. SMITH,

vs.
Appellant,

S. E. ALL WRIGHT, Election Judge, and JAMES J. 
LIUZZA, Associate Election Judge, 48th Precinct of 
Harris County, Texas,

A ppellees.

BRIEF OF APPELLANT

T hitrgood Marshall, 
New York,

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

AY. J. D urham,
Sherman, Texas,

Attorneys for Appellant.

W . Robert M ing, Jr., 
Chicago, 111.,

George M. Johnson,
San Francisco, Calif.,

Leon A. Ransom, 
Columbus, Ohio,

Carter W esley,
H. S. Davis, Jr., 

Houston, Texas,
Of Counsel.



TABLE OF CONTENTS

PAGE
Statement of the C a se ......................................................  1

Statement of F a c ts ............................................................  9

Primary E lections......................................................  10

The Democratic Party in T ex a s .............................  1G

Expenses of the Primary ...................................  17

Specifications of Errors ................................................... 18

A rgument

I. Appellees’ refusal to permit appellant to vote in 
the 1940 Texas Democratic Primary Election de­
prived appellant of a right secured him by the 
Constitution and Laws of the United States.........  20

A. The right to vote for federal officers in a 
Democratic Congressional Primary in Texas 
is secured and protected by Article I and 
Amendment X Y II of the United States Con­
stitution ................................................................  20

(1) The Democratic Primary in Texas is an 
integral part of the procedure for the 
popular choice of federal officers................  23
Expenses of Primary That Are Paid by 

State of T ex a s .........................................  26
Expenses of Primary That Are Paid by 

Candidates ...............................................  27



11 T A B L E  O F  C O N T E N T S

PAGE
(2) The Democratic Primary in Texas is the 

only stage of the election procedure at 
which the choice of the voters is of 
significance ..................................................  29

B. The right to vote for federal officers in a
Democratic Primary in Texas is secured and 
protected by the Fifteenth Amendment of the 
United States Constitution...............................  33

C. The right to vote for federal officers in a 
Democratic Primary in Texas is also secured 
and protected by the Fourteenth Amendment
of the United States Constitution...................  36

II. The action of the appellees in refusing to permit 
appellant to vote in the 1940 Texas Democratic 
Primary made them liable to appellant in dam­
ages under the provisions of Sections 31 and 43 
of Title 8 of the United States Code.....................  39

III. The District Court erred in basing its conclusions 
of law on irrelevant matters admittedly outside 
the record of this proceeding.................................  42

Conclusion ..................................................................................  44

Appendix A ........................................................................  45
Appendix B ........................................................................ 48
Appendix C ........................................................................  52
Appendix D ........................................................................  55



T A B L E  O F  C O N T E N T S  111

LIST OF CITATIONS 

Cases

PAGES
Briscoe v. Boyle, 286 S. W. 275 (1926).............................  25
Brown et al. v. Borden, 50 S. W. (2d) 261.....................  30
Burnet v. Coronado Oil <£ Gas Co., 285 U. S. 393 

(1932) .............................................................................. 32
Chicago, Burlington By. v. Chicago, 166 U. S. 266.......... 37
Ex parte Virginia, 100 U. S. 339...................................36,37
Ex parte Yarbrough, 110 U. S. 651................................. 21, 25
Grovey v. Townsend, 295 U. S. 4 5 ... .4, 5, 6, 7, 31, 32, 37, 39 
Guinn v. United States, 238 U. S. 347........................... 25, 35
loiva-Des Moines Bank v. Bennett, 284 U. S. 239.......... 37
Kauffman et al. v. Parker, 99 S. W. (2d) 1074 (1936).. 28
Lane v. Wilson, 307 U. S. 268 (1939)...................... 21,35,41
Missouri ex rel. Gaines v. Canada, 305 U. S. 337............ 37
Mosher v. City of Phoenix, 287 U. S. 29.........................  37
Myers v. Anderson, 238 U. S. 368........................... 21,35,41
Nixon v. Herndon, 273 LT. S. 536.......................................  34
Small v. Parker, 119 S. W. (2d) 609 (1939)................ 28
State v. Meharg, 287 S. W. 670 (1926).........................  29
Strauder v. West Virginia, 100 U. S. 303.......................  36
Swafford v. Templeton, 185 U. S. 487...............................  21
Tucker v. Bagby, 52 S. W. (2d) 801 (1932).....................  25
United States v. Classic et al., 313 U. S. 299..........4, 5, 6, 7,

21, 22, 23, 31, 32, 33, 35, 37, 39, 41, 42
U. S. v. Moseley, 238 U. S. 383.......................................21, 35
Wiley v. Sinkler, 179 U. S. 58........................................... 21



IV T A B L E  O F  C O N T E N T S

U. S. Constitution and Code
pages

Sections 2 and 4, Article I, U. S. Constitution.............. 20
Fourteenth Amendment, U. S. Constitution...................  36
Fifteenth Amendment, U. S. Constitution.....................  33
Seventeenth Amendment, U. S. Constitution..............20, 21
Section 24(1) Judicial Code............................................. 2
Section 24(11) Judicial Code.......................................... 2,42
Section 24(14) Judicial Code........................................... 2
Section 31, Title 8, U. S. C. A .................................... 2, 39, 40
Section 43, Title 8, U. S. C. A ............................... 2,40,41,42
Section 274(D) Judicial Code.........................   42
Section 52 Criminal C od e ............................................... 41,42

Law Review A eticles

2 University of Chicago Law Review 640 (1 9 35 ).... 38
48 Harvard Law Review 1436 (1936)...........................  38
32 Michigan Law Review 431........................................... 38
20 North Carolina Law Review 96 (1941).....................  24

M iscellaneous

Hasbrouck, Party Government in the House of Repre­
sentatives ........................................................................  29

Merriam and Overacker Primary Elections.................. 29
10 National Municipal Review 23, 24............................  29
29 Survey Graphic 163....................................................... 29



IN THE

United States Circuit Court of Appeals
fob the F ifth Circuit

No. 10382

LONNIE E. SMITH,

vs.
Appellant,

S. E. ALLWRIGHT, Election Judge, and JAMES J. 
LIUZZA, Associate Election Judge, 48tli Precinct of 
Harris County, Texas,

Appellees.

BRIEF OF APPELLANT

PART ONE

Statement of the Case

This is an appeal by the plaintiff Lonnie E. Smith from 
a final judgment below entered in the District Court of the 
United States for the Southern District of Texas, Houston 
Division, on May 30, 1942 (R. 85), in the above entitled 
cause which was tried on an amended complaint and an 
amended answer to said complaint.

The amended complaint filed on April 25, 1942 alleged
that on July 27, 1940 the defendants below as election



9

judges of the 48th Precinct of Harris County, Texas, de­
nied the plaintiff below and other qualified Negro electors 
of the right to vote in the Democratic Primary elections 
held on that date. It was further alleged that this refusal 
was based solely on the race or color of plaintiff and others 
of his race and was in violation of the Constitution and 
laws of the United States. The complaint prayed for a 
declaratory judgment, a permanent injunction and Five 
Thousand Dollars in damages (R. 4-58). An amended 
answer was filed on the same date denying most of the 
allegations of the complaint (R. 59-70). Thereafter on 
April 25, 1942, a hearing on the merits was held on the 
amended complaint, amended answer, stipulations of facts 
and oral testimony.

Thereupon, on May 30, 1942, Judge T. M. K ennerly 
made the following Findings of Fact, Conclusions of Law 
and Final Judgment :

STATEMENT OF THE CASE

This is another of many cases arising in Texas, several 
in this District, involving the question of the right of Ne­
groes to vote in Texas Democratic Primary Elections.

Plaintiff sues Defendants, who are Democratic Primary 
Election Judges of Precinct 48, Harris County, Texas, for 
damages for refusing to allow him to vote at such Pri­
maries on July 27, 1940, and August 24, 1940, and also 
prays, for himself and for other persons similarly situ­
ated, for Declaratory Judgment, declaring that they are 
entitled to vote at the Democratic Primaries in Texas.

The Jurisdiction is under Subdivisions 1, 11, and 14, 
of Section 41, Title 28, and Sections 31 and 43, Title 8, 
U. S. C. A.



3

FINDINGS OF FACT

(a) Plaintiff is a Negro, a natural born citizen of the 
United States, a qualified elector and voter under the Con­
stitution and other Laws of the United States and of the 
State of Texas, and on July 27, 1940, and August 24, 1940, 
resided in Voting Precinct 48, Harris County, Texas. He 
is a Democrat.

(b) On July 27, 1940, and again on August 24, 1940, 
being a qualified voter as stated, he presented himself be­
fore Defendants, Democratic Primary Election Judges of 
Precinct 48, exhibited his poll tax receipt, and requested 
that he be permitted to vote and cast his ballot at such 
Primary Election, which was being held for the nomina­
tion of State and County Officers, United States Senator, 
and Congressman. Defendants refused to allow him to 
vote, basing their refusal upon a Eesolution of the Demo­
cratic Party in Texas passed May 4, 1932, to the effect that 
only white citizens of the State of Texas shall be eligible 
for membership in the Democratic Party and entitled to 
participate in its deliberations. All white citizens quali­
fied to vote in such Precinct who presented themselves were 
allowed to vote at such Primary Election, but no Negroes 
were allowed to vote.

(c) There is no proof as to the amount of damages, if 
any, suffered by Plaintiff by being refused the right to 
vote.

(d) The facts in detail have been stipulated, but it 
seems only necessary to refer to the Stipulations and make 
them a part hereof.



4

CONCLUSIONS OF LAW

But for a subsequent decision of the Supreme Court 
(United States v. Classic, 313 U. S. 301, 85 L. Ed. 1368), 
this case could and would be quickly disposed of by citing 
Grovey v. Toivnsend, 295 U. S. 47, 79 L. Ed. 1292. Plain­
tiff, however, contends that because of the decision in the 
Classic case, Grovey v. Townsend is no longer controlling, 
and it is, therefore, necessary to examine closely the rea­
soning in both cases.

The facts in Grovey v. Townsend were substantially the 
same as here.

The Classic case was an Indictment against Classic, 
et al., Election Commissioners under the Law of the State 
of Louisiana, charging that they wilfully altered and falsely 
counted and certified ballots of voters cast in a Democratic 
Primary Election in Louisiana, to nominate a candidate of 
the Democratic Party for Representative in Congress. 
The question was whether the right of a voter to cast his 
vote and have it counted in such election wras a right given 
or secured by the Constitution of the United States, so as 
to make Classic, et al., guilty of an offense against the laws 
of the United States by wilfully altering and falsely count­
ing and certifying the ballot of such voter. The two con­
trolling points in the case, as stated in the Opinion, are as 
follows (italics m ine):

“ The right to participate in the choice of repre­
sentatives for Congress includes, as we have said, 
the right to cast a ballot and to have it counted at 
the general election, whether for the successful can­
didate or not. Where the State law has made the 
primary an integral part of the procedure of choice, 
or where in fact the primary effectively controls the 
choice, the right of the elector to have his ballot 
counted at the primary is likewise included in the



right protected by Article I, Sec. 2. And this right 
of participation is protected just as is the right to 
vote at the election, where the primary is by law 
made an integral part of the election machinery, 
whether the voter exercises his right in a party pri­
mary which invariably, sometimes or never deter­
mines the ultimate choice of the representative. 
Here, even apart from the circumstances that the 
Louisiana primary is made by law an integral part 
of the procedure of choice, the right to choose a rep­
resentative is in fact controlled by the primary be­
cause, as is alleged in the indictment, the choice of 
candidates at the Democratic primary determines the 
choice of the elected representative. Moreover, we 
cannot close our eyes to the fact, already mentioned, 
that the practical influence of the choice of candi­
dates at the primary may be so great as to affect 
profoundly the choice at the general election, even 
though there is no effective legal prohibition upon 
the rejection at the election of the choice made at 
the primary, and may thus operate to deprive the 
voter of his constitutional right of choice. This was 
noted and extensively commented upon by the con­
curring Justices in Newberry v. United States, 256 
U. S. 263-269, 285, 287.”

Discussing now the first controlling point.
In Louisiana, the State Law has made the Primary “ an 

integral part of the procedure of choice.”  In Texas, it has 
not. In the Classic case, it is said with respect to the 
Louisiana State Law (italics m ine):

The primary is conducted by the State at public ex­
pense. Act No. 46, supra, Sec. 35. The primary, as is the 
general election, is subject to numerous statutory regula­
tions as to the time, place and manner of conducting the 
election, including provisions to insure that the ballots 
cast at the primary are correctly counted, and the results 
of the count correctly recorded and certified to the Secre­



6

tary of State, whose duty it is to place the names of the suc­
cessful candidates of each party on the official ballot, etc.

In Grovey v. Townsend, it is said (italics m ine):

“ While it is true that Texas has by its laws elabo­
rately provided for the expression of party prefer­
ence 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 pri­
mary; the expenses of it are not borne by the State, 
but by members of the party seeking nomination 
(Arts. 3108; 3110); the ballots are furnished not by 
the State, but by the agencies of the party (Arts. 
3109; 3119); the votes are counted and the returns 
made by instrumentalities created by the party 
(Arts. 3123; 3124-5; 3127) ; and the State recognizes 
the State convention as the organ of the party for 
the declaration of principles and the formulation of 
policies (Arts. 3120; 3139).”

There are other essential differences between the Laws 
of the two States, all of which make it clear that, as stated, 
while the Law of Louisiana makes the Primary an integral 
part of the procedure, the Law of Texas does not do so.

The other controlling point in the Classic case is the 
finding that “ The choice of candidates at the Democratic 
primary determines the choice of the elected representa­
tive. ’ ’

The main thing in this Record bearing on the question 
is this, quoted from the Stipulations:

“ Since 1859 all Democratic nominees, for Con­
gress, Senate and Governor, have been elected in 
Texas, with two exceptions.”

I f  this is historically correct, which I doubt, and if I 
may look outside the Record, then such Stipulation fails to



take into account that many times during the period named, 
there was strong opposition not only to the three Demo­
cratic nominees named but to other Democratic nominees, 
and that the Democratic nominees for President failed to 
carry Texas in 1928. I do not regard the Stipulation 
quoted as meaning that the choice of candidates at the 
Democratic Primary in Texas “ determines the choice of 
the elected representative.”  In politics “ you cannot al­
ways sometimes tell which to least expect the most.”

However that may be, I am not convinced that the Su­
preme Court would have based the ruling in the Classic 
case solely upon the second point, nor am I convinced that 
the Supreme Court intended to overrule Grovey v. Town­
send. I, therefore, follow Grovey v. Townsend, and render 
Judgment for Defendants.

T. M. K enn erly ,
Judge.

F inal, J udgment 

Filed May 30, 1942

In the United States District Court for the Southern District 
of Texas, Houston Division

Lonnie E. Smith

vs.

S. E. Allwright, Election Judge, and James J. Liuzza, Asso­
ciate Election Judge, 48th Precinct of Harris County, 
Texas.

Civil Action No. 645

On the 11th day of May, A. D. 1942, came on to be heard 
before the Court, and at a regular term thereof, the above



8

entitled and numbered cause, wherein plaintiff, Lonnie E. 
Smith, sought to recover of and against the defendants, 
S. E. Allwright, Election Judge, and James J. Liuzza, Asso­
ciate Election Judge, 48th Precinct of Harris County, Texas, 
$5,000.00 damages, and for Declaratory Judgment under 
Section 400, Title 28, U. S. C. A., declaring and adjudging 
(as stated in Plaintiff’s First Amended Bill of Complaint):

“ That the policy, custom or usage of the defend­
ants, and each of them, in denying plaintiff and other 
qualified Negro electors the right to vote in Demo­
cratic Primary Elections in Texas, solely on account 
of their race or color, is unconstitutional as a viola­
tion of Sections 2 and 4, of Article 1, and Amend­
ments Fourteen, Fifteen and Seventeen of the United 
States Constitution.”

And the plaintiff and defendants appeared in person and 
by their counsel of record and answered ready for trial, 
whereupon the matters in controversy were submitted to 
the Court, and the Court having received and heard the 
bills, answers, stipulations, evidence and argument of coun­
sel, is of the opinion that the law and the facts are with the 
defendants. It is, therefore,

Ordered, Adjudged and Decreed by the Court that plain­
tiff, Lonnie E. Smith, take nothing against defendants, S. E. 
Allwright, Election Judge, 48th Precinct, Harris County, 
Texas, in his suit for damages. It is further

Ordered, Adjudged and Decreed by the Court under the 
Declaratory Judgment Act of the United States that the 
practice of the defendants in enforcing and maintaining 
the policy, custom and usage of which plaintiff and other 
Negro citizens similarly situated who are qualified electors 
are denied the right to cast ballots at the Democratic Pri­
mary Elections in Texas, solely on account of their race or



9

color, is constitutional, and does not deny or abridge their 
right to vote within the meaning of the Fourteenth, F if­
teenth or Seventeenth Amendment to the United States 
Constitution or Sections 2 and 4 of Article 1 of the United 
States Constitution. It is further

Ordered, Adjudged and Decreed by the Court that all 
costs herein in this Court expended be, and they are hereby 
taxed against the plaintiff, Lonnie E. Smith, for which let 
execution issue.

To all the above judgment of this Court the plaintiff, 
Lonnie E. Smith, excepted and gave notice of appeal to the 
United States Circuit Court of Appeals in and for the Fifth 
Circuit at New Orleans, Louisiana.

Entered this 30tli day of May, A. D. 1942, as the judg­
ment of the Court.

(S.) T. M. K enn erly ,
Judge (R. 80-87).

Statement of Facts

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

Appellant is a Negro, a native born citizen of the United 
States residing in Houston, Harris County, Texas, more 
than 21 years of age. He has resided more than 5 years 
in the 48th Precinct of Harris County, Texas. He has a poll 
tax receipt, issued prior to January 31, 1940, as required 
by law, Appellant is and has been a duly and legally qualified 
elector under the laws of the United States and the State 
of Texas, and is subject to no disqualification.



1 0

Appellant is a believer in tlie tenets of the Democratic 
Party. Appellant has never voted for any other candidate, 
than those of the Democratic Party, in any General Elec­
tion at all times material to this case; has been and is ready 
and willing to take the pledge of persons voting in the Demo­
cratic Primary (R. 71, 81).

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

On July 27, 1940, appellant presented himself to vote, 
in the said Democratic Primary, at the regular polling place 
for the 48th Precinct with his poll tax receipt and requested 
to be permitted to vote. Appellees refused him a ballot, 
because of his race and color, in accordance with the instruc­
tions 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, which statute 
sets forth identical qualifications for voting in both “ pri­
mary”  and “ general”  elections (R. 11,12, 23).

Primary Elections

That in addition, the State of Texas exercising an essen­
tial governmental function has established, both by consti­
tutional provisions and statutes, elaborate machinery for 
the exercise of the elective franchise. Included therein are



11

three steps, namely, the listing of qualified voters, selection 
of candidates and the general elections. Complete and de­
tailed requirements for the listing of qualified electors and 
the holding of elections are established by statutes which 
have been codified in the Revised Civil Statutes of Texas 
(Articles 2923-3165). All elections to public office held in 
the State of Texas are held under the authority of these 
statutes (R. 7).

Primary elections in Texas were created by statute and 
have been maintained solely by authority of the statutes of 
the State of Texas. The present election laws of Texas 
originated with the so-called “ Terrell Law,”  being “ An 
Act to regulate elections and to prescribe penalties for its 
violation (General Laws of Texas, 1903, Chapter 51, p. 
133).”  Sections 82 to 107 of this statute set out the require­
ments for the holding of primary elections. In 1905 that 
Statute was repealed and in place thereof Chapter 11 of 
the General Laws of Texas, 1905, was enacted. These stat­
utes established almost identical requirements for both the 
“ primary”  and “ general”  elections as integral parts of the 
election machinery for the State of Texas. A comparative 
table of present election laws is set out in Appendix A, at­
tached hereto and prayed to be read as a part hereof as 
though set out in full. Since 1905, this legislation has con­
stituted the sole authority for the conduct of all elections, 
primary, special and general, in the State of Texas (R. 7, 8).

Candidates for the office of United States Senator from 
Texas can only be placed on the official ballot in the general 
election after nomination at the statutory primary election. 
Election of Senators from Texas to the Congress of the 
United States are regulated by Article 3089 of the Re­
vised Statutes of Texas, Articles 3089 and 3090, Article 
3089 of which provides: “ The name of no candidate for



12

United States Senator shall be placed upon the official bal­
lot of any party or of any organization as the nominee of 
said party or organization for said office unless the said 
candidate has been duly nominated and selected as herein 
provided,”  and, “ each party desiring to nominate a can­
didate for United States Senator shall, if such election is 
to be held on the first Tuesday after the first Monday in 
November of any year, nominate or select such candidates 
at a general primary election to be held throughout the 
State on the fourth Saturday in July next preceding such 
election for United States Senator”  (E. 8).

Article 3101 of the Revised Civil Statutes of Texas re­
quires that candidates for the United States Congress, Gov­
ernor, and State officers of political parties that cast one 
hundred thousand votes or more be nominated in statutory 
primary elections. The Democratic Party is the only 
organized political party in Texas that casts more than one 
hundred thousand votes at the last general election prior to 
July 27, 1940 (R. 8, 9).

That pursuant to Chapter 12 and 13 of Title 50 of the 
Revised Civil Statutes of Texas it was required that the 
Democratic primary election be held on the fourth Satur­
day in July, 1940, and on the fourth Saturday in August, 
1940, being respective, July 27, 1940, and August 24, 1940. 
The holding of this Primary election was mandatory under 
the laws of Texas as an integral part of the election ma­
chinery of the State of Texas and as an essential govern­
mental function of said State of Texas. Article 2956 of 
the Revised Civil Statutes of Texas authorized absentee 
voting as in general elections; Articles 2980-2981 specified 
the form of ballot and the manner of its marking as other 
articles do for the general elections; Article 2984 fixed the 
number of ballots to be provided; Articles 2986, 2987, 2990



13

permitted tlie name of the voting booths, guard rails, and 
ballot boxes which by Articles 2986-2997 of the Revised 
Civil Statutes of Texas are provided for general elections; 
Article 2997a, as amended by Acts 1937, ch. 52, makes iden­
tical provisions for use of voting machines in both “ pri­
mary”  and “ general”  elections in Texas; Articles 3003- 
3-25 provided elaborately for the purity of the ballot box 
in primary elections; Article 3128 commanded that the 
sealed ballot boxes be delivered to the defendant as county 
clerk after the Primary election as is provided in Article 
3028 for general elections; and Articles 3146-3152 con­
ferred jurisdiction of primary election contests upon State 
District Courts as is provided by Articles 3041-3075 in 
case of General elections (R. 9, 10).

According to the stipulations of facts made a part of 
the Findings of Facts of the District Court (R. 81) : “ At 
all times herein the only State-wide primaries held in Texas 
have been for nominees of the Democratic Party” ; and 
that: “ Since 1859 all Democratic nominees, for Congress, 
Senate and Governor have been elected in Texas, with two 
exceptions”  (R. 72).

The Harris County Tax Assessor and Collector pre­
pared a list of qualified voters, including appellant, and 
delivered a copy of this list to the appellees prior to July 
27, 1940, without expense to either candidates, the Demo­
cratic Party or any officers thereof (R. 72).

The County Clerk of Harris County, Texas, issues and 
receives absentee ballots for the Democratic Primaries. 
The assistants to the County Clerk for Harris County, 
Texas, during the period of from 20 days to 3 days prior to 
July 27, 1940, issued and received absentee ballots for the 
Democratic Primary. The said County Clerk for Harris 
County, Texas, also receives absentee ballots for General



14

Elections, School District Elections, City of Houston Elec­
tions and other District Elections (R. 72, 73).

The County Clerk, the Tax Assessor and Collector, the 
County Judge of Harris County and the Secretary of the 
State of Texas all have performed their duties under Arti­
cles 3100-3153, Revised Civil Statutes of Texas, in connec­
tion with holding of the primaries on July 27, 1940, and 
August 24,1940, in Harris County, without cost to the candi­
dates or the Democratic Party or any official thereof (R. 73).

The Democratic candidates for the office of U. S. Sen­
ator and Congressman were nominated at the Primary 
held on July 27, 1940, and such nominations were certified 
by the Secretary of State to the General Election officials 
as the Democratic nominees and that all such Democratic 
candidates were elected to the office of U. S. Senator and 
Congressman at the November General Election of 1940 
(R. 73).

All qualified electors of the Negro race in Texas are 
similarly situated as the appellant in this lawsuit, as to 
State-wide Democratic Primaries (R. 73).

After such Primary the names of the candidates receiv­
ing the nomination are certified by the County Executive 
Committee to the State Executive Committee, and the State 
Executive Committee, in turn, certifies such nominees to 
the Secretary of State who places the names of such candi­
dates on the General Election Ballot to be voted on in the 
General Election. Such services as are rendered by the 
Secretary of State, are paid by the State of Texas. Such 
Secretary of State also certifies other Party candidates as 
well as Independent candidates for places upon the Gen­
eral Election Ballot, such services as rendered by the Sec­
retary of State are paid by the State of Texas (R. 74).



15

Generally, the regularly elected Democratic Committee­
men of each precinct in Harris County, Texas, are ap­
pointed to act as Presiding Judges in the Democratic Pri­
maries. Generally, the same individuals are appointed by 
the Commissioner’s Court of Harris County, Texas, to act 
as Election Judges in the General Elections. The appellees 
conducted the Primaries of 1940 in the same general man­
ner as the General Elections, in which Negro Electors are 
permited to vote (R. 74).

Appellees S. E. Allwright as Election Judge and James 
J. Liuzza as Associate Election Judge on July 27, 1940, and 
August 24, 1940, were appointed, qualified, and acting as 
administrative officers of the State of Texas solely by virtue 
of Articles 3104 and 3105 of the Revised Civil Statutes of 
Texas. On the above dates the appellees, as Election Judge 
and Associate Election Judge, were under a positive statu­
tory duty to administer oaths, to preserve order at the 
election, to appoint special officers to enforce the observance 
of order and to make arrests, as judges of general elections 
are authorized and required to do. Appellees Allwright and 
Liuzza were also required to compel the observance of the 
law that prohibits loitering or electioneering within one 
hundred feet of the entrance to the polling place, and to 
arrest, or cause to be arrested anyone engaged in the work of 
conveying voters to the polls in carriage or other convey­
ances, except as permitted by statute. All such police 
powers are derived from and exercised under the sovereign 
authority of the State of Texas (R. 10).

The appellees Allwright and Liuzza as administrative 
officers of the State of Texas were required to take the 
same oath as officials of “ general elections”  pursuant to 
Article 3104 of the Revised Civil Statutes of Texas which 
provides in part that: “ * * * such presiding judge shall



16

select an associate judge and a clerk to assist in conducting 
the election; two supervisors may be chosen by any one- 
fourth of the party candidates, who, with the judges and 
clerks, shall take the oath required of such officers in gen­
eral election * * Article 217 of the Penal Code of
the State of Texas provides: “ Any judge of any election 
who shall refuse to receive the vote of any qualified elector, 
who, when his vote is objected to shows by his own oath that 
he is entitled to vote, or who shall refuse to deliver an offi­
cial ballot to one entitled to vote under the law, or who shall 
wilfully refuse to receive a ballot after one entitled to vote 
has legally folded and returned the same, shall be fined not 
to exceed Five Hundred Dollars.’ ’ By Article 231 of the 
Penal Code of the State of Texas the term “ election”  as 
used in Article 217 and other articles of Chapter IV thereof, 
“ means any election, either general or special, or pri­
mary * * *”  (B. 10).

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 
Democratic Party in Texas is a voluntary association of 
individuals without any fixed rules for membership other 
than to vote in the “ primary”  elections (R. 119). At these 
“ primary”  elections any white person, regardless of party 
affiliation, is permitted to vote (R. 106, 81).

There is no constitution, by-laws nor fixed rules for the 
Democratic Party (R. 133, 146). It is admittedly run in a 
“ slip-shod”  manner (R. 146). 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



37

years. There are no permanent officers of the party (R. 
125). Officers of the Convention are elected at each conven­
tion and their duties end at the adjournment of the Con­
vention (R. 146).

Every two years “ primary”  elections are held pursuant 
to the election 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 the holding of these elec­
tions other than the election laws of Texas (R. 133).

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 solely by virtue of 
the election 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 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 are certified by the County Executive 
Committee to the State Executive Committee, and the State 
Executive Committee, in turn, certifies such nominees to 
the Secretary of State who places the names of such candi­
dates on the General Election Ballot to be voted on in the 
General Election. Such services as are rendered by the Sec­
retary of State, are paid by the State of Texas. Said Secre­
tary of State also certifies other Party candidates as well 
as Independent candidates for places upon the General



18

Election Ballot, such services as rendered hy the Secretary 
of State are paid by the State of Texas (R. 74).

Although some of the expenses of the “ primary”  elec­
tions are paid by the Harris County Democratic Execu­
tive Committee (R. 76), 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 Har­
ris County Democratic Executive Committee, were re­
turned pro rata to each candidate for Democratic nominee 
who had made a contribution to the Harris County Demo­
cratic Executive Committee, following the assessment so 
levied”  (R. 76).

PART TW O

Specifications of Errors

The District Court erred:

1. In refusing to find that by virtue of appellees’ con­
duct, appellant was denied the right secured by Article I, 
Sections 2 and 4 and the Seventeenth Amendment of the 
United States Constitution to all citizens of the United 
States who are qualified electors to participate in an elec­
tion of federal officers.

2. In refusing to find that by virtue of appellees’ con­
duct, appellant was denied the right to vote solely on ac­
count of race or color in violation of the Fifteenth Amend­
ment of the United States Constitution.

3. In refusing to find that appellees’ conduct denied 
the appellant equal protection of the laws in violation of



19

the Fourteenth Amendment of the United States Consti­
tution.

4. In refusing to find that the appellees acted under 
color of statute, ordinance, regulation, custom or usage of 
the State of Texas within the meaning of the United States 
Code, Title 8, Sections 31 and 43 and the Fourteenth and 
Fifteenth Amendments of the United States Constitution.

5. In finding that the Democratic Primary in Texas is 
not an integral part of the election machinery of that state.

6. In refusing to find that the choice of candidates at 
the Democratic Primary in Texas determines the choice 
of the elected representatives for the several offices.

7. In refusing to find that appellees’ conduct made them 
liable to appellant in damages under the provisions of Title 
8, Sections 31 and 43 of the United States Code.

8. In entering a declaratory judgment that the prac­
tice of the appellees in enforcing and maintaining the pol­
icy, custom and usage of denying to appellant and other 
Negro citizens similarly situated the right to cast ballots 
at the Democratic Primary Elections in Texas solely on 
account of their race or color does not deny or abridge their 
right to vote within the meaning of Article I, Sections 2 
and 4 and the Fourteenth, Fifteenth and Seventeenth 
Amendments of the United States Constitution.

9. In basing its conclusions of law on irrelevant mat­
ters admittedly outside the record of this proceeding.



20

PART THREE 

ARGUMENT 

I

Appellees’ refusal to permit appellant to vote in the 
1940 Texas Democratic Primary Election deprived ap­
pellant of a right secured him by the Constitution and 
Laws of the United States.

This appeal involves a suit for the protection of a right 
existing by virtue of federal citizenship—namely, the right 
to vote in a federal election. It is admitted that the 1940 
Texas Democratic Primary Election involved the selec­
tion of candidates for federal offices (R. 73, 81).

A. The right to vote for federal officers in a Democratic 
Congressional Primary in Texas is secured and protected 
by Article I and Amendment XVII o f  the United States 
Constitution.

The right of a qualified elector in Texas to choose mem­
bers of Congress is secured and protected by both Section 
II of Article I of the United States Constitution and the 
Seventeenth Amendment, Section II of Article I of which 
provides:

“ The House of Representatives shall be composed 
of Members chosen every second Year by the Peo­
ple of the several States, and the Electors in each 
State shall have the Qualifications requisite for 
Electors of the most Numerous Branch of the State 
Legislature. ’ ’

The Seventeenth Amendment to the Constitution pro­
vides :



21

“ The Senate of the United States shall be com­
posed of two Senators from each state, elected by the 
people thereof, for six years; and each Senator 
shall have one vote. The electors in each state shall 
have the qualifications requisite for electors of the 
most numerous branch of the state legislatures.”

Although the members of the class are determined by 
state law, the United States Supreme Court has repeatedly 
held that the right of these electors to choose is granted 
by the Federal Constitution. Ex parte Yarbrough, 110 
U. S. 651; Wiley v. Sinkler, 179 U. S. 58; Swafford v. Tem­
pleton, 185 U. S. 487; United States v. Moseley, 238 U. S. 
383. See also Guinn v. United States, 238 U. S. 347; Myers 
v. Anderson, 238 U. S. 368; Lane v. Wilson, 307 U. S. 268.

In both Ex parte Yarbrough, supra, and United States 
v. Moseley, supra, the right to choose United States Con­
gressmen was impaired by interference with voting at gen­
eral Congressional elections. It is the position of the ap­
pellant that if a state prefers to conduct Congressional 
elections in two steps rather than in one, the protection of 
the United States Constitution reaches to both steps.1 
Where, as in Texas, the first step is not only important but 
is actually decisive, both in law and in fact, the constitu­
tional guarantees necessarily apply. In the latest case of 
the United States Supreme Court on the question of 
primary elections, United States v. Classic, et al., 313 U. S. 
299, it was decided that Democratic Primary elections in

i ‘ ‘  That the free choice by the people o f representatives in Congress, sub­
ject only to the restrictions to be found in Sections II  and IV  in Article I  and 
elsewhere in the Constitution, was one of the great purposes o f our constitu­
tional scheme o f government cannot be doubted. We cannot regard it as any 
the less the constitutional purpose or its words as any the less guaranteeing the 
integrity of that choice when a state, exercising its privilege in the absence of 
Congressional action, changes the mode o f choice from a single step, a general 
election, to two, o f which the first is a choice at a primary o f those candidates 
from wyhom, as a second step, the representative in Congress is to be chosen at 
the election.”  (17. S. v. Classic, 313 U. S. 299, 316-317.)



22

Louisiana held pursuant to statutes closely similar and al­
most identical with the election statutes of the State of 
Texas involved in the instant case. Mr. Chief Justice 
S tone (then Mr. Associate Justice S to n e) the majority 
opinion in the Classic case held that:

“ Interference with the right to vote in the con­
gressional primary in the Second Congressional Dis­
trict for the choice of Democratic candidate for 
Congress is thus as a matter of law and in fact an 
interference with the effective choice of the voters 
at the only stage of the election procedure when their 
choice is of significance, since it is at the only stage 
when such interference could have any practical ef­
fect on the ultimate result, the choice of the Con­
gressman to represent the district. The primary in 
Louisiana is an integral part of the procedure for 
the popular choice of Congressman. The right of 
qualified voters to vote at the congressional primary 
in Louisiana and to have their ballots counted is 
thus the right to participate in that choice”  (313 
U. S. 299, 314).

The reasoning in the Classic case which was accepted by 
the trial judge in the instant case is as follows:

“ The two controlling points in the case, as stated 
in the Opinion, are as follows (italics m ine):

“  ‘ The right to participate in the choice of repre­
sentatives for Congress includes, as we have said, 
the right to east a ballot and to have it counted at 
the general election, whether for the successful candi­
date or not. Where the State law has made the 
primary an integral part of the procedure of choice, 
or where in fact the primary effectively controls the 
choice, the right of the elector to have his ballot 
counted at the primary is likewise included in the 
right protected by Article I, Sec. 2. And this right 
of participation is protected just as is the right to



23

vote at the election, where the primary is by law 
made an integral part of the election machinery, 
whether the voter exercises his right in a party 
primary which invariably, sometimes or never de­
termines the ultimate choice of the representative. 
Here, even apart from the circumstances that the 
Louisiana primary is made by law an integral pax-t 
of the procedure of choice, the right to choose a 
representative is in fact controlled by the primary 
because, as is alleged in the indictment, the choice of 
candidates at the Democratic primary determines 
the choice of the elected representative. Moreover, 
we cannot close our eyes to the fact, already men­
tioned, that the practical influence of the choice of 
candidates at the primary may be so great as to 
affect profoundly the choice at the general election, 
even though there is no effective legal prohibition 
upon the rejection at the election of the choice made 
at the primary, and may thus operate to deprive the 
voter of his constitutional right of choice. This was 
noted and extensively commented upon by the con­
curring Justices in Newberry v. United States, 256 
U. S. 263-269, 285, 287’ ”  (R. 82-83).

(1 ) The Dem ocratic Primary in Texas is an integral part o f  
the procedure for the popular choice o f federal officers.

A careful comparison of the Texas statutes on general 
elections as compared with the Texas statutes on primary 
elections demonstrates clearly that primary elections in 
Texas are an integral part of the election machinery of that 
State. A comparative table of these statutes is included in 
this brief as Appendix A.

There is also included in this brief a comparative table 
showing the close similarity between the election laws in 
Texas for primary elections and the election laws for the 
State of Louisiana on primary elections used by the U. S. 
Supreme Court in the decision in the Classic case (Ap-



24

pendix B). A comparison of the election statutes of the 
two states demonstrates clearly that the primary elections 
in Texas are an integral part of the election machinery of 
Texas to the same extent that the primary elections in 
Louisiana are an integral part of the election machinery 
of that State.2

Pursuant to authority of Article I, Section 2, and the 
Seventeenth Amendment to the United States Constitution, 
Texas, Louisiana and other states have set up machinery 
for the effective choice of party candidates for members 
of Congress by primary elections and by its laws eliminates 
or seriously restricts the candidacy at the general election 
of all those who are defeated at the primary.

Democratic Primary Elections in Texas are conducted 
pursuant to the election laws of the State of Texas (R. 131- 
132). It is likewise admitted that: “ The Defendants (ap­
pellees here) conducted the Primaries of 1940 in the same 
general manner as the General Elections, in which Negro 
electors are permitted to vote”  (R. 74).

2 The applicability of the Classic case to the primary in Texas has been 
well set out in 20 North Carolina Law Review, 96 (1941) as follows:

“ This recognition o f the political potency o f the primary in one party 
states undermines the status o f the notorious Texas racial discrimination 
case. In Texas the political party is not supported by state funds or con­
nected with state control. Grovey v. Townsend, 295 IT. S. 45, 55 Sup. Ct. 
622, 79 L. ed. 1292 (1935) therefore found the party to be a purely private 
organization and, as such, able to prescribe any qualifications it deemed 
expedient for membership or participation in the primary. The Democratic 
party in Texas found it advisable to permit only white voters to take part 
in the primary. Since the Fourteenth and Fifteenth Amendments pro­
hibiting racial discrimination do not apply to the acts o f purely private 
individuals or organizations the Grovey case allowed this arbitrary exclu­
sion of Negroes. Though the Texas primary has not been constituted an 
integral part o f the election by law, its practical effect is the same as in 
Louisiana. In Texas the Democratic nomination is always tantamount to 
election. Unfortunately, the terrific practical significance o f the primary 
failed to influence the decision. As a result the Negro was almost completely 
disfranchised in Texas. The instant case considers such a primary of 
sufficient public importance to warrant its subjection to federal control, 
even though it is not conducted in connection with state laws. With proper 
application o f this decision the Texas Negro will get his vote back, at 
least in federal elections. Notes (1932) 48 Col. L. Rev. 106 (1935) o f Chi. 
L. Rev. 640, (1935) 48 Harv. L. Rev. 1436, (1935) 33 Mich. L. Rev. 935, 
(1935) 22 Va. L. Rev. 91.”



25

Article 2955 of tlie Revised Statutes of Texas provides 
the same qualifications for both primary and general elec­
tions. Briscoe v. Boyle, 286 S. W. 275 (1926); Tucker v. 
Bagby, 52 S. W. (2d) 801 (1932). It is admitted that the 
appellant is a qualified elector of the State of Texas (R. 
71, 81).

Since 1905, all candidates for United States Senators, 
Congressmen and state offices to be nominated by political 
parties that cast more than 100,000 votes must be nom­
inated in the statutory primary elections (Articles 3089, 
3090 and 3101 of the Revised Statutes of Texas).

It is likewise provided that no name shall appear on the 
official ballot in the general election except that of a can­
didate actually nominated (either as a party nominee or 
as an independent) in accordance with the election laws 
of Texas (Article 2978 of Revised Statutes of Texas). Al­
though it is possible for one whose name was not on a 
primary ballot to become an independent candidate by 
filing nomination papers with the requisite number of sig­
natures, all persons who voted in the primary are pre­
cluded from signing these nomination papers (Articles 
3159-3160).

Everyone defeated in a primary for the selection of 
candidates for U. S. Senator is precluded from seeking 
nomination as an independent or non-partisan candidate 
in opposition to the candidate selected in the Primary 
(Article 3096).

The time for holding of primaries is fixed by statute 
(Article 2930). Rules for absentee voting are the same 
for both primary and general elections (Article 2956). Only 
official ballots may be used following the form prescribed 
by statute (Articles 2978, 3109, 3110). Article 3109 also



26

sets forth the method to be used for marking ballots and 
gives the number of ballots to be used. Election officials 
take the same oath of office as when conducting the general 
elections (Article 3104). The usual custom is to use the 
same election officials for all elections (R. 74).

Article 3122 of the Revised Statutes of Texas provides:

“ * * * the same precautions required by law to 
secure the purity of the ballot box in general elec­
tion, in regard to the ballot boxes locking the ballot 
boxes, sealing the same, watchful care of the secrecy 
in preparing the ballot in the booth or places pre­
pared for voting shall be observed in all primary 
elections.”

The ballot boxes and ballots must then be deposited with 
the County Clerk (Article 3128).

Expenses of Primary That Are Paid by State of Texas

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 January 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 
Judge and Associate Judge of Primary Elections, to be 
used by them in determining the qualifications of voters 
in said primary election. The expenses for the listing of 
qualified electors and the furnishing of these lists in the 
primary elections are paid for by the State of Texas and 
Harris County:

“ The tax collector shall be paid fifteen cents for 
each poll tax receipt and certificate of exemption



27

issued by him to be paid pro rata by the State and 
County in proportion to the amount of poll tax re­
ceived by each, which amount shall include his com­
pensation for administering oaths, furnishing lists 
of qualified voters in election precincts for use in 
all general and primary elections and primary con­
ventions where desired. * * *”  (Article 2994.)

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

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

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

Expenses of Primary That Are Paid by Candidates

Pursuant to Article 3158 of the Revised Statutes of 
Texas, the executive committees of the several county 
political parties are authorized to collect from the candi­
dates their pro rata share of expenses for primary elec­
tions. Thus it is clear that, with the exception of the serv­
ices performed by the county tax assessors, county clerks, 
county judge and Secretary of State, the other expenses 
are not paid by the State of Texas nor by the Democratic



28

Party. As a matter of fact, these expenses are paid by the 
candidates themselves (R. 76).

These funds are collected solely by virtue of the statutes 
of Texas, must be considered as a trust fund, do not be­
long to the Democratic Party or any division thereof, and 
cannot be used for any purpose other than for the pay­
ment of certain expenses incidental to the primaries. In 
the case of Kauffman et al. v. Parker, 99 S. W. (2nd) 1074 
(1936), the plaintiffs were candidates for office in the demo­
cratic primary elections in Texas. The defendants were 
county chairmen of executive committees. The candidates 
wei'e assessed certain sums of money for the primary elec­
tion. The total assessment was not used for the primary 
election. The defendants proposed to divide the balance be­
tween themselves as chairman of the executive committees 
and the secretary of the committee, for services rendered; 
and $1,000 of it was set aside for use in conducting the af­
fairs of the Democratic Party until the next primary elec­
tion. The plaintiffs filed an action for mandamus and an 
injunction. It was held that the surplus belonged to the 
donors. In the majority opinion it was stated:

“ The money when collected and placed in the hands 
of appellants became a trust fund, and could only 
be disbursed and paid out as provided by statute; 
certainly it could not be spent by the chairman of 
the executive committee, these applicants, for sal­
aries and services performed by the chairman, nor 
could it be spent for unnecessary expenses, but must 
be spent for the purpose intended by the statute and 
under the provisions of the statutes authorizing such 
expenditures.”

See also:
Small v. Parker, 119 S. W. (2) 609 (1939).



29

(2 )  The Dem ocratic Primary in Texas is the only stage o f  
the election procedure at which the choice o f the voters 
is o f significance.

The only state-wide primaries being held in Texas are 
for Democratic nominees (R. 72). Since 1859 all Demo­
cratic nominees, for U. S. Congress and governor, have 
been elected in Texas, with tivo exceptions (R. 72). The 
full import of this is made clearer upon consideration of 
the fact that during this period twro 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 is tantamount to 
election.

The Texas Court of Civil Appeals has pointed out that 
it was “ a matter of common knowledge in this state 
(Texas) that a Democratic primary election, held in ac­
cordance with our statutes, is virtually decisive of the 
question as to who shall be elected at the general election. 
In other words, barring certain exceptions, a primary elec­
tion is equivalent to a general election.”  State v. Meharg, 
287 S. W. 670, 672 (1926).3

3 One o f the major reasons for the development o f the primary election was 
that in “ the South, where nomination by the dominant party meant election, 
it was obvious that the will o f the electorate would not be expressed at all, unless 
it was expressed at the primary.’ ’ Charles Evans Hughes, The Fate of the 
Direct Primary, 10 National Municipal Review 23, 24.

See also: Hasbrouck, Party Government in the Souse of Representatives
(1927) , 172, 176, 177. See also Merriam and Overacker, Primary Elections
(1928) , 267-269.

On the great decrease in the vote cast in the general election from that 
east 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 election. In the 1938 Texas primaries, 34.5% o f the 
adults voted, while in the general election the figure dwindled to 15%.



30

It should also be pointed out that in Texas the 
Democratic primary is not a “ party affair.”  At these 
Democratic primary elections all white persons who are 
qualified electors are permitted to vote in the Democratic 
primary regardless of what political party they might 
belong to (R. 106). It is, therefore, quite clear that the 
Democratic primary election is not restricted to members 
of the Democratic Party. The only qualified electors who 
are excluded from voting in the Democratic primary are 
Negroes and the exclusion is solely on the basis of race 
and color.

As in Louisiana, no person who participates in the 
primary election of one political party may participate in 
the primary election of any other political party with the 
view of nominating opposing candidates, nor is he per­
mitted to sign any petition in favor of another’s nomina­
tion (Articles 3159-3160). A defeated candidate for nomi­
nation to the office of United States Senator at the Demo­
cratic primary is precluded from seeking nomination 
either as an independent or non-partisan candidate (Article 
3096).

The Democratic Primary election controls not only the 
nominating end of the election, but controls the general 
election, for, the Supreme Court of Texas, in the case of 
Brown, et al. v. Borden, 50 S. W. (2) 261, held that, a 
Congressman at Large, could not have her name placed on 
the ballot at the general election, unless she received and 
secured a majority of all votes cast at the primary for all 
candidates for the office of Congressman at Large.

It is therefore clear that the Democratic Primary elec­
tion in Texas is the only stage of the election machinery 
where appellant’s vote would have any significance in the 
choice of members of the United States House of Repre­
sentatives and United States Senate.



31

After consideration of the election statutes of Louisiana, 
which statutes are closely similar to the corresponding 
statutes of Texas, and the fact that the Democratic Primary 
in Louisiana as in Texas is determinative of the general 
election, the United States Supreme Court in the Classic 
case concluded that:

“ * * * The words of sections 2 and 4 of Article I, 
read in the sense which is plainly permissible and in 
the light of the constitutional purpose, require us to 
hold that a primary election which involves a neces­
sary step in the choice of candidates for election as 
representatives in Congress, and which in the cir­
cumstances of this case controls that choice, is an 
election within the meaning of the constitutional pro­
vision and is subject to congressional regulation as 
to the manner of holding it”  (U. S. v. Classic, supra, 
at p. 320).

When we apply the rule as established in the “ Classic 
case”  it is obvious that the refusal to permit a qualified 
Negro elector to vote in the Democratic Primary in Texas 
is a denial of a right secured by Article I, sections 2 and 4 
and the Seventeenth Amendment of the United States 
Constitution.

The District Judge, however, used the former case of 
Grovey v. Townsend, 295 U. S. 45, in arriving at the con­
clusion that the action of the appellees not only did not 
violate the Fourteenth Amendment but likewise did not 
violate either Article I or Amendment Seventeen of the 
United States Constitution (R. 83-85). The Grovey case 
was decided solely upon the Fourteenth Amendment. The 
instant case is based not only on the Fourteenth Amend­
ment but also upon Article I, the Fifteenth Amendment and 
the Seventeenth Amendment of the United States Con­



32

stitution along with sections 31 and 43 of Title 8 of the 
United States Code, none of which constitutional amend­
ments or statutes were involved in the Grovey case. The 
use by the District Judge of the position in the Grovey case 
as follows, “ I, therefore, follow Grovey v. Townsend, and 
render judgment for defendants”  (E. 85), was clearly an 
error:

“ The doctrine of res judicata demands that a 
decision made by the highest court, whether it be 
a determination of a fact or a declaration of a rule 
of law, shall be accepted as a final disposition of the 
particular controversy, even if confessedly wrong. 
But the decision of the Court, if, in essence, merely 
the determination of fact, is not entitled, in later 
controversies between other parties, to that sanction 
which, under the policy of stare decisis, is accorded 
to the decision of a proposition purely of law. For 
not only may the decision of the fact have been 
rendered upon an inadequate presentation of then 
existing conditions, but the conditions may have 
changed meanwhile. * * (B randeis, J., dis­
senting in Burnet v. Coronado Oil & Gas Co., 285 
U. S. 393, 412 [1932].)

The Classic case recognized the principle that Article I 
of the Constitution secured rights which unlike those guar­
anteed by the Fourteenth and Fifteenth Amendments were 
secured against action by individuals as well as by actions 
by “ state officers”  or by individuals “ under color of state 
authority.”  (See U. S', v. Classic, supra, at p. 315.)

So that so far as Article I and Amendment Seventeen 
are concerned the theory in the case of Grovey v. Townsend 
(supra), as to the question of “ state officers”  is immaterial.



33
t

B. The right to vote for federal officers in a Democratic 
Primary in Texas is secured and protected by the F if­
teenth Amendment o f the United States Constitution.

The right of a qualified elector not to be discriminated 
against because of race or color is secured and protected by 
the Fifteenth Amendment of the United States Constitu­
tion which provides: “ The right of citizens of the United 
States to vote shall not be denied or abridged by the United 
States or by any state on account of race, color, or previous 
condition of servitude.”  It is admitted in the instant case 
that the refusal to permit appellant and other qualified 
Negro electors to vote in the Democratic Primary was 
“ because of his race and color”  (R. 73).

A comparison of the election laws of the states of 
Louisiana and Texas reveals that the election officials in 
Texas performed their duties on much the same basis as 
the primary election officials in Louisiana (see Appendix 
B). The majority opinion in the Classic case concluded 
that the actions of the election officials in Louisiana in fail­
ing to count the votes of qualified electors in the Democratic 
Primary in that State was not only a violation of Article I 
of the United States Constitution, but likewise was “ under 
color o f”  state law.4

Applying the above rule as established by the Classic 
case to the instant case, it is clear that the appellees herein

4 ‘ ‘ The right o f the voters at the primary to have their votes counted is, 
as we have stated, a right or privilege secured by the Constitution, and to this 
section 20 also gives protection. The alleged acts o f appellees were committed 
in the course o f their performance o f duties under the Louisiana statute requir­
ing them to count the ballots, to record the result o f the count, and to certify 
the result o f the election. Misuse o f power, possessed by virtue o f state law 
and made possible only because the wrongdoer is clothed with the authority o f 
state law, is action taken ‘ under color o f ’ state law. Ex parte Virginia, 100 
U. S. 339, 346; Home Telephone 4'  Telegraph Co. v. Los Angeles, 227 TJ. 8. 
278, 287, et seq.; Hague v. C. I. 0., 307 U. S. 496, 507, 519; cf. 101 F. (2d) 
774, 790. ”  ( U. S. v. Classic, supra, at p. 325.)



34

appointed pursuant to the election laws of the State of 
Texas while conducting the Democratic Primary in 1940 
were acting “ under color o f”  state law. While acting in 
this capacity by virtue of state statute and refusal to per­
mit appellant and other qualified Negroes to vote in this 
Democratic Primary election was a denial to them of a 
right secured by the Fifteenth Amendment of the Constitu­
tion.

In the first case involving Democratic Primary elections, 
Nixon v. Herndon, 273 U. S. 536, Mr. Justice H olmes in 
construing the Fifteenth Amendment as applied to primary 
elections concluded that: “ * * * I f defendants’ 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 Constitutional provision speaks neither of general 
nor of primary elections. The language used is “ to vote.”  
I f the machinery involves two elections, primary and gen­
eral, rather than one, the “ right to vote”  must include 
both steps.

But we do not rest alone on the legal nature of the 
primary; as a matter of fact, the Democratic Primary in 
Texas is decisive of the election of Congressmen and Sena­
tors. Interference with the right to vote in the primary 
deprives the voter of an opportunity to vote at the only 
stage in the process when the expression is of genuine 
significance. The Constitution is concerned with realities, 
not with forms; and it necessarily applies to the decisive 
phase of the process by which Congressmen and Senators 
are chosen.



Since the adoption of the Fifteenth Amendment there 
has never been any doubt as to the “ right to vote”  in 
“ general”  elections and the fact that Negroes could not be 
barred from voting because of their race or color. See: 
Ex parte Yarbrough, 110 U. S. 651; U. S. v. Moseley, 238 
U. S. 383.

Likewise there has never been any doubt that Negroes 
could not be prevented from qualifying “ to vote”  because 
of their color. See: Guinn v. United States, 238 U. S. 347; 
Myers v. Anderson, 238 U. S. 368.

After these decisions the State of Oklahoma passed a 
statute which attempted a further subterfuge to prevent 
Negroes from qualifying to vote. The United States 
Supreme Court in the case of Lane v. Wilson, 307 U. S. 
268 (1939), held that this statute was likewise a violation 
of the Fifteenth Amendment. Mr. Justice F rankfurter, 
speaking for the majority of the Court, stated:

“ * * * The Amendment nullified sophisticated as 
well as simple minded modes of discrimination. It 
hits onerus procedural requirements which effec­
tively handicap exercise of the Franchise by the 
colored race although the abstract right to vote may 
remain unrestricted as to race * * *”

Following the decision in the Classic case there can be 
no doubt at this time that the right to vote in the primary 
in Texas is within the meaning of the Fifteenth Amend­
ment.



3 6

C. The right to vote for federal officers in a Democratic 
Primary in Texas is also secured and protected by the 
Fourteenth Amendment o f the United States Constitu­
tion.

The Fourteenth Amendment to the United States Con­
stitution provides that “  * * * No state shall * * * deny 
to any person within its jurisdiction the equal protection 
of the laws.”

The United States Supreme Court in one of the early 
cases involving this Amendment held that:

“ The Fourteenth Amendment makes no attempt 
to enumerate the rights it was designed to protect. 
It speaks of general terms and those are as compre­
hensive as possible. Its language is prohibitory; but 
every prohibition implies the existence of rights and 
immunities, prominent among which is an immunity 
from inequality of legal protection, either for life, 
liberty, or property. Any state action that denies 
this immunity to a colored man is in conflict with the 
Constitution.”  (Strauder v. West Virginia, 100
U. S. 303, 310.)

The appellees in this case in refusing appellant the 
right to vote in the 1940 Texas primary election were state 
officers exercising state power in connection with a func­
tion of the State of Texas. Their action under color of 
their office was under color of state authority within the 
meaning of the Fourteenth Amendment. “ State action”  
was clearly defined by the United States Supreme Court 
in the year 1879 in the case of Ex parte Virginia where it 
was stated:

“  * * * it is these which Congress is empowered 
to enforce, and to enforce against State action, how­



37

ever put forth, whether against that action be execu­
tive, legislative or judicial * * *”

‘ ‘ We have said the prohibitions of the Fourteenth 
amendment are addressed to the States. They are, 
‘ No State shall make or enforce a law which shall 
abridge the privileges or immunities of citizens of 
the United States, * * * Nor deny to any person 
within its jurisdiction the equal protection of the 
laws.’ They have reference to actions of the politi­
cal body denominated a State, by whatever instru­
ments or in whatever modes that action may be 
taken. A State acts by its legislative, its executive 
or its judicial authorities. It can act in no other 
way. The constitutional provision, therefore, must 
mean that no agency of the State or of the officers 
or agents by whom its powrers are exerted, sliall deny 
to any person within its jurisdiction the equal pro­
tection of the laws. Whoever, by virtue of public 
position under a State government, deprives another 
of property, life, or liberty, without due process of 
lawr, or denies or takes away the equal protection of 
the laws, violates the constitutional inhibition; and 
as he acts in the name and for the State, and is 
clothed with the State’s power, his act is that of the 
State. This must be so, or the constitutional prohibi­
tion has no meaning. Then the State has clothed one 
of its agents with power to annul or to evade it.” 5

Since the Classic case there can be no doubt that the 
actions of the election officials in the primary election in 
Texas are just as much “ under color o f ”  state law as the 
actions of the election officials in Louisiana. In view of 
this fact it is clear that the action of the appellees herein 
is in direct violation of the Fourteenth Amendment despite 
the ruling in the Grovcy case which was made prior to the 
ruling in the Classic case. Before the decision in the

5 See also: Iowa-Des Moines Bantc v. Bennett, 284 U. S. 239 245-246- 
Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 343; Mosher v. City of Phoenix, 
287 U. S. 29; Chicago, Burlington By. v. Chicago, 166 U. S. 226, 233-234.



38

Grovey case and immediately thereafter several of the lead­
ing Law Reviews strongly criticized the reasoning in the 
case.6

6 ‘ ‘ The weight o f argument would seem to sustain the extension of 
the Fifteenth Amendment to the Primary. It is common knowledge that 
this amendment originated in the intention to block evasions o f the Four­
teenth. It would be inconsistent, therefore, to extend the Fourteenth 
further than the Fifteenth in the protection o f voting. As the Fifteenth 
Amendment makes no reference to ‘ elections,’ and as the right to vote 
at primaries is as substantial as the right to vote at elections (admitted 
in Nixon v. Herndon), it would seem to require an unreasonably 
restrictive interpretation to exclude primaries from its protection.”  
(32 Michigan Law Review, 451, 463 (1934).)

The Harvard Law Review in Commenting on this decision stated:
‘ ‘ The Court here relied on a Texas decision that the Democratic party 

was a voluntary organization and so might exclude Negroes. Bell v. Hill, 
74 S. W. (2 ) 113 (Tex. 1934); cf. Waples v. Marrast, 108 Tex. 5, 184 
S. W. 180 (1916). But prior Texas decisions, which have been expressly 
approved, did not allow a party to determine its membership when stat­
utes provided otherwise. Love v. Wilcox, 119 Tex. 256, 28 S. W. (2) 
515 (1930) ; Briscoe v. Boyle, 286 S. W. 275 (Tex. Civ. App. 1926). 
And statutory regulation has so hedged in political parties and pri­
maries that they virtually perform a public function. Tex. Asn. Civ. Stat. 
(Vernon, 1925), arts. 3100-53, 3167; Notes (1933), 46 Harv. L. Rev. 
812 (1933), 21 Calis. L. Rev. 240. And the Amendments have been held 
to prohibit discriminatory action exercised in pursuance o f any authority 
conferred by the State, even though in excess or violation o f such author­
ity. Home Tel. and Tel. Co. v. Los Angeles, 227 U. S. 278 (1913) ; 
Harris v. Alabama, 55 Sup. Ct. 579 (1935). Furthermore, it seems that 
judicial notice should have been taken of the fact that this was a con­
gressional primary and that Texas Democratic Primaries are tantamount 
to an election. See P h illips , C. J., dissenting, in Koy v. Sliaieder, 110 
Tex. 369, 391, 218 S. W. 479, 487 (1920); Note (1933), 46 Harv. L. 
Rev. 812, 815, n. 16; cf. W hite , C. J., and P itn ey , J., in Newberry v. 
United States, 256 U. S. 232, 267, 285, 286 (1921). And the right to 
vote in congressional elections may not arbitrarily be impaired. Swafford 
v. Templeton, 185 U. S. 487 (1902); cf. Ex parte Yarbrough, 110 U. S. 
651 (1884). Therefore, the Court might well have refused to apply the 
local test where a Federal election was involved. Cf. Seabury v. Green, 
55 Sup. Ct. 373 (1935). Moreover, since it seems that the officers con­
ducting the primaries were performing a governmental function, the Court 
apparently was reluctant to extend the Fifteenth Amendment beyond 
the limitation placed on the ‘ election’ clause. Newberry v. United States, 
256 U. S. 232. But see Evans, Primary elections and the Constitution 
(1934), 32 Mich. L. Rev. 431, 476-77.”  (48 Harvard Law Review 1436,
1437 (1935).)

The University of Chicago Law Review stated:
‘ ‘ In a state where selection in a primary is usually tantamount to 

actual election, the privilege to vote in a primary seems to be sufficiently 
connected with the election o f state officials; so that any exclusion by a 
primary official from the primaries might be considered state action. * * * 
Furthermore the Texas Legislature has so surrounded The Primary Elec­
tion with restrictions as to cause the Texas Supreme Court to say in a



39

In view of the Classic case it is now apparent that the 
Grovey case can no longer be considered a legal bar to a 
decision holding that the action of the appellees herein 
amounted to a violation of the Fourteenth Amendment.

II

The action of the appellees in refusing to permit 
appellant to vote in the 1940 Texas Democratic Pri­
mary made them liable to appellant in damages under 
the provisions of Sections 31 and 43 of Title 8 of the 
United States Code.

Section 31 of Title 8 provides,
“ Race, color, or previous condition not to affect 

right to vote.

previous ease that ‘ the legislature has assumed control o f that subject 
to the exclusion o f party action.’ Brisco v. Boyle, 286 S. W. 275 (Tex., 
1926). And we may well find state action where there is almost complete 
state control. See White v. County Dem. Ex. Comm., 60 F. (2 ) 279 
(S. D. Tex., 1932); 1 Univ. Chic. L. Rev. U 2 (1932); see also Tex. Rev. 
Civ. State. (1925), Arts., 2935-3041; but see 5 Tex. Law Rev. 393, 399 
(1927), where it is pointed out that state regulation in many fields is 
not necessarily State action. It has sometimes been urged that a pri­
mary represents state action provided state funds are used to pay primary 
officials and evidently no state funds are used in Texas. Whites v. 
Lubbock, 30 S. W. (2 ) 722 (Tex., 1930). Moreover the position taken 
by the Court in the present case makes it somewhat difficult to understand 
the previous decision in Nixon v. Condon, 286 U. S. 73 (1932), where 
the delegation to the executive committee o f the convention o f power to 
exclude was held bad. It is not at all clear that the committee would 
not have had this power in the absence o f legislation, and it seems more 
than likely that the legislature did not intend to delegate power so much 
as to return power to the place where it was before the legislature 
entered the field with its own requirements. See 5 Tex. Law Rev. 393, 
400 (1927). The complete failure to discuss the application o f the 
Fifteenth Amendment in the present case also seems questionable in as 
much as its application was expressly held open by Justice H olmes in 
the Herndon case and was again reserved in the Condon case. It is 
true that the Court in Newberry v. U. S., 256 U. S. 232 (1921), indirectly 
held that a primary is not an election under Art. 1 jf4 of the Federal 
Constitution, and thus, perhaps, it may be assumed that the right to vote 
under the Fifteenth Amendment would not include the right to vote in a 
primary. But, the authority o f the Newberry case has been considerably 
shaken. Borroughs v. United States, 290 U. S. 534 (1934); 1 Univ. Chi. 
L. Rev. 636 (1934). And no definition of the right to vote under the 
Fifteenth Amendment has been given. See Hodge v. Bryan, 149 Ky. 110, 
148 S. W. 21; Chandler v. Neff, 298 Fed. 515 (W . D. Tex., 1929).”  
(2 University o f Chicago Law Review 640, 642 (1935).)



40

“ All citizens of the United States who are other­
wise qualified by law to vote at any election by the 
people in any State, Territory, district, county, city, 
parish, township, school district, municipality, or 
other territorial subdivision, shall be entitled and 
allowed to vote at all such elections, without dis­
tinction of race, color, or previous condition of servi­
tude; any constitution, law, custom, usage, or regu­
lation of any State or Territory, or by or under its 
authority, to the contrary notwithstanding. R. S. 
sec. 2004.”

and Section 43 of Title 8 provides,
“ Civil action for deprivation of rights.
“ Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any State 
or Territory, subjects, or causes to be subjected, any 
citizen of the United States or other person within 
the jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by the Con­
stitution and law’s, shall be liable to the party in­
jured in an action at law’, suit in equity, or other 
proper proceeding for redress. R. S. sec. 1979.”

H. R. 1293, 41st Congress, Second Session, which was 
later amended in the Senate and w’hich includes Sections 
31 and 43 of Title 8, was originally entitled, “ A bill to 
enforce the right of citizens of the United States to vote 
in the several States of this Union who have hitherto been 
denied that right on account of race, color or previous con­
dition of servitude.”  When the bill came to the Senate its 
title was amended and adopted to read, “ A  bill to enforce 
the right of citizens of the United States to vote in the 
several States of this Union and for other purposes.”

The language of Section 31 is so clear as to leave no 
doubt as to its purpose. Section 43 of Title 8 has been



41

used repeatedly to enforce the right of citizens to vote. See 
Myers v. Anderson (supra); Lane v. Wilson (supra). In 
the Classic case Mr. Chief Justice Stone (then Mr. Asso­
ciate Justice Stone) held that the case was controlled by 
Section 20 of the United States Criminal Code, concluding 
that,

“ So interpreted section 20 applies to deprivation 
of the constitutional rights of qualified voters to 
choose representatives in Congress. The generality 
of the section made applicable as it is to depriva­
tions of any constitutional right, does not obscure 
its meaning or impair its force within the scope of 
its application, which is restricted by its terms to 
deprivations which are willfully inflicted by those 
acting under color of any law, statute and the like.”

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

S ec. 43 of T itle 8

“ Every person who, un­
der color of any statute, 
ordinance, regulation, cus­
tom, or usage, of any State 
or Territory, subjects, or 
causes to be subjected, any 
citizen of the United States 
or other person within the 
jurisdiction thereof to the 
deprivation of any rights, 
privileges, or immunities se­
cured by the Constitution 
and laws, shall be liable to 
the party injured in an ac-

Sec. 52 of Criminal Code

“ Whoever, under color of 
any law, statute, ordinance, 
regulation, or custom, will­
fully subjects, or causes to 
be subjected, any inhabitant 
of any State, Territory, or 
District to the deprivation 
of any rights, privileges, or 
immunities secured or pro­
tected by the Constitution 
and laws of the United 
States, or to different pun­
ishments, pains, or penalties, 
on account of such inhabi-



42

tion at law, suit in equity, tant being an alien, or by 
or other proper proceeding reason of his color, or race, 
for redress. R. S. Sec. 1979.”  than are prescribed for the

punishment of citizens, shall 
be fined not more than 
$1,000, or imprisoned not 
more than one year, or 
both.”  (R. S. Sec. 5510; 
Mar. 4, 1909, c. 321, sec. 20, 
35 Stat. 1092.)

To the same extent that the actions of the election 
officials of the Democratic Primary election in Louisiana 
violated Section 52 of the Criminal Code, the actions of 
the appellees herein give rise to an action for damages 
and an injunction under Section 43 of Title 8. This being 
true, appellant is also entitled to a declaratory judgment 
under Section 274D of the Judicial Code.7

Ill

The District Court erred in basing its conclusions 
of law on irrelevant matters admittedly outside the 
record of this proceeding.

The District Judge in his conclusions of law on the ques­
tion as to whether or not under the theory of the Classic 
case “ the choice of candidates at the Democratic Primary 
determines the choice of the elected representative”  
reached the following conclusion:

“ The main thing in this Record bearing on the 
question is this, quoted from the Stipulations:

7 An additional ground for jurisdiction in the instant case is Section 24 
(11) o f the Judicial Code, giving jurisdiction o f district courts for cases 
involving actions “  * * * to enforce the right o f citizens o f the United States 
to vote in the several states.”



43

“  ‘ Since 1859 all Democratic nominees, for Con­
gress, Senate and Governor, have been elected in 
Texas, with two exceptions.’

“ If this is historically correct, which I doubt, 
and if I may look outside the Record, then such 
Stipulation fails to take into account that many 
times during the period named, there was strong- 
opposition not only to the three Democratic nomi­
nees named but to other Democratic nominees, and 
that the Democratic nominees for President failed 
to carry Texas in 1928. I do not regard the Stipu­
lation quoted as meaning that the choice of candi­
dates at the Democratic Primary in Texas ‘ deter­
mines the choice of the elected representative.’ In 
politics ‘ you cannot always sometimes tell which to 
least expect the most.’ ”  (Italics ours.) (R. 84-85.)

In this conclusion of law the District Judge not only 
combined the conclusion with facts but used facts which he 
himself admitted to be outside the record and which facts 
he construed to be in conflict to the statement of facts 
in the record agreed to by both appellant and appellees to be 
the true facts.

It is a well known principle of jurisprudence that a trial 
judge is precluded from basing his final judgments and 
conclusions of law on facts outside the record.8

It is therefore respectfully submitted that the conclu­
sions of law in this case which formed the basis for the 
final judgment were based upon an error of the Trial Judge 
for which the only redress available to the appellant is a 
reversal of the said final judgment.

8 It is well settled that the decree must conform to the allegations of the 
parties and must be sustained by them as well as the proofs in the cause. See: 
Garrett, Administrator of Lewis v. L. $■  N. B. B. Co., 235 U. S. 308 (1914), and 
Sheldon 4~ Co. v. Hamburg Paclcetfahret et al., 28 F. (2nd) 249 (1928).



44

CONCLUSION

A  constitutional issue of great importance not only 
to the appellant herein but also to those on whose be­
half this action was brought is presented by this liti­
gation. It is therefore respectfully submitted that a 
reversal should be granted in this case for as long as 
justice remains the end of law such a decision as is 
here challenged cannot be consistent with law.

Respectfully submitted,

T hurgood Marshall,
New York,

W . J. Durham,
Sherman, Texas,

Attorneys for Appellant.
W illiam H. Hastie,

Washington, D. C.,

W . Robert Ming, Jr.,
Chicago, 111.,

George M. Johnson,
San Francisco, Calif.,

Leon A. Ransom,
Columbus, Ohio,

Carter W esley,
H. S. Davis, Jr.,

Houston, Texas,
Of Counsel.



45

APPENDIX A

Summary and Comparison of Provisions of Revised 
Statutes of Texas for Elections

Election Labeled “ Gen­
eral Election”  and 

H eld November 5,
1940

1. Held under compulsion 
of Article 2930 of Re­
vised Civil Statutes of 
Texas, 1925.

2. Date fixed by Article 
2930.

3. Article 2930 fixes time 
of day for bolding elec­
tion.

4. Article 2930 requires 
that all election officials 
shall be qualified voters.

5. Article 2933 fixes same 
qualifications for vot­
ing in this election as 
in “ statutory primary 
election. ’ ’

6. Article 2956 (Absentee 
Voting) is same for this 
election as for “ statu­
tory primary election.”

7. Article 2978 provides 
that only Official Bal­
lot shall be used.

8. Articles 2980-2941 pro­
vide form of ballot and 
how to mark ballot.

E lection Labeled ‘ * Pri­
mary E lection ’ ’ H eld 

July 27, 1940

1. Held under compulsion 
of Article 3101 of Re­
vised Civil Statutes of 
Texas, 1925.

2. Date fixed by Article 
3102.

3. Article 2930 fixes time 
of day for holding elec­
tion.

4. Article 2930 requires 
that all election officials 
shall be qualified voters.

5. Article 2955 fixes same 
qualifications for voting 
in this election as in 
election labeled “ gen­
eral election.”

6. Article 2956 (Absentee 
Voting) is the same for 
this election as for gen­
eral election.

7. Article 2978 provides 
that only Official Ballot 
shall be used.

8. Articles 3109, 3110 pro­
vided form and contents 
of ballot. Also, Art. 
3109 fixes method of 
marking ballot.



46

9. Article 2984 fixes the 
number of ballots to be 
provided.

10. Articles 2986, 2987, and 
2990 provide for voting 
booths, guard rails, and 
ballot boxes for this 
election.

11. Article 2998 fixes oath 
to be taken by officials 
in this election.

12. Power of judges fixed 
by Article 3002 as fol­
lows :

‘ ‘ J udges of election 
are authorized to ad­
minister oaths to ascer­
tain all facts necessary 
to a fair and impartial 
election. The presiding 
judge of election, while 
in the discharge of his 
duties as such, shall 
have the power of the 
district judge to en­
force order and keep 
the peace. He may ap­
point special peace offi­
cers to act as such dur­
ing the election and may 
issue warrants of ar­
rest for felony, misde­
meanor or breach of 
peace committed at such

9. Article 3109 fixes num­
ber of ballots to be pro­
vided.

10. Article 3120 provides 
that v o t i n g  booths, 
guard l-ails, and ballot 
boxes of “ general elec­
tion”  may be used in 
compulsory statutory 
primary election.

11. Article 3104 requires 
officials of this election 
to take same oath as 
officials of “ g e n e r a l  
election. ’ ’

12. Power of judges fixed 
by article 310; as fol­
lows :

“ Judges of primary 
elections have the au­
thority, and it shall be 
their duty to administer 
oaths, to preserve order 
at the election, to ap­
point, special observ­
ance of order and to 
make arrests, as judges 
of general elections are 
authorized and required 
to do. Such judges and 
officers shall compel the 
observance of the law 
that prohibits loitering 
or electioneering within 
one hundred feet of the 
entrance of the polling 
place, and shall arrest, 
or cause to be arrested,



47

election, directed to the 
sheriff or any constable 
of the county, of such 
special peace officer, who 
shall forthwith execute 
any such warrants, and, 
if so ordered by the 
presiding judge, confine 
the party arrested in 
jail during the election 
or until the day after 
the election, when his 
case may be examined 
into before some magis­
trate, to whom the pre­
siding judge shall re­
port it; but the party 
arrested shall first be 
permitted to vote, if en­
titled to do so unless he 
is drunk from the use 
of intoxicating liquor, 
then he shall not be per­
mitted to vote until he 
is sober.”

13. Articles 3003 to 3025 
contain elaborate pro­
visions for securing pu­
rity of the ballot box.

any one engaged in the 
work of c o n v e y i n g  
voters to the polls in 
carriages or other mode 
of conveyance, except 
as permitted by this 
title.”

13. Article 3122 provides: 
“ the same precau­

tions required by law to 
secure the purity of the 
ballot box in general 
election, in regard to the 
ballot boxes locking the 
ballot boxes, sealing the 
same, watchful care of 
the secrecy in preparing 
the ballot in the booth or 
places prepared for vot­
ing shall be observed in 
all primary elections.”



48

14. Article 3028 requires de­
livery of sealed ballot 
boxes containing bal­
lots, etc., to County 
Clerk after this elec­
tion.

15. Article 3041 provides 
for contest of this elec­
tion before district 
court.

14. Article 3128 requires de­
livery of sealed ballot 
boxes containing ballots, 
etc. to County Clerk 
after this election.

APPENDIX B

Comparative Table— Texas and Louisiana Constitu­
tional and Statutory Provisions Applicable 

to Primary Elections

(Note: This comparison is based upon the case of U. S. 
v. Classic and the specific statutory provisions relied upon 
there as showing the primary election to be an integral part
of the election machinery of the 

L ouisiana

1. All political p a r t i e s ,  
which are defined as 
those that have cast at 
least 5 per cent of the 
total vote at specified 
preceding elections, are 
required to nominate 
their candidates for rep­
resentatives by direct 
primary elections. (Lou­
isiana Act No. 46, Reg­
ular Session, 1940, Sec­
tions 1 and 3.)

2. The primary is con­
ducted by the state at

state.)

Texas

1. All political p a r t i e s ,  
which are defined as 
those that cast 1000 or 
more votes at the last 
general election, are re­
quired to nominate their 
candidates for repre­
sentatives, etc., in pri­
mary elections. (Ver­
non’s R e v i s e d  Civil 
Statutes (19 3 6), Art. 
3101.)

2. The primary is con­
ducted by an election



49

public expense. (Act No. 
46 supra, sec. 35.)

3. The ballots are printed 
at public expense (Sec. 
35 of Act No. 46, supra).

4. Are furnished by the 
Secretary of State (Sec. 
36).

5. In a form prescribed by 
statute (Sec. 37).

6. Close supervision of the 
delivery of the ballots 
to the election commis­
sioners is prescribed 
(secs. 43-46).

7. The polling places are 
required to be equipped 
to insure secrecy (Sec. 
48-50; secs. 54-57).

j u d g e  and associate 
e l e c t i o n  judge, ap­
pointed by the chair­
man of the c o u n t y  
executive committee of 
the party ( R e v i s e d  
Statute s u p r a ,  Art. 
3104), at the expense of 
the candidate for nomi­
nation at the various 
primary elections (Art. 
3108). '

3. The ballots are printed 
at the expense of the 
candidates (Art. 3108, 
supra).

4. Are furnished by the 
c o u n t y  committee in 
each county (Art. 3109)

5. In a form prescribed by 
statute (Art. 3109).

6. C l o s e  supervision of 
and responsibility for 
the delivery to the pre­
siding judge of the sup­
plies necessary to hold 
the e l e c t i o n  is pre­
scribed (Art. 3119).

7. “ The same precautions 
required by law to se­
cure the ballot box in 
general elections, in re­
gard to the ballot boxes, 
sealing the same, watch­
ful care of them, the 
secrecy in preparing the 
ballot in the booth or



50

8. The selection of elec­
tion commissioners is 
prescribed (Sec. 6).

9. And their duties de­
tailed.

10. The commissioners must 
swear to conduct the 
e l e c t i o n  impartially 
(sec. 64).

11. And are subject to pun­
ishment for deliberately 
falsifying the returns or 
destroying the lists and 
ballots.

12. They must identify by 
certificate the b a l l o t  
boxes used (sec. 67).

13. Keep a triplicate list of 
voters (sec. 68).

14. Publicly canvass the re­
turn (sec 74)

15. And certify the same to 
the Secretary of State 
(sec. 75).

16. The Secretary of State 
is prohibited from plac­
ing on the official ballot 
the name of any person

places prepared for vot­
ing shall be observed in 
all primary elections.”  
(Art. 3122)

8. The selection of the pre­
siding judge and other 
primary officials is pre­
scribed (Art. 3104.)

9. And their duties de­
tailed (Art. 3105).

10. The election judges are 
required to take the oath 
required of such offi­
cers in general elections 
(Art. 3104).

11.

12. They must identify by 
certificates the ballot 
boxes used (art. 3124).

13. Keep a triplicate list of 
voters (Art. 3124).

14. Returns canvassed by 
the c o u n t y  executive 
committee of the party 
(Art. 3124-3125).

15. And certify the same to 
the county clerk (Art. 
3125, 3127).

16. “ . . . No n a m e  shall 
appear on the official 
ballot except that of a 
candidate who was ac-



51

as a candidate for any 
political party not nomi­
nated in accordance with 
the provisions of the 
Act (Act 46, see. 1).

17. One whose name does 
not appear on the pri­
mary ballot, if otherwise 
eligible to b e c o m e  a 
candidate at the general 
election, may do so 
either of two ways: by 
filing nomination papers 
with the requisite num­
ber of signatures or by 
having his name “ writ­
ten in”  on the ballot 
of the final election. 
(Louisiana Act. No. 224, 
Regular Session 1940, 
sec. 50, 73.) “ No one 
who participates in the 
primary election, of any 
political p a r t y  shall 
have the right to par­
ticipate in a primary 
election of any political 
party with the view of 
nominating o p p o s i n g  
candidates or c a n d i- 
dates; nor shall he be 
permitted to be himself 
a candidate in opposi­
tion to anyone nomi­
nated at or through a 
primary e l e c t i o n  in 
which he took part.”  
(Sec. 87)

tually nominated (either 
as a party nominee or 
as a non-partisan or 
independent candidate) 
in accordance with the 
provisions of this title 
. . . ”  (Art. 2978).

17. One whose name does 
not appear on the pri­
mary ballot, if other­
wise eligible to become 
a candidate, may do so 
by securing and filing 
nomination papers with 
the requisite number of 
signatures, p r o v i d e d  
that one who has voted 
in a primary election in 
w h i c h  candidate was 
chosen for office may 
not sign petition in 
favor of a n o t h e r ’ s 
nomination to said office 
(Art. 3159-3160).
One who was defeated in 
a primary election which 
selected a candidate for 
U. S. Senator, may not 
seek nomination as an 
independent or non-par­
tisan candidate in oppo­
sition to the candidate 
selected in the primary 
(Art. 3096).



52

18. “ No person whose name 
is not authorized to be 
printed on the official 
ballot, as the nominee 
of a political party or 
as an independent candi­
date, shall be consid­
ered a candidate”  un­
less he shall file in the 
appropriate office at 
lease ten days, before 
the general election a 
statement containing the 
c o r r e c t  name under 
which he is to be voted 
for, and containing the 
further statement that 
he is willing and con­
sents to be voted for 
that office. (Sec. 15, 
Article VIII of the Con- 
s t i t u t i o n  of La. as 
amended by Art 80 of 
1934)

18. (See Art. 3159, supra) 
A citizen in whose favor 
an application is made 
for a place on the ballot 
as an independent can­
didate, “ shall first file 
his written consent with 
the Secretary of State”  
to become a candidate, 
within thirty days after 
primary election day 
(Art. 3161).

APPENDIX C

Constitution of the United States— 1787

A rticle I

Section 2.—The House of Representatives shall be com­
posed of Members chosen every second Year by the People 
of the several States, and the Electors in each State shall 
have the Qualifications requisite for Electors of the most 
numerous Branch of the State Legislature.



Section 4.— The Times, Places and Manner of holding 
Elections for Senators and Representatives, shall be pre­
scribed in each State by the Legislature thereof; but the 
Congress may at any time by Law make or alter such 
Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, 
and such Meeting shall be on the first Monday in December, 
unless they shall by Law appoint a different Day.

Amendment 14
Section 1.— * * * No State shall make or enforce any 

law which shall abridge the privileges or immunities of 
citizens of the United States; * * * nor deny to any person 
within its jurisdiction the equal protection of the laws.

Amendment 15
Section 1.—The right of citizens of the United States 

to vote shall not be denied or abridged by the United 
States or by any State on account of race, color, or pre­
vious condition of servitude.

Section 2.—The Congress shall have power to enforce 
this article by appropriate legislation.

Amendment 17
The Senate of the United States shall be composed of 

two Senators from each state, elected by the people thereof, 
for six years; and each Senator shall have one vote. The 
electors in each state shall have the qualifications requisite 
for electors of the most numerous branch of the state legis­
latures. ,

When vacancies happen in the representation of any 
state in the Senate, the executive authority of such state 
shall issue writs of election to fill such vacancies: Pro­
vided, that the legislature of any state may empower the



5 4

executive thereof to make temporary appointment until 
the people fill the vacancies by election as the legislature 
may direct.

This amendment shall not be so construed as to effect 
the election or term of any Senator chosen before it be­
comes valid as part of the Constitution.

U nited States Code

Title 8— Section 31—Race, color, or previous condition 
not to affect right to vote.

All citizens of the United States who are otherwise 
qualified by law to vote at any election by the people in 
any State, Territory, district, county, city, parish, town­
ship, school district, municipality, or other territorial sub­
division, shall be entitled and allowed to vote at all such 
elections, without distinction of race, color, or previous 
condition of servitude; any constitution, law, custom, usage, 
or regulation of any State or Territory, or by or under 
its authority, to the contrary notwithstanding. R. S. § 2004.

Section 43— Civil action for deprivation of rights.

Every person who, under color of any statute, ordinance, 
regulation, custom, or usage, of any State or Territory, 
subjects, or causes to be subjected, any citizen of the United 
States or other person within the jurisdiction thereof to the 
deprivation of any rights, privileges, or immunities se­
cured 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. § 1979.



APPENDIX D

Constitution of the State of Texas

ARTICLE VI

SlJFFERAGE

Section 1. The following classes of persons shall not 
be allowed to vote in this State, to-wit:

First: Persons under twenty-one (21) years of age.

Second: Idiots and lunatics.

Third: All paupers supported by any county.

Fourth: All persons convicted of any felony, subject 
to such exceptions as the Legislature may make.

F ifth : All soldiers, marines and seamen, employed in 
the service of the Army or Navy of the United States. Pro­
vided that this restriction shall not apply to officers of the 
National Guard of Texas, the National Guard Reserve, the 
Officers Reserve Corps of the United States, nor to enlisted 
men of the National Guard, the National Guard Reserve, 
and the Organized Reserves of the United States, nor to 
retired officers of the United States Army, Navy, and Ma­
rine Corps and retired warrant officers and retired en­
listed men of the United States Army, Navy, and Marine 
Corps.

Section 2. Every person subject to none of the fore­
going disqualifications, who shall have attained the age 
of twenty-one years and who shall have resided in this 
State one year next preceding an election and the last 
six months within the district or county in which such 
person offers to vote, shall be deemed a qualified elector;



provided, that electors living in any unorganized county 
may vote at any election precinct in the county to which 
such county is attached for judicial purposes; and pro­
vided further, that any voter who is subject to pay a 
poll tax under the laws of the State of Texas shall have 
paid said tax before offering to vote at any election in 
this State and hold a receipt showing that said poll tax 
was paid before the first day of February next preceding 
such election. Or if said voter shall have lost or mis­
placed said tax receipt, he or she, as the case may be, 
shall be entitled to vote upon making affidavit before any 
officer authorized to administer oaths that such tax receipt 
has been lost. Such affidavit shall be made in writing and 
left with the judge of the election. The husband may 
pay the poll tax of his wife and receive the receipt there­
for. In like manner the wife may pay the poll tax of her 
husband and receive the receipt therefor. The Legislature 
may authorize absentee voting. And this provision of the 
Constitution shall be self-enacting without the necessity 
of further legislation.

Section 3. All qualified electors of the State, as herein 
described, who shall have resided for six months immedi­
ately preceding an election, within the limits of any city or 
corporate town, shall have the right to vote for Mayor and 
all other elective officers; but in all elections to determine 
expenditure of money or assumption of debt, only those 
shall be qualified to vote who pay taxes on property in 
said city or incorporated town; provided, that no poll tax 
for the payment of debts thus incurred, shall be levied upon 
the persons debarred from voting in relation thereto.

Section 3a. When an election is held by any county, 
or any number of counties, or any political sub-division



of the State, or any political sub-division of a county, or 
any defined district now or hereafter to be described and 
defined within the State and which may or may not in­
clude towns, villages or municipal corporations, or any 
city, town or village, for the purpose of issuing bonds or 
otherwise lending credit, or expending money or assuming 
any debt, only qualified electors who own taxable property 
in the State, county, political sub-division, district, city, 
town or village where such election is held, and who have 
duly rendered the same for taxation, shall be qualified to 
vote and all electors shall vote in the election precinct of 
their residence.

Section 4. In all elections by the people the vote shall 
be ballot and the Legislature shall provide for the num­
bering of tickets and make such other regulations as may 
be necessary to detect and punish fraud and preserve the 
purity of the ballot box and the Legislature may pro­
vide by law for the registration of all voters in all cities 
containing a population of ten thousand inhabitants or 
more.

Section 5. Voters shall, in all cases, except treason, 
felony or breach of the peace, be privileged from arrest 
during their attendance at elections, and in going to and 
returning therefrom.

Texas Civil Statutes

A rticle 2954. Not qualified to vote.

The following classes of persons shall not be allowed 
to vote in this State.

1. Persons under twenty-one years of age.



58

2. Idiots and lunatics.

3. All paupers supported by the county.

4. All persons convicted of any felony, except those 
restored to full citizenship and right of sufferage, or par­
doned.

5. All soldiers, marines and seamen employed in the 
service of the army or navy of the United States. Acts. 1st 
C. S. 1905, p. 520.

A rticle 2955. Qualifications for voting.

Every person subject to none of the foregoing dis­
qualifications who shall have attained the age of twenty- 
one years and who shall he a citizen of the United States, 
and who shall have resided in this State one year next 
preceding an election, and the last six months within the 
district or county in which he or she offers to vote, shall be 
deemed a qualified elector. The electors living in an un­
organized county may vote at an election precinct in the 
county to which such county is attached for judicial pur­
poses ; provided that any voter who is subject to pay a poll 
tax under the laws of this State or ordinances of any city 
or towm in this State shall have paid said tax before offer­
ing to vote at any election in this State and holds a receipt 
showing that said poll tax was paid before the first day of 
February next preceding such election; and, if said voter 
is exempt from paying a poll tax and resides in a city of ten 
thousand inhabitants or more, he or she must procure a 
certificate showing his or her exemptions, as required by 
this title. I f such voter shall have lost or misplaced said 
tax receipt, he or she shall be entitled to vote upon making 
and leaving with the judge of the election an affidavit that



59

such tax was paid by him or her, or by his wife or by her 
husband before said first day of February next preceding 
such election at which he or she offers to vote, and that said 
receipt has been lost or misplaced. In any election held 
only in a subdivision of a county for the purpose of deter­
mining any local question or proposition affecting only 
such subdivision of the county, then in addition to the fore­
going qualifications, the voter must have resided in said 
county for six months next preceding such election. The 
provisions of this article as to casting ballots shall apply 
to all elections including general, special and primary 
elections.

A rticle 2956. Absentee voting.

Any qualified elector, as defined by the laws of this 
State, who expects to be absent from the county of his or 
her residence on the day of the election may vote subject to 
the following conditions, to w it: At some time not more 
than ten days nor less than three days prior to the date of 
such election such elector shall make his or her personal 
appearance before the county clerk of his or her residence, 
and if personally unknown to such clerk, shall be identified 
by at least two reputable citizens of such county, and shall 
deliver to such clerk his or her poll tax receipt or exemp­
tion certificate, entitling him or her to vote at such election, 
and said clerk shall deliver to such elector one ballot which 
has been prepared in accordance with the law for use in 
such election which shall then and there be marked by said 
elector apart and without the assistance or suggestion of 
any person and in such manner as said elector shall desire 
same to be voted, which ballot shall be folded and placed 
in a sealed envelope and delivered to said clerk who shall 
keep same so sealed, and who shall also keep said poll tax 
receipt or certificate open to the inspection of any person



CO

wlio may wish to examine or see same until the second 
day prior to said election, and said clerk shall on said 
second day place the said poll tax receipt or certificate to­
gether with the said envelope containing said marked ballot, 
in another envelope which shall be by said clerk then mailed 
to the presiding judge of the voting precinct in which said 
elector lives. Or at some time not more than twenty days 
nor less than ten days prior to the date of such election, 
such elector shall make his or her personal appearance 
before a notary public, and if personally unknown to such 
notary public, shall be identified by at least two reputable 
citizens, and shall deliver to such notary public his poll tax 
receipt or exemption certificate, entitling said elector to 
vote at such election, or if such elector shall have lost or 
misplaced his or her poll tax receipt, he or she shall 
he entitled to vote upon making affidavit that such poll tax 
was actually paid by him or her before said first day of 
February next preceding such election at which he or she 
offers to vote and that said receipt has been lost, or mis­
placed, and in such case the affidavit so made shall be sent 
by the officer administering the oath to the county clerk 
of the county in which such elector resides. Such county 
clerk receiving the affidavit shall verify same by examining 
the poll tax records of the county wherein said elector 
resides, or where he claims his residence to be. Said 
notary public shall mail same to the county clerk of the 
county of residence of such elector so named, and upon 
receipt of the poll tax receipt or exemption certificate, the 
county clerk shall mail to such elector one ballot which has 
been prepared in accordance with the law for use in such 
election under registered letter marked “ Official ballot for 
such elector (giving elector’s name) not to be opened 
except in the presence of a notary public,”  printed on out­
side of letter. Such elector shall make oath before such



61

notary public that such ballot was then and there marked 
by such elector apart and without assistance or sugges­
tion of any other person, in such manner as said elector 
shall desire same to be voted, which ballot shall be folded 
and placed in a sealed envelope together with such affi­
davit which shall be marked on the outside of said envelope 
“ Official ballot of such elector (giving elector’s name)”  
and mailed by sucb notary public to the county clerk of the 
county wherein such elector votes, who shall keep same so 
sealed, and who shall also keep said poll tax receipt or cer­
tificate open to the inspection of any person who may wish 
to examine or see same until the second day prior to said 
election, and said clerk shall on said day place the said poll 
tax receipt or certificate together with the said sealed en­
velope containing said marked ballot in another envelope 
which shall be by said clerk then mailed to the presiding 
judge of the voting precinct in which said elector lives. 
The postage for the entire correspondence herein made 
necessary shall be provided by said elector. In the pres­
ence of the election officers provided by law, and on the day 
of such election and between the hours of two and three 
o ’clock the said presiding judge of same in the precinct of 
the residence of said elector shall open the envelope con­
taining said poll tax receipts and marked ballots and 
publicly announce that the ballot of such named electors 
is proposed to be cast, at which time any person who desires 
to challenge said vote and the right of same to be cast, shall 
be heard to present such challenge, and if there be no chal­
lenge of same, said vote shall be cast and counted accord­
ing to the law; and if there be any challenge of such vote, 
legal cause for same shall be heard and decided according 
to the law provided in the case of challenge. In case no 
challenge is made, such poll tax receipt, after same is 
marked “ Voted” -as provided by law, shall be mailed back



62

to the said county clerk. But in case of challenge, if chal­
lenged, such poll tax receipt together with affidavits relat­
ing thereto shall be mailed by said judge of election to the 
county clerk of such county who shall keep same for thirty 
days and if no demand be made for the production of same 
before any body or persons in authority within said time, 
said county clerk shall deliver such receipt to the owners 
thereof. When voted, the judge of election shall mark 
opposite the name of such absentee voter the word “ Ab­
sentee” . The provisions of this article shall apply to all 
elections, including general, special and primary elections.

A rticle 2975. Lists of voters.

Before the first day of April every year, the county tax 
collector shall deliver to the board that is charged with the 
duty of furnishing election supplies separate certified lists 
of the citizens in each precinct who have paid their poll tax 
or received their certificates of exemption, the names being 
arranged in alphabetical order, and to each name its ap­
propriate number, as shown by the duplicates retained in 
his office, with a description of the voter as to his residence, 
his voting precinct, length of his residence in the State and 
county, his race, occupation and post-office address if not 
in a city of more than ten thousand inhabitants. I f  the 
county has any unorganized county or counties attached 
to it for judicial purposes, the tax collector shall also de­
liver to said board, before the first day of April of each 
year, as many certified lists of the electors resident in such 
unorganized county or counties, who have paid their poll 
tax or received the certificate of exemption as there are 
election precincts in his county; which lists shall be iden­
tical wfith those of poll tax payers in his own county, except 
that the voting precinct shall not be stated. The tax collector 
of any county containing a town or city of more than ten



6 3

thousand inhabitants shall also furnish to said board, not 
less than four days prior to any primary or general elec­
tion, supplemental lists in the form herein prescribed, of 
all poll tax paying voters who have, since paying their poll 
tax, removed to each voting precinct in each such city or 
town in the county from another county or in another 
precinct in the same county. Said board shall furnish each 
presiding judge of a precinct the certified list and supple­
mental list of the voters of his precinct at the time when he 
furnishes other election supplies. Such certified lists of 
qualified voters shall be in the following form:

Voters in Election Precinct.

No...................................................................................................

Name ...........................................................................................

Precinct.......................................................................................

A g e ...............................................................................................

Length of residence in State..................................................

Length of residence in county...................................................

Occupation .................................................................................

Race ................................................ ............................................

Length of residence in city and ward.....................................

Street and number of residence...............................................

Post-office address......................................................................

A rticle 2978. Official ballot.

In all elections by the people, the vote shall be by official 
ballot, which shall be numbered, and elections so guarded 
and conducted as to detect fraud and preserve the purity



6 4

of the ballot. No ballot shall be used in voting at any gen­
eral, primary or special election held to elect public officers, 
select candidates for office or determine questions sub­
mitted to a vote of the people, except the official ballot, un­
less otherwise authorized by law. At the top of the official 
ballot shall be printed in large letters the words “ Official 
Ballot.”  It shall contain the printed names of all candi­
dates whose nominations for an elective office have been 
duly made and properly certified. The names shall appear 
on the ballot under the head of the party that nominates 
them, except as otherwise provided by this title. No name 
shall appear on the official ballot except that of a candidate 
who was actually nominated (either as a party nominee or 
as a non-partisan or independent candidate) in accordance 
with the provisions of this title. The name of no candidate 
shall appear more than once upon the official ballot, except 
as a candidate for two or more offices permitted by the 
Constitution to be held by the same person. The name of 
no candidate of any political party tlxat cast one hundred 
thousand votes or more at the last preceding general elec­
tion shall be printed on any official ballot for a general 
election, unless nominated by primary election, on primary 
election day, except as herein otherwise provided.

A rt. 2979. [2968] Death or declination.-—If a nominee 
dies or declines his nomination, and the vacancy so created 
shall have been filled, and such facts shall have been duly 
certified in accordance with the provisions of this title, 
the Secretary of State or county judge, as the case may 
be, shall promptly notify the official board created by this 
law to furnish election supplies that such vacancy has oc­
curred and the name of the new nominee shall then be 
printed upon the official ballot, if the ballots are not al­
ready printed. If such declination or death occurs after



63

the ballots are printed, or due notice of the name of the 
new nominee is received after such printing, the official 
board charged with the duty of furnishing election supplies 
shall prepare as many pasters bearing the name of the new 
nominee as there are official ballots, which shall be pasted 
over the name of the former nominee on the official ballot 
before the presiding judge of the precinct indorses his 
name on the ballot for identification. No paster shall be 
used except as herein authorized, and if otherwise used 
the names pasted shall not be counted. [Id. sec. 50.]

A rt. 2980. [2969] Form of ballot.—All ballots shall be 
printed with black ink on clear white paper of uniform 
style and of sufficient thickness to prevent the marks thereon 
to be seen through the paper. The tickets of each political 
party shall be placed or printed on one ballot, arranged 
side by side in columns separated by a parallel rule. The 
space which shall contain the title of the office and the 
name of the candidate shall he of uniform style and type 
on said tickets. At the head of each ticket shall be printed 
the name of the party. When a party has not nominated 
a full ticket, the titles of those nominated shall be in posi­
tion opposite the same office in a full ticket, and the titles 
of the officers shall be printed in the corresponding posi­
tions in spaces where no nominations have been made. In 
the blank columns and independent columns, the titles of 
the offices shall be printed in all blank spaces to correspond 
with a full ticket. When presidential electors are to be 
voted on, their names shall appear at the heads of their re­
spective tickets. When Constitutional amendments or other 
propositions are to be voted on, the same shall appear once 
on each ballot in uniform style and type. [Id.]

A rt. 2981. How to mark ballot.— When a voter desii’es 
to vote a ticket straight, he shall run a pencil or pen through



Gfi

all other tickets on the official ballot, making a distinct 
marked line through such ticket not intended to be voted; 
and when he shall desire to vote a mixed ticket he shall do 
so by running a line through the names of such candidates 
as he shall desire to vote against in the ticket he is voting, 
and by writing the name of the candidate for wThom he de­
sires to vote in the blank column and in the space provided 
for such office; same to be written with black ink or pencil, 
unless the names of the candidates for which he desires to 
vote appear on the ballot, in which event he shall leave the 
same not scratched. [Id. sec. 53.]

A rt. 2982. [2971] Constitutional amendment and other 
questions.—When a proposed constitutional amendment or 
other question submitted by the Legislature is to be voted 
on, the form in which it is submitted, if the Legislature has 
failed to prescribe the same, shall be prescribed by the Gov­
ernor in his proclamation, describing the same in such terms 
as to give a clear idea of the scope and character of the 
amendment in question. When more than one proposed 
constitutional amendment or other question is submitted by 
the Legislature at one election, the Secretary of State shall 
give to each such proposition and question a separate num­
ber, and shall certify the same together with its separate 
number to the county clerk of each county in the State. 
The number given to each such proposition, question or 
proposed amendment shall be determined by lot. The Sec­
retary of State shall hold such drawing at a time and place 
designated by him and such drawing shall be open to the 
public. The propositions and questions so submitted shall 
be printed and numbered on the official ballot in the serial 
order in which they are numbered by the Secretary of 
State.



G7

The form in which any proposition or question to be 
voted on by the people of any city, county or other sub­
division of the State shall be submitted, shall be prescribed 
by the local or municipal authorities submitting it. [Acts 
1905, 1st C. S., p. 532, §54; Acts 1935, 44th Leg., p. 497, 
ch. 208, § 1.]

A rt. 2983. [2972] Form by local authorities.—At the 
election of school district officers or school officers for a 
city, town or village, at which no officer is to be elected, or 
election of officers of tire departments, any ballot may be 
used prescribed by local authorities. [Acts 1905, 1st C. S., 
p. 532, § 51.]

A rt. 2984. [2973-4] Ballots furnished.—For each voting 
precinct, there shall be furnished one and a half times as 
many official ballots as there are qualified voters in the 
precinct, as shown by the list required to be furnished by 
the tax collector to precinct judges. The official ballots to 
be counted before delivery and sealed up and together 
with the instruction cards, with poll lists, tally sheets, dis­
tance markers, returning blanks and stationery, shall be 
delivered to the precinct judges, and the number of each 
indorsed on the package, and entered of record by the 
county clerk in the minutes of the commissioners court. 
In like manner, shall be sent the list of qualified voters 
for the precinct certified to by the collector. [Id. secs. 44 
and 48.]

A rt. 2985. [2975] Voters 'provide form.— If, from any 
cause, the official ballots furnished for an election precinct 
have been exhausted or not delivered to the precinct judges, 
the voters may provide their own ballot after the style 
of the official ballot described in this title. [Id. sec. 47.]



68

Chapter 7.— A rrangements and E xpenses of Election 

A rt.

2986. Voting booths.

2987. Booths and guard rails.

2988. Open to view.

2989. When booth not required.

2990. Ballot boxes marked.

2991. Ballot boxes.

2992. Board to provide supplies.

2993. Judge to procure.

2994. Collector’s fees for poll taxes.

2995. Sheriff’s and constable’s fees.

2996. Expenses for election supplies.

2997. Municipal elections.

2997a. Voting machines.

A rt. 2986. [2976] Voting booths.—Voting booths shall 
be furnished and used at elections at each voting precinct 
in towns or cities of ten thousand inhabitants or more. 
[Acts 1st C. S. 1905, p. 529, sec. 37.]

A rt. 2987. [2977] Booths and guard rails.— There shall 
be one voting booth or place for every seventy citizens who 
reside in the voting precinct and who at the last general 
election paid their poll tax or obtained certificates of 
exemption from its payment, provided, the judges of the 
election may provide as many more booths and places as 
they deem necessary. Each polling place, whether pro­



69

vided with voting booths or not, shall be provided with a 
guard rail, so constructed and placed that only such per­
sons as are inside of such guard rail can approach the 
ballot boxes or compartments, places or booths at which 
the voters are to prepare their votes, and that no person 
outside of the guard rail can approach nearer than six 
feet of the place where the voter prepares his ballot. The 
arrangement shall be such that neither the ballot boxes 
nor the voting booths nor the voters while preparing 
their ballots shall be hidden from view of those out­
side the guard rail, or from the judges, and yet the 
same shall be far enough removed and so arranged 
that the voter may conveniently prepare his ballot for 
voting in secrecy. Where voting booths are required 
they shall have three sides closed and the front side 
open, shall be twenty-two inches wide on the inside, 
thirty-two inches deep and six feet four inches high, con­
tain a shelf for the convenience of the voter in preparing 
his ballot; and shall be so constructed with hinges that 
they can be folded up for storage when not in use. The 
voting booths shall be so arranged that there shall be no 
access to them through any doors, window or opening ex­
cept through the front of the booth; and the same care shall 
be observed in precincts where there are no booths in pro­
tecting the voter from intrusion while he is preparing his 
ballot. [Id. secs. 38 and 41.]

A kt. 2988. [2978] 0>pen to view.—All booths and voting 
places shall be properly lighted. Every guard rail shall 
be provided with a place for entrance and exit. The ar­
rangement of the polling place shall be such that the booths 
or places prepared for voting can only be reached by pass­
ing within the guard rail; and the booths, ballot boxes, elec­
tion officers and every part of the polling place, except



TO

the inside of the booths, shall be in plain view of the elec­
tion officers and persons outside the guard rail, among 
whom may be one challenger for each political party and 
no more. [Id. sec. 40.]

A rt. 2989. [2980] When booth not required.—When vot­
ing booths are not required, a guard rail shall be so 
placed that no one not authorized can approach nearer than 
six feet of the voter while he is preparing his ballot; and 
a shelf for writing shall be prepared for him, with black 
lead pencil, and so screened that no other person can see 
how he prepares his ballot. [Id. sec. 42.]

A rt. 2990. [2981] Ballot boxes marked.—For each elec­
tion precinct, there shall be provided four ballot boxes to 
be marked as follows: “ Ballot box No. 1 for election pre­
cinct N o .--------- ”  (giving name and number of precinct);
“ Ballot box No. 2 for election precinct N o .--------- “ Bal­
lot box No. 3 for election precinct No. --------- “ Ballot
box No. 4 for election precinct N o .--------- . ”  [Id. sec. 43.]

A rt. 2991. [2982] Ballot boxes.—All ballot boxes shall 
be securely made of metal or wood, provided with a top, 
hinges, lock and key, and an opening shall be made at the 
top of each just large enough to receive a ballot when 
polled.

A rt. 2992. [2983] Board to provide supplies.—The 
county judge, county clerk and sheriff shall constitute a 
board, a majority of whom may act, to provide the supplies 
necessary to hold and conduct the election, all of which shall 
be delivered to the presiding judges of the election by the 
sheriff or any constable of the county, when not called 
for and obtained in person by the precinct judges. Said



71

board shall file with the commissioners court a written 
report of their action as to supplies furnished by the county, 
giving a detailed statement of the expenses incurred in pro­
curing such supplies. [Id. secs. 38 and 39.]

A kt. 2993. [2984] Judge to procure.—If, from any cause, 
ballot boxes, voting booths, guard rails or other election 
supplies have not been received by the presiding judge, 
he shall procure them, and they shall be paid for as other 
election supplies. If the certified list of qualified voters 
is not in his possession at least three days before the elec­
tion, he shall send for and procure them. [Id. sec. 45.]

A rt. 2994. [2986] Collector’s fees for poll taxes.—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, fur­
nishing lists of qualified voters in election precincts for 
use in all general and primary elections and primary con­
vention when desired, and for all duties required of him 
under this title; provided, that collectors in counties hav­
ing a population in excess of 25,000 as determined by Ar­
ticle 3889, shall receive only ten cents for each poll tax 
receipt and certificate of exemption issued by him. [Acts 
1905, 1st C. S., p. 557, §144; Acts 1930, 41st Leg., 4tli 
C. S., p. 30, ch. 20, § 1.]

Section 10 of Acts 1930 is a repealing clause, and sec­
tion 12 provides that if any provision is held invalid, the 
same shall not affect the remaining portions.

A rt. 2995. [2987] Sheriff’s and constable’s fees.—The 
sheriff or any constable for serving copies of the order 
designating the bounds of election precincts, or the election



judges, posting notices, and for serving all other writs or 
notices prescribed by this title, shall be paid the amounts 
allowed by law for serving civil process. For delivering 
election supplies to precinct judges, when they are not 
obtained by such judges in person, the sheriff or constable 
shall be paid such amount as the commissioners coui't 
may allow, not to exceed two dollars for each election pre­
cinct. [Acts 1905, 1st C. S., p. 557, § 145.]

A rt. 2996. [2988] Expenses for election supplies.— All 
expenses incurred in providing voting booths, stationery, 
official ballots, wooden or rubber stamps, tally sheets, poll­
ing lists, instruction cards, ballot boxes, envelopes, seal­
ing wax and all other supplies required for conducting a 
general or special election shall be paid for by the county, 
except the cost of supplying booths for cities. All ac­
counts for supplies furnished or services rendered shall 
first be approved by the commissioners court, except the 
accounts for voting booths for cities. [Id. sec. 147.]

A rt. 2997. [2989-90] Municipal elections.—The expense 
of all city elections shall be paid by the city in which same 
are held. In all elections in incorporated cities, towns and 
villages, the mayor, the city clerk, or the governing body 
shall do and perform each act in other elections required 
to be done and performed respectively by the county judge, 
the county clerk, or the commissioners’ court. [Id. sec. 45.]

A rt. 3086. Election day.—An election for the elec­
tion of a Senator from Texas to the Congress of the 
United States shall be held on the first Tuesday after the 
first Monday in November of every year immediately pre­
ceding the fourth day of March when the term of any 
United States Senator from the State of Texas to the 
Congress of the United States is to expire. At such

72



73

election no person shall be qualified to vote for any candi­
date for United States Senator unless he is a qualified 
elector in any election held to elect members of the most 
numerous branch of the Legislature of this State. [Acts 
1st C. S. 1913, p. 101.]

A rt. 3087. Vacancy.— "When any vacancy occurs in the 
representation of this State in the United States Senate, 
the Governor of this State shall within ten days issue writs 
of election to fill such vacancy, which election shall be held 
not less than sixty days nor more than ninety days after 
such vacancy occurs, provided, if the Congress or Senate 
is in session at the time of such vacancy or should con­
vene before such election or before the result of the same 
can be officially ascertained under law’, the Governor shall 
make temporary appointment of a suitable and qualified 
person to represent the State in the United States Senate, 
until the election and qualification of a Senator can be 
made. [Id.]

A rt. 3088. State laws apply.— Every law regulating or 
in any manner governing elections or the holding of pri­
maries in this State shall be held to apply to each election 
or nomination of a candidate for a United States Senator 
so long as they are not in conflict wdth the Constitution of 
the United States or of any law or statute enacted by the 
Congress of the United States regulating the election of 
United States Senators or the provisions of this law7. The 
returns from any election held for United States Senator 
shall be made, the result ascertained and declared, a cer­
tificate of election issued, as provided for the election of 
representatives in Congress, by this title. [Id.]

A rt. 3089. Name on ballot.— The name of no candidate 
for United States Senator shall be placed upon the official



74

ballot of any party or of any organization as the nominee 
of said party or organization for said office unless the said 
candidate has been duly nominated and selected as herein 
provided. [Id.]

A rt. 3090. Nomination at primary.— Each party de­
siring to nominate a candidate for United States Senator 
shall, if such election is to be held on the first Tuesday 
after the first Monday in November of any year, nominate 
or select such candidate at a general primary election to 
be held throughout the State on the fourth Saturday in 
July next preceding such election for United States Senator. 
[Id.]

A rt. 3096. Candidate not nominated.—Any person who 
has not been defeated at the primary election preceding the 
general or special election for United States Senators, 
desiring to have his name appear upon the official ballot 
at any general election as a candidate for United States 
Senator who is not the nominee of any political party or 
political organization may do so only upon presenting a 
petition to the Secretary of State signed by at least ten 
per cent of the qualified voters in the State of Texas as 
measured by the total vote for Governor at the preceding 
general election. Said petition shall conform in every par­
ticular to the requirements of the laws of this State with 
reference to placing the name of any candidate, other 
than the nominee of any party upon the official ballot, 
but in no case shall the name of any person be placed 
upon the official ballot at any general election as a candi­
date for United States Senator as the nominee of any 
party unless he has been nominated under the provisions 
of this law and has complied with every provision of the 
laws of this State with reference to the nomination of 
candidates for United States Senators. [Id.]



A rt. 3101. Nominated at primary.— “ On primary elec­
tion day in 1926, and every two years thereafter, candi­
dates for Governor and for all other State officers to be 
chosen by vote of the entire State, and candidates for 
Congress and all district officers to be chosen by the vote 
of any district comprising more than one county, to be 
nominated by each organized political party that cast one 
hundred thousand votes or more at the last general elec­
tion, shall, together with all candidates for offices to be filled 
by the voters of a county, or of a portion of a county, 
he nominated in primary elections by the qualified voters 
of such party.

A rt. 3102. Date of primary.—“ The fourth Saturday 
in July 1926, and every two years thereafter shall be 
general primary election day, and primary elections to 
nominate candidates for a general election shall be held 
on no other day, except when specially authorized. No 
person shall be declared the nominee of any political party 
at any primary election for any State or district office 
unless he has complied with every requirement of all laws 
applicable to primary and other elections, and has received 
a majority of all the votes cast at such primary elections 
for all candidates for such office. If at the general primary 
election for any political party, no candidate becomes the 
nominee for any State or district office under this article, 
a second primary election shall be held by such political 
party, in the State or such districts, as the case may be, 
on the fourth Saturday in August succeeding such general 
primary election, and only the name of the two candidates 
who received the highest number of votes for any office 
for which nomination was made at the general election 
shall be placed on the official ballot as candidates for such 
office at such second primary. The second primary elec­
tion shall be conducted according to the law prescribed



76

for conducting the general primary election, and the candi­
dates receiving a majority of all votes cast for the office to 
which they aspire shall be declared the nominee for their 
respective offices. Any political party may hold a second 
primary election on the fourth Saturday in August to 
nominate candidates for any county or precinct office, where 
a majority vote is required to make nomination; but at 
such second primary, only the two candidates who received 
the highest number of votes at the general primary for the 
same official ballot. Nominations of candidates at such 
time as the party executive committee shall determine, but 
no such committee shall ever have the power to make 
such nominations. All precincts in the same county and 
all counties in the same district shall vote on the same 
day. Nominations of party candidates for offices to be 
filled in a city or town shall be made not less than ten 
days prior to the city or town election at which they are 
to be chosen, in such manner as the party executive com­
mittee for such city or town shall direct, and all laws 
prescribing the method for conducting county primary 
elections shall apply to them.”

A rt. 3103. Where to vote.—‘ ‘ The places of holding pri­
mary elections of political parties in the various precincts 
of the State shall not be within one hundred yards of the 
place at which such elections or conventions are held by a 
different political party. When the chairmen of the execu­
tive committee of the different parties cannot agree on the 
places where precinct primary elections to be held on the 
same day shall be held, such places in each precinct shall 
be designated by the county judge, who shall cause public 
notice thereof to be given at once in some newspaper in 
the county, or if there be none, by posting notices in some 
public place in the precinct.”



A kt. 3104. Officers of primary.— “ All the precinct pri­
mary elections of a party shall be conducted by a presiding 
judge, to be appointed by a chairman of the county execu­
tive committee of the party, with the assistance and 
approval of at least a majority of the members of the 
county executive committee. Such presiding judge shall 
select an associate judge and two clerks to assist in con­
ducting the election; two supervisors may be chosen by 
any one-fourth of the party candidates, who, with the 
judges and clerks, shall take the oath required of such 
officers in general elections. Two additional clerks may be 
appointed, but only when, in the opinion of the presiding 
judge, there will be more than one hundred votes polled 
at the primary election in the precinct.”

A rt. 3105. Judges of primary.—“ Judges of primary 
elections have the authority, and it shall be their duty, to 
administer oaths, to preserve order at the election, to ap­
point special officers to enforce the observance of order 
and to make arrests, as judges of general elections are au­
thorized and required to do. Such judges and officers shall 
compel the observance of the law that prohibits loitering or 
electioneering within one hundred feet of the entrance of 
the polling place, and shall arrest, or cause to be arrested, 
any one engaged in the work of conveying voters to the 
polls in carriages or other mode of conveyance, except as 
permited by this title.”

A rt. 3107. Political party may prescribe qualifications 
of members.—“ Every political party in this State through 
its State Executive Committee shall have the power to 
prescribe the qualifications of its own members and shall 
in its own way determine who shall be qualified to vote or 
otherwise participate in such political party; provided that



78

no person shall ever be denied the right to participate in a 
primary in this State because of former political views 
or affiliations or because of membership or non-member­
ship in organizations other than the political party.”

A kt. 3108. Expenses of primary.—“ At the meeting of 
the county executive committee provided in Article 3117, 
the county committee shall also carefully estimate the cost 
of printing the official ballots, renting polling places where 
same may be found necessary, providing and distributing 
all necessary poll books, blank stationery and voting booths 
required, compensation of election officers and clerks and 
messengers, to report the result in each precinct to the 
county chairman, as provided for herein, and all other 
necessary expenses of holding such primaries in such 
counties and shall apportion such cost among the various 
candidates for nomination for county and precinct offices 
only as herein defined, and offices only as herein defined, 
and offices to be filled by the votes of such county or 
precinct only (candidates for State offices excepted), in 
such manner as in their judgment is just and equitable, 
giving due consideration to the importance and emolu­
ments of each such office for which a nomination is to be 
made and shall, by resolution, direct the chairman to im­
mediately mail to each person whose name has been re­
quested to be so apportioned to him, with the request that 
he pay the same to the county chairman on or before the 
Saturday the fourth Monday in June thereafter.”

A rt. 3109. Ballot at primaries.—“ The vote at all gen­
eral primaries shall be by official ballot, which shall have 
printed at the head the name of the party, and under such 
head the names of all candidates, those for each nomina­
tion being arranged in the order determined by the vari­
ous committees as herein provided for, beneath the title of 
the office for which the nomination is sought. The voter



79

shall erase or mark out all names he does not wish to vote 
for. The official ballot shall be printed in black ink upon 
white paper, and beneath the name of each candidate 
thereof the State and district offices, there shall be printed 
the county of his residence. The official ballot shall be 
printed by the county committee in each county, which shall 
furnish to the presiding officer of the general primary for 
each voting precinct at least one and one-half times as 
many of such official ballots as there are poll taxes paid for 
such precinct, as shown by the tax collector’s list where 
two or more candidates are to be nominated for the same 
office, to be voted for by the qualified voters of the same 
district, county or justice precinct, such candidate shall be 
voted for and nominations made separately, and all nomi­
nations shall be separately designated on the official bal­
lots by numbering the same, “ 1” , “ 2” , “ 3 ” , printing the 
word “ No.,”  and the designating number after the title 
of the office for which such nominations are to be made. 
Each candidate for such nomination shall designate in the 
announcement of his candidacy, and in his request to have 
his name placed on official ballot, the number of the nomi­
nation for which lie desires to become a candidate and the 
names of all candidates so requesting shall have their 
names printed beneath the title of the office and the num­
ber so designated. Each voter shall vote for only one 
candidate for each such nomination.”

A rt. 3120. Booths used for primary.—“ The voting 
booths, ballot boxes and guard rails, prepared for a gen­
eral election, may be used for the organized political party 
nominating by primary election that cast over one hun­
dred thousand votes at the preceeding general election.”

A rt. 3121. List of voters.—“ The county tax collector 
shall deliver to the chairman of the county executive com- 
mitee of each political party, for its use in primary elec­



80

tions, at least five days before election day, certified and 
supplemental list of the qualified voters of each precinct 
in the county, arranged alphabetically and by precincts, 
and such chairman shall place the same for reference in 
the hands of the election of each election precinct before 
the polls are open. No primary election shall be legal, un­
less such list is obtained and used for reference during the 
election. Opposite the name of every vote on said list shall 
be stamped, when his vote is cast, with a rubber or wooden 
stamp, or written with pen and ink the words, “ primary
----------------voted,”  with the date of such primary under the
same for each list of all the qualified voters who have paid 
their poll taxes or received their certificate or exemption, 
the collector shall be permitted to charge not more than five 
dollars, the same to be paid by the party or its chairman 
so ordering said list; provided, that the charge of five dol­
lars shall be in full for the certified list of all the voters 
of the county arranged by precinct, as herein provided.”

A rt. 3124. Returns of election.—“ Immediately upon 
the completion of the counting of the ballots, the precinct 
election judges shall prepare and make out triplicate re­
turns of the same showing; (1) The total number of votes 
polled at such box; (2) The total number of votes cast at 
such box for each candidate, and the total number of votes 
polled at such box for or against any proposition votes 
upon. Such returns shall be signed and certified as correct 
by the judges and clerks of the election precinct. One copy 
of said returns shall be sealed up in an envelope and deliv­
ered by one of the precinct judges of election to the chair­
man of the county executive committee within twenty-four 
hours before the ballots shall have been counted; one copy 
of said returns shall be placed in one of the ballot boxes 
together with the ballots voted and shall be locked and 
sealed therein; the remaining copy of said returns shall be



81

retained by the presiding judge of election for a period of 
twelve months succeeding the date of election. The chair­
man of the county executive committee shall, upon receiv­
ing returns from each election precinct in the county order 
the members of the county executive committee to convene 
at the county seat of the county on the next succeeding 
day; provided, however, that if the returns of all precinct 
or not received by the county chairman before the first 
Friday succeeding the day of the primary election, the 
county executive committee shall meet on the first Sat­
urday succeeding the day of the primary election, and the 
returns in the hands of the county chairman shall be opened 
by the executive committee in executive session and shall 
be canvassed by them. The county Attorney shall upon 
the relation of the county chairman immediately institute 
mandamus proceedings in the proper court to compell the 
deliquent returning officers to make returns as required by 
law, and it shall be the duty of the county chairman to 
notify the county attorney of the deliquency of the election 
officers immediately after the meeting of the county exe­
cutive committee on the first Saturday next succeeding the 
day of the primary election.”

A rt. 3128. Box and ballots returned.—“ Ballot boxes 
after being used in primary elections shall be returned 
with the ballots cast, or contained in each box as they are 
deposited by the election judge, locked and sealed, to the 
county clerk, and, unless there be a contest for nomination 
in which fraud or illegality is charged, they shall be un­
locked and unsealed by the county clerk and their con­
tents destroyed by the county clerk and the county judge 
without examination of any ballot, at the expiration of 
sixty days after such primary election.”

A rt. 3129. To publish nominees.— “ The county clerks 
shall cause the names of the candidates who have received



82

the necessary votes to nominate, as directed by the county 
executive committee, for each office, to be printed in some 
newspaper published in the county, and if none, then he 
shall post a list of such names in at least five public places 
in the county, one of which shall be upon the court house 
door. ’ ’

A rt. 3130. Objections to nomination.— “ All objections 
to the regularity or validity of the nomination of any 
person, whose name appears in said list, shall be made 
within five days after such printing or posting, by a 
written notice filed with the county clerk, setting forth the 
grounds of objections. In case no such objection is filed 
within the time prescribed, the regularity or validity of 
the nomination of no person whose name is so printed or 
posted, shall be thereafter contested.”

A rt. 3131. Name printed on ballot.— “ After said names 
have been so printed or posted for the period above 
required, the said clerk shall cause the names to be 
printed on the official ballot in the column for the ticket 
of that party.”

A rt. 3132. To post names of candidates.—“ Each 
county clerk shall post in a conspicuous place in his office, 
for the inspection of the public, the names of all candi­
dates that have been lawfully certified to him to be printed 
on the official ballot, for at least ten days before he orders 
the same to be printed on said ballot; and he shall order 
all the names of the candidates so certified printed on the 
official ballot as otherwise provided in this title.”

A rt. 3142. Mandamus.—“ Any executive committee or 
committeeman or primary officer, or other person herein 
charged with any duty relative to the holding of the



83

primary election, or the canvassing, determination or 
declaration of the result thereof, may be compelled by 
mandamus to perform the same in accordance with the 
provisions of this title.”

A rt. 3144. Statement of expenses.—“ Within ten days 
after a final election, all candidates for office at such elec­
tion shall file a written itemized statement, under oath, 
with the county judge of the county of their residence, 
of all the expenses incurred during the canvass for the 
office, and for the nomination, including amounts paid to 
newspapers, hotel and traveling expenses, and such state­
ment shall be sworn to and filed, whether the candidate was 
elected or defeated, which shall at all times be subject to 
the inspection of the public.”

A rt. 3145. Expenses of manager.— “ Every person who 
manages any political headquarters for any political party, 
or for any candidate before any election, and every clerk 
or agent of such manager for such headquarters or candi­
date, and every other person whomsoever who expends 
money, gives any property or thing of value, or promises 
to use influence, or give a future reward to promote or 
defeat the election of any candidate, or to promote or 
defeat the success of any political party at any election, 
shall, within ten days after such election, file with the 
county judge of the county in which the political head­
quarters was located, and with the county judge of the 
county where such manager, clerk, or other person, as the 
case may be, resides, an itemized statement of all moneys 
or things of value thus given or promised, for what pur­
pose, by whom supplied, in what amount and how expended, 
and what regard was given or promised, by whom and to 
whom, and what influence was promised, by whom prom­
ised, and to whom said promise was given. He shall state



84

whether he has been informed, or has reason to believe, 
that the person thus aiding or attempting to defeat a 
party or candidate was an officer, stockholder, agent or 
employe of, or was acting for or in the interest of any 
corporation, giving his name, and, if so, what corporation; 
and he shall if he has no positive knowledge, state the 
source of his information or the reasons for his belief, as 
the case may be; all of which shall be sworn to and sub­
scribed before the county judge, who shall tile and pre­
serve the same, which shall at all times be subject to the 
inspection of the public.”

A rt. 3157. Nominations certified.—“ All nominations 
so made by a State or district convention shall be certified 
by the chairman of the State or district committee of 
such party to the Secretary of State, and a nomination 
made by a county convention, by the chairman of the 
county committee.”

A rt. 3158. Illegal participation.— “ No person shall be 
allowed to participate in any such convention who has 
participated in the convention or primary of any other 
party held on the same day.”

A rt. 3160. Oath to application.— ‘ ‘ To every citizen who 
signs such application, shall be administered the follow­
ing oath, which shall be reduced to writing and attached 
to such application, viz: ‘ I know the contents of the fore­
going application; I have participated in no primary elec­
tion which has nominated a candidate for the office for 
which I (here insert the name) desire to be a candidate; 
I am a qualified voter at the next general election under 
the constitution and laws in force, and have signed the 
above application of my own free will.’ One certificate or 
the officer before whom the oath is taken may be so made 
as to apply to all to whom it was administered.”



83

Texas Penal Code

A rticle 217. Refusing to Permit Voter to Vote.— Any 
judge of any election who shall refuse to receive the vote of 
any qualified elector who, when his vote is objected to shows 
by his own oath that he is entitled to vote, or who shall 
refuse to deliver an official ballot to one entitled to vote 
under the law, or who shall wilfully refuse to receive a 
ballot after one entitled to vote has legally folded and re­
turned same, shall be fined not to exceed five hundred dol­
lars.

A rticle 231. “ Election”  Defined.— The term “ elec­
tion”  as used in this chapter, means any election, either 
general, special, or primary, held under authority of law 
within this State, or within any town, city, district, county, 
precinct, or any other subdivision within this State for 
any purpose whatever.

Louisiana Statutes

La. Act No. 46, Regular Session, 1940:

Section 1. Be it enacted by the Legislature of Louisi­
ana, that all political parties shall make all nominations 
of candidates for the United States Senate, Members of 
the House of Representatives in the Congress of the United 
States, all State, district, parochial and ward officers, Mem­
bers of the Senate and House of Representatives of the 
State of Louisiana, and all city and ward officers in all cities 
containing more than five thousand population, by direct 
primary elections.

That any nomination by any political party of any 
person for any of the aforesaid mentioned offices by any



86

other method shall be illegal, and the Secretary of State 
is prohibited from placing on the official ballot the name 
of any person as a candidate for any political party not 
nominated in accordance with the provisions of this Act. 
# # * * * *

Section 3. The term “ political party,”  as used in this 
Act, is defined to be one that shall have cast at least five 
per centum of the entire vote cast in the last preceding 
gubernatorial election, or five per centum of the entire 
vote cast for presidential electors at the last preceding 
election, or at either of said elections.

Section 4. All primary elections held by political par­
ties, as defined herein, must be conducted and held under, 
and in compliance with, the provisions of this Act.

(Section 5 provides that all political parties shall be 
directed by an organization of committees which are de­
scribed and specified in detail. Among these committees 
is the Parish Committee for each parish in the state, which 
committee is to be “ composed of as many ward members 
as there are police jurors provided for in such parish and 
five (5) members at large, all of which members shall be 
elected in the same manner as members of the State Cen­
tral Committee; provided, however, that in the Parish of 
Orleans said parish committee shall consist of two (2) 
members from each ward in said parish.” )

Section 15. The members of the Parish Executive Com­
mittee, as herein provided, shall be elected at the first 
primary election held in January, 1944, for the nomination 
of State and parish officers, and shall be elected every four 
years thereafter. * * *
* * * * * *



8 7

Section 19. The State Central Committee, as now or­
ganized and created, and all other committees, as now or­
ganized and created, and all officers of the various com­
mittees heretofore created and now in existence, are hereby 
recognized and continued. All rules, regulations and re­
quirements heretofore adopted by the State Central Com­
mittee or by any of the committees organized under Act 
97 of the Legislature of Louisiana for the year 1922, as 
amended, not in conflict with or contrary to the provi­
sions of this Act, are hereby recognized as legal and valid, 
and shall continue in full force and effect until otherwise 
changed by the committees herein created, or authorized 
to be created.
* * * * * *

Section 27. The qualifications of voters and candidates 
in primary elections, held under this Act, shall be the same 
as now required by the Constitution and election laws of 
this State for voters at general elections and the further 
qualifications prescribed bv the State Central Committee 
of the respective political parties coming under the pro­
visions of this Act.
* * * * * *

Section 29. Only those who have so declared their politi­
cal affiliation shall be permitted to become candidates or to 
vote in any primary election of any political party, as 
defined in this Act.

Section 30. Any person desiring to become a candidate 
in any primary election held under the provisions of this 
Act shall, within twenty days for State and District offi­
cers, and within ten days for parochial, municipal and 
ward officers, except as otherwise provided herein, from and 
after the issuance of the call of the said committee for the



S8

said primary election, file with the respective officers here­
inafter designated, written notification of his intention to 
become a candidate at such primary, accompanied by a 
declaration, under oath, that to the best of his knowl­
edge and belief he is a duly qualified elector under the 
Constitution and laws of this State; that he is a member 
of the party calling said primary election, and that he 
possess the qualifications required by the State Central 
Committee of such party.

Section 31 (a). Every candidate for nomination as 
United States Senator, member of Congress * * * shall 
file written notification and declaration of candidacy, as 
provided herein, with the Chairman of the committee call­
ing the primary, and as evidence of their good faith, shall, 
at the time of filing such notice and declaration of candi­
dacy, deposit with the Chairman of the committee calling 
the primary election, the sum of One Hundred and No/100 
($100.00) dollars.
# # • # • •

Section 35. The expense of primary elections held under 
this Act shall be apportioned and defrayed as follows:

(a) The expense of printing ballots and the furnishing 
of the necessary stationery and other election supplies for 
all primary elections held under the provisions of this Act, 
except as hereinafter otherwise provided, and also all ex­
penses necessary to the transmission and promulgation of 
the returns, shall be paid by the State of Louisiana, in the 
same manner as for general elections.

(b) The necessary expenses incidental to the holding 
and conducting of the said primary elections, such as pay­
ment of commissioners of election, rent of polling places, 
expense of delivery of the ballot boxes and supplies to and



89

from the polling places, shall be borne by the respective 
parishes, cities and towns, and the respective police juries, 
or municipal authorities shall provide, by ordinance, for 
their payment.

(c) Any other actual expenses necessary and incidental 
to the calling and holding of the said primary election shall 
be borne by the candidates participating therein.

(Sections 36-39 provide that the ballot in Congressional 
primaries shall be prepared by the Secretary of State and 
shall be printed according to a specified form. Section 38 
provides:

“ At the bottom of the ballot and after the name of 
the last candidate shall be printed the following, viz.: ‘ By 
casting this ballot I do pledge myself to abide by the result 
of this primary election and to aid and support all the 
nominees thereof in the ensuing general election.’

“ Should any voter scratch out, deface or in any way 
mutilate or change the pledge printed on the ballot, he 
shall not be considered or held to have repudiated or to 
have refused to take the pledge, but shall, conclusively, be 
presumed and held to have scratched out, defaced or mu­
tilated or changed same for the sole purpose of identifying 
his ballot ; and accordingly such ballot shall be marked 
‘ Spoiled Ballot’ and shall not be counted.” ) 
* * # # # •

(Sections 53-57 specify the location of the polling places 
and the hours during which they must be open.)

Section 58. No voter shall be allowed to take part in 
any primary who shall not have registered at least thirty



90

(30) days prior to the date of the primary election held 
under this Act. Seven days prior to every primary elec­
tion, the Registrar of Voters throughout the entire State 
shall make a complete list of all registered voters in every 
voting precinct in the parish registered as affiliated with 
the party holding the primary, certify to same, and at least 
five (5) days before the primary election deliver the same 
to the respective parish committees of the party or parties 
holding the said primary election, without any cost or 
charge whatsoever. The said list shall not contain the 
name of any elector not affiliated with the party holding 
the said primary election. * * * 
* * * * * *

(Section 61 provides that primaries are to be conducted 
by five commissioners of election at each polling precinct, 
who shall be commissioned in each parish by the chair­
man or the vice-chairman of each parish committee. They 
are to possess “ the same qualifications as are required 
of voters in the ward in which they shall reside.”  Their 
compensation is to be $5. They are to be selected in this 
fashion: the “ local”  candidates in each parish in the 
state submit a given number of names of persons whom 
they desire to be commissioned, and the names of five of 
these persons are chosen by lot. (In Section 34, “ local 
candidates”  are defined as: “ (a) candidates for member­
ship in either house of the Legislature of Louisiana, (b) 
candidates for any parish, ward or municipal office, except 
those of Justice of the Peace or Constable.” ) This draw­
ing of names is to be conducted by the parish committee.)



J ud ' c ia l  P r in t in g  Co ., I n o . 
82 B e e k m a n  St ., N ew  Y ork  

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