Elmore v. Rice Records and Briefs

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April 11, 1947 - August 15, 1947

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Topic
- Political Participation
Collection
- Brief Collection
Taxonomy
Identifier
- b0364047-ca9a-ee11-be36-6045bdeb8873

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Brief Collection, LDF Court Filings. Elmore v. Rice Records and Briefs, 1947. b0364047-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/541c65f5-58b2-4587-8e67-50bbd6e5395d/elmore-v-rice-records-and-briefs. Accessed October 30, 2025.

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I n the

(Eouri of tlto liXnxUh §>tatpfl
October T erm, 1947 Q

No. 668

Clay E ice, et al.,
Petitioners,

v.
George E lmore, on B ehalf of H imself and Others

S imilarly S ituated,
Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR CERTIORARI

T hurgood M arshall,
W illiam R. M ing, Jr.,
Attorneys for Respondent.

H arold R. B oulware,
E dward R. D udley,
M arian W . P erry,

Of Counsel.

INDEX
PAGE

Statement of the Case----------------------------------------------------------------- 1

Reasons for Denying the Petition------------------------------------------------2

Conclusion----------------------------------------------------------------------------------------9

TABLE OF CASES

Carolina National Bank of Columbia v. State, 38 S. E. 629------------- 8

Chapman v. King, 154 F. (2d) 460------------------------------------------------------8

Ex parte Siebold, 100 U. S. 371---------------------------------------------------------- 4

Ex parte Yarbrough, 110 U. S. 651------------------------------------------------- 2

Grovey v. Townsend, 295 U. S. 45--------------------------------------------------- 7

Guinn v. United States, 238 U. S. 347---------------------------------------------- 7

In re Coy, 127 U. S. 731___________________________________________ 4

Kerr v. Enoch Pratt Free Library, 149 F. (2d) 212 certiorari
denied, 326 U. S. 721__________________________________________ 6

Lane v. Wilson, 307 U. S. 268______________________________________ 7, 9

Logan v. United States, 313 U. S. 299______________________________ 4

Marsh v. Alabama, 326 U. S. 501____________ 6

Smith v. Allwright, 321 U. S. 649___________________________________ 7

Steele v. Louisville and Nashville R. R., 323 U. S. 192_____________ 6

Swafford v. Templeton, 185 U. S. 487______________________________ 4

Tunstall v. Brotherhood of Locomotive Firemen, 323 U. S. 210_____ 6

United States v. Classic, 313 U. S. 299____________________________ 2

United States v. Mosley, 238 U. S. 383_____________________________ 4

Wiley v. Sinkler, 179 U. S. 58______________________________________ 4

I n th e

&npv?m (ftourt of tfyp Ti&mtib
October T erm, 1947

No. 668

Clay R ice, et al.,
Petitioners,

v.
George E lmore, on B ehalf of H imself and Others

S imilarly S ituated,
Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR CERTIORARI

STATEMENT OF THE CASE

Petitioners in their petition and brief have correctly cited
the case below and have properly indicated the basis for
jurisdiction. In their statement of facts, however, they
have omitted certain matters.

As the court below found:

“ For half a century or more the Democratic Party
has absolutely controlled the choice of elective officers
in the State of South Carolina. The real elections
within that state have been contests within the Demo
cratic Party, the general elections serving only to ratify
and give legal validity to the party choice. So well has
this been recognized that only a comparatively few
persons participate in the general elections. In the
election of 1946, for instance, 290,223 votes were cast
for Governor in the Democratic primary, only 23,326
in the general election.” (R. 115)

Despite the fact that in 1944 the General Assembly of
South Carolina repealed all existing statutes which con
tained any reference directly or indirectly to primary elec
tions within the state, the District Judge expressly found:

“ In 1944 substantially the same process was gone
through, although at that time and before the State
Convention assembled, the statutes had been repealed
by action of the General Assembly, heretofore set out.
The State Convention that year adopted a complete new
set of rules and regulations, these however embodying
practically all of the provisions of the repealed statutes.
Some minor changes were made but these amounted to
very little more than the usual change of procedure in
detail from year to year. * * * (R. 94)

“ In 1946 substantially the same procedure was used
in the organization of the Democratic Party and another
set of rules adopted which were substantially the same
as the 1944 rules, excepting that the voting age was low
ered to 18 and party officials were allowed the option
of using voting machines, and the rules relative to ab
sentee voting were simplified * * (R. 95)

REASONS FOR DENYING THE PETITION

When the courts below upheld the right of respondent, a
qualified elector, to participate in the choice of congressmen
in South Carolina, they properly applied the relevant provi
sions of the Constitution and laws of the United States as
construed by this Court. They readily and rightly recog
nized that the question was one which has already been “ set
tled by this court * * Therefore, we submit, the petition
for writ of certiorari should be denied.

This Court pointed out in United States v. Classic, 313
U. S. 299, 314, that ever since Ex parte Yarbrough, 110 U. S.
651, it has uniformly held that under Article I, Sec. 2 of the
Constitution the right to choose congressmen “ is a right
established and guaranteed by the Constitution and hence
is one secured by it to those citizens and inhabitants of the
state entitled to exercise the right.”

This Court made it equally plain in the Classic case that
the constitutional protection of the right to vote extended
to certain primary elections when it said:

“ Where the state law has made the primary an in
tegral part of the procedure of choice, or where in fact
the primary effectively controls the choice, the right of
the elector to have his ballot counted 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 primary
which invariably, sometimes or never determines the
ultimate choice of the representative. Here, even apart
from the circumstance that the Louisiana primary is
made by law an integral part 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 de
termines the choice of the elected representative. More
over, 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 pri
mary, and may thus operate to deprive the voter of his
constitutional right of choice.” (313 U. S. 299, 318-319.)
Italics supplied.

The record in the instant case shows, without dispute,
that the Democratic primary in South Carolina “ effectively
controls the choice” of congressmen and has done so for
nearly fifty years (R. 103-104). Equally clearly the record
shows that petitioners prevented respondent, and others
similarly situated, solely on account of his race and color,
from exercising his constitutional right to participate in the
choice of congressmen in the 1946 Democratic primary.

This Court held in the Classic case that Secs. 19 and 20 of
the Cirminal Code (Title 18 Secs. 51 and 52) provided crim

inal sanctions for interference with the right to vote in the
Louisiana primary. We submit that the courts below rightly
held that Title 8, Secs. 31 and 43 and the provisions of Title
28, Secs. 41 (1), (11), (14), and 400 similarly afford re
spondent a civil remedy in the federal courts for deprivation
of his right to vote in the South Carolina primary.

In support of their plea for certiorari petitioners claim,
primarily, that there was no “ state action” here. Even
accepting that assumption arguendo and only for the mo
ment, this neither justifies petitioners’ interference with
respondent’s right to vote nor does it require this Court to
review the decision below. In the Classic case, supra, this
Court was explicit on the point. There it was said:

Obviously included within the right to choose,_ se
cured by the Constitution, is the right of qualified
voters within a state to cast their ballots and have them
counted at Congressional elections. This Court has con
sistently held that this is a right secured by the Consti
tution. Ex parte Yarbrough, supra; Wiley v. Sinkler,
supra; Swafford v. Templeton, supra; United States v.
Moseley, supra; see Ex parte Siebold, supra; In re Coy,
127 U. S. 731; Logan v. United States, 144 U. S. 263.
And since the constitutional command is without re
striction or limitation, the right, unlike those guaran
teed by the Fourteenth and Fifteenth Amendments, is
secured against the action of individuals as well as of
states. Ex parte Yarbrough, supra; Logan v. United
States, supra. (313 U. S. 299, 315.)

Thus it appears to be well settled by the decisions of this
Court that the paramount right of a free people to choose
those persons to whom the powers of government are to be
entrusted is protected by the Constitution from interference
by individuals as well as by states. Petitioners take nothing
by their claim that their actions w’ere done pursuant to the
“ rules” of a “ voluntary political association.” They de
liberately and admittedly so acted as to prevent qualified
electors from exercising their constitutional right to vote.
The courts below, then, followed the decisions of this Court

in holding that the petitioners thns violated the Constitu
tion and laws of the United States.

Petitioners confuse the rights protected by Article I, Sec.
2 of the Constitution with those protected by the Fourteenth
and Fifteenth Amendments. That confusion is understand
able. The whole course of official conduct in South Carolina
beginning with then Governor Johnston’s speech when he
called a special session of the Legislature in 1944 * was to
evade if possible, or to violate if necessary, the express
limitations of the Fourteenth and Fifteenth Amendments.
It was admittedly the intention of the governor and the leg
islature to deprive all Negroes of their right to vote in the
Democratic primary. Small wonder, then, that petitioners,
fully aware of this scheme, are preoccupied with the Four
teenth and Fifteenth Amendments. We submit, however,
that it is at their peril that they ignore the protection af
forded all qualified electors by Article I, Sec. 2 of the Con
stitution.

We agree with petitioners that since the decision of the
Civil Rights Cases, 109 U. S. 3, this Court has held that the
Fourteenth and Fifteenth Amendments apply only when
there is “ state action.” And, the courts below, relying on
the decisions of this Court, found that it was the State of
South Carolina, acting through petitioners, which denied
respondent the right to vote. Thus respondent was entitled
to, and has been afforded, the protection of the Civil War
Amendments as well as the protection of Article I of the
Constitution.

It cannot be denied that it is a function of the state to
conduct elections for state and federal officers and the state
of South Carolina, of course, performs that function. As
the courts below found, in South Carolina the selection of
officers of government is a two-step process with the primary
the first step and the general election the second. Each

* See Exhibit C to original Complaint, which is admitted to be accurate
and correct (R. 37).

step, however, is an essential part in the process of selecting
the officers of government. This is so in South Carolina
whether the first step, the primary, is conducted pursuant
to statutes or to the rules of a political party, and the courts
below properly so held.

As the court below pointed out, when the officers of the
Democratic Party

“ participate in what is a part of the state’s election
machinery they are electing officers of the state de facto
if not de jure, and as such must observe the limitations
of the Constitution. Having undertaken to perform an
important function relating to the exercise of sov
ereignty of the people, they may not violate the funda
mental principles laid down by the Constitution for its
exercises.”

That conclusion was required by the decision of this Court
in the Classic case since “ in fact the primary effectively con
trols the choice. ’ ’

In other cases, this Court has recognized that it is not the
symbols and trappings of officialdom which determine
whether the Fourteenth and Fifteenth Amendments apply
but rather whether the facts of the particular case disclose
the exercise of the state’s authority. For example, in Marsh
v. Alabama, 326 U. S. 501, this Court held that the Four
teenth Amendment operated on the private owner of a
“ company town” to protect the right of freedom of speech.
Labor unions, although private voluntary associations, have
been held by this Court subject to the limitations of the due
process clause of the Constitution when exercising power
conferred by the federal government. Steele v. Louisville
and Nashville RR, 323 U. S. 192, Tunstall v. Rrotherhood of
Locomotive Firemen, 323 U. S. 210. Similarly the Fourth
Circuit in Kerr v. Enoch Pratt Free Library, 149 F. (2d)
212,* held that where a corporation had invoked the power

* Certiorari denied, 326 U. S. 721.

of the state for its creation and relied upon city funds for
its operation it was in fact a state instrumentality.

As this Court declared in Smith v. Allwright, 321 U. S.
649, 664-665:

“ When primaries become a part of the machinery for
choosing officials, state and national, as they have here,
the same tests to determine the character of discrimina
tion or abridgement should be applied to the primary
as are applied to the general election. If the State re
quires a certain electoral procedure, prescribes a gen
eral election ballot made up of party nominees so chosen
and limits the choice of the electorate in general elec
tions for state offices, practically speaking, to those
whose names appear on such a ballot, it endorses, adopts
and enforces the discrimination against Negroes, prac
ticed by a party entrusted by Texas laAV with the de
termination of the qualifications of participants in the
primary. This is state action within the meaning of the
Fifteenth Amendment. Guinn v. United States, 238 U.
S. 347, 362.

“ The United States is a constitutional democracy.
Its organic law grants to all citizens a right to partici
pate in the choice of elected officials without restriction
by any State because of race. This grant to the people
of the opportunity for choice is not to be nullified by a
State through casting its electoral process in a form
which permits a private organization to practice racial
discrimination in the election. Constitutional rights
would be of little value if they could be thus indirectly
denied. Lane v. Wilson, 307 U. S. 268, 275.

“ The privilege of membership in a party may be, as
this Court said in Grovey v. Townsend, 295 U. S. 45, 55,
no concern of a State. But when, as here, that privilege
is also the essential qualification for voting in a primary
to select nominees for a general election, the State
makes the action of the party the action of the State. ’ ’

Prior to the action of the South Carolina Legislature in
repealing more than 150 statutes governing the conduct of
the primary in that state there was no doubt that under the

decision in Smith v. Allwright, supra, respondent had a right
to participate in the Democratic primary. The court below
expressly found that in fact the relationship between the
Democratic primary and the process of the selection of the
officers of government was unchanged by the repeal of the
statutes (R. 103). Under these circumstances, we submit,
petitioners continued to exercise the power of the state in
carrying on the election of representatives. In so doing
they were bound by the limitations of the Fourteenth and
Fifteenth Amendments and in accordance with the decisions
of this Court the courts below properly so held.

Petitioners claim that the decision of the court below is
inconsistent with that of the Fifth Circuit in Chapman v.
King, 154 F. (2d) 460. In that case, relying on Smith v.
Allwright, supra, the court upheld the right of a Negro voter
to participate in the Georgia Democratic primary. At most
it can be said that there is dicta in the opinion in Chapman
v. King, 154 F. (2d) 460, 463, which is inconsistent with the
decision of the court below in the instant case. When a
decision is consistent with the decisions of this Court a dif
ference in dicta in the opinion of another Circuit Court of
Appeals is not, we submit, ground for granting a writ of
certiorari. Particularly is that true when, as here, the de
cisions of the two courts are consistent with each other and
the rulings of this Court.

Similarly, the petitioners seek to bolster their plea by
claiming that the court below has decided an important
question of “ local law” in a way probably in conflict with
applicable local decisions. The court below construed and
applied the relevant provisions of the Federal Constitution
and statutes. By definition the limitations of the Constitu
tion of the United States are not “ local” in character.
Therefore Carolina National Bank of Columbia v. State, 38
S. E. 629, has no application. It is for the federal courts,
not the Supreme Court of South Carolina, to decide whether
there has been “ state action” within the meaning of the
Fourteenth Amendment. We submit that it has already

been demonstrated that the decision of the court below was
consistent with the decisions of this Court in that regard.

Petitioners also contend that the decision of the Court
below interferes with their right peaceably to assemble and
thus contravenes the First Amendment to the Constitution.
This contention is as spurious as it is novel. The actual
“ right” which petitioners assert is the absolute authority
to deprive Negroes in South Carolina of the effective exer
cise of their ‘ ‘ right to choose members of the House of Rep
resentatives. ” The record in this case shows plainly that
in conducting the primary election in the State of South
Carolina the Democratic Party is not a group of individual
citizens assembling peaceably to secure redress for griev
ances. It is an organization carrying on a part of the func
tion of the state government to select representatives and
senators to sit in the Congress of the United States and it
is to that activity to which the court below applied the Con
stitutional limitations. In any event, petitioners’ right to
assemble cannot be so exercised so to deprive respondent of
his right to vote and this Court so held in Smith v. Allwright,
supra.

CONCLUSION

In Lane v. Wilson, 307 U. S. 268, 275, this Court pointedly
declared that the Fifteenth Amendment nullifies “ sophisti
cated as well as simple-minded modes of discrimination.”
Characterization of the South Carolina device to achieve
the disfranchisement of Negroes seems hardly necessary.
The record in this case shows plainly and without contradic
tion that the processes of that state have been subverted to
achieve a result forbidden by the Constitution of the United
States. Both the District Court and the Circuit Court of
Appeals recognized this and so held. That decision is con
sistent with the applicable decisions of this Court. We sub
mit, therefore, that no grounds exist here to warrant issu

ance of a writ of certiorari by this Court and we urge denial
of the petition.

Respectfully submitted,

T hurgood M arshall,
W illiam R. M ing, Jr.,
Attorneys for Respondent.

H arold R. B oulware,
E dward R. D udley,
M arian W . P erry,

Of Counsel.

In th e

g>upmn? (Emtrt of X \ \ t lUnxtrti £>tatpo
October T erm, 1947

No. 668

Clay R ice, et al.,
Petitioners,

v.
George E lmore, on B ehalf of H imself and Others

S imilarly S ituated,
Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR CERTIORARI

T hurgood M arshall,
W illiam R. M ing, Jr.,
Attorneys for Respondent.

H arold R. B oulware,
E dward R. D udley,
Marian W . P erry,

Of Counsel.

INDEX

PAGE
Statement of the Case___________________________________________ 1

Reasons for Denying the Petition_________________________________ 2

Conclusion_________________________________________________________ 9

TABLE OF CASES

Carolina National Bank of Columbia v. State, 38 S. E. 629________ 8

Chapman v. King, 154 F. (2d) 460_________________________________ 8

Ex parte Siebold, 100 U. S. 371______________________________________ 4

Ex parte Yarbrough, 110 U. S. 651________________________________ 2

Grovey v. Townsend, 295 U. S. 45__________________________________ 7

Guinn v. United States, 238 U. S. 347______________________________ 7

In re Coy, 127 U. S. 731___________________________________________ 4

Kerr v. Enoch Pratt Free Library, 149 F. (2d) 212 certiorari
denied, 326 U. S. 721__________________________________________ 6

Lane v. Wilson, 307 U. S. 268______________________________________ 7, 9

Logan v. United States, 313 U. S. 299______________________________ 4

Marsh v. Alabama, 326 U. S. 501___________________________________ 6

Smith v. Allwright, 321 U. S. 649___________________________________ 7

Steele v. Louisville and Nashville R. R., 323 U. S. 192_____________ 6

Swafford v. Templeton, 185 U. S. 487______________________________ 4

Tunstall v. Brotherhood of Locomotive Firemen, 323 U. S. 210_____ 6

United States v. Classic, 313 U. S. 299____________________________ 2

United States v. Mosley, 238 U. S. 383_____________________________ 4

Wiley v. Sinkler, 179 U. S. 58_____________________________ ;________ 4

In th e

j$uprpmp (Hour! of tfyp HHniteb States
October T ebm , 1947

No. 668

Clay R ice, et al.,
Petitioners,

v.
George E lmore, on B ehalf of H imself and Others

S imilarly S ituated,
Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR CERTIORARI

STATEMENT OF THE CASE

As the court below found:

“ In 1944 substantially the same process was gone
through, although -at that time and before the State
Convention assembled, the statutes had been repealed
by action of the General Assembly, heretofore set out.
The State Convention that year adopted a complete new
set of rules and regulations, these however embodying
practically all of the provisions of the repealed statutes.
Some minor changes were made but these amounted to
very little more than the usual change of procedure in
detail from year to year. * * * (R. 94)

REASONS FOR DENYING THE PETITION

This Court made it equally plain in the Classic case that
the constitutional protection of the right to vote extended
to certain primary elections when it said:

“ Where the state law has made the primary an in
tegral part of the procedure of choice, or where in fact
the primary effectively controls the choice, the right of
the elector to have his ballot counted at the primary is
likewise included in the right protected by Article 1, 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 primary
which invariably, sometimes or never determines the
ultimate choice of the representative. Here, even apart
from the circumstance that the Louisiana primary is
made by law an integral part 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 de
termines the choice of the elected representative. More
over, 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 pri
mary, and may thus operate to deprive the voter of his
constitutional right of choice.” (313 U. S. 299, 318-319.)
Italics supplied.

This Court held in the Classic case that Secs. 19 and 20 of
the Cirminal Code (Title 18 Secs. 51 and 52) provided crim-

Obviously included within the right to choose, se
cured by the Constitution, is the right of qualified
voters within a state to cast their ballots and have them
counted at Congressional elections. This Court has con
sistently held that this is a right secured by the Consti
tution. Ex parte Yarbrough, supra; Wiley v. Sinkler,
supra; Swafford v. Templeton, supra; United States v.
Moseley, supra; see Ex parte Siebold, supra; In re Coy,
127 U. S. 731; Logan v. United States, 144 U. S. 263.
And since the constitutional command is without re
striction or limitation, the right, unlike those guaran
teed by the Fourteenth and Fifteenth Amendments, is
secured against the action of individuals as well as of
states. Ex parte Yarbrough, supra; Logan v. United
States, supra. (313 U. S. 299, 315.)

Thus it appears to be well settled by the decisions of this
Court that the paramount right of a free people to choose
those persons to whom the powers of government are to be
entrusted is protected by the Constitution from interference
by individuals as well as by states. ^Petitioners take nothing
by their claim that their actions were done pursuant to the
“ rules” of a “ voluntary political association.” They de
liberately and admittedly so acted as to prevent qualified
electors from exercising their constitutional right to vote.
The courts below, then, followed the decisions of this Court

in holding that the petitioners thus violated the Constitu
tion and laws of the United States.

Petitioners confuse the rights protected by Article I, Sec.
2 of the Constitution with those protected by the Fourteenth
and Fifteenth Amendments. That confusion is understand
able. The whole course of official conduct in South Carolina
beginning with then Governor Johnston’s speech when he
called a special session of the Legislature in 1944 # was to
evade if possible, or to violate if necessary, the express
limitations of the Fourteenth and Fifteenth Amendments.
It was admittedly the intention of the governor and the leg
islature to deprive all Negroes of their right to vote in the
Democratic primary. Small wonder, then, that petitioners,
fully aware of this scheme, are preoccupied with the Four
teenth and Fifteenth Amendments. We submit, however,
that it is at their peril that they ignore the protection af
forded all qualified electors by Article I, Sec. 2 of the Con
stitution.

* See Exhibit C to original Complaint, which is admitted to be accurate
and correct (R. 37).

As the court below pointed out, when the officers of the
Democratic Party

That conclusion was required by the decision of this Court
in the Classic case since “ in fact the primary effectively con
trols the choice. ’ ’

In other cases, this Court has recognized that it is not the
symbols and trappings of officialdom which determine
whether the Fourteenth and Fifteenth Amendments apply
but rather whether the facts of the particular case disclose
the exercise of the state’s authority. For example, in Marsh
v. Alabama, 326 U. S. 501, this Court held that the Four
teenth Amendment operated on the private owner of a
“ company town” to protect the right of freedom of speech.
Labor unions, although private voluntary associations, have
been held by this Court subject to the limitations of the due
process clause of the Constitution when exercising power
conferred by the federal government. Steele v. Louisville
and Nashville RR, 323 U. S. 192, Tunstall v. Brotherhood of
Locomotive Firemen, 323 U. S. 210. Similarly the-Fourth
GirouiLin Kerr v. Enoch Pratt Free Library, 149 F. (2d)
212,* held that where a corporation had invoked the power *

* Certiorari denied, 326 U. S. 721.

of the state for its creation and relied upon city funds for
its operation it was in fact a state instrumentality. _____

As this Court declared in Smith v. Allwright, 321 U. S.
649, 664-665:

“ When primaries become a part of the machinery for
choosing officials, state and national, as they have here,
the same tests to determine the character of discrimina
tion or abridgement should be applied to the primary
as are applied to the general election. If the State re
quires a certain electoral procedure, prescribes a gen
eral election ballot made up of party nominees so chosen
and limits the choice of the electorate in general elec
tions for state offices, practically speaking, to those
whose names appear on such a ballot, it endorses, adopts
and enforces the discrimination against Negroes, prac
ticed by a party entrusted by Texas law with the de
termination of the qualifications of participants in the
primary. This is state action within the meaning of the
Fifteenth Amendment. Guinn v. United States, 238 U.
S. 347, 362.

Prior to the action of the South Carolina Legislature in
repealing more than 150 statutes governing the conduct of
the primary in that state there was no doubt that under the

Similarly, the petitioners seek to bolster their plea by
claiming that the court below has decided an important
question of “ local laAv” in a way probably in conflict with
applicable local decisions. The court below construed and
applied the relevant provisions of the Federal Constitution
and statutes. By definition the limitations of the Constitu
tion of the United States are not “ local” in character.
Therefore Carolina National Bank of Columbia v. State, 38
S. E. 629, has no application. It is for the federal courts,
not the Supreme Court of South Carolina, to decide whether
there has been “ state action” within the meaning of the
Fourteenth Amendment. We submit that it has already

been demonstrated that the decision of the court below was
consistent with the decisions of this Court in that regard.

' j L)£l”'^etitioners also contend that the decision of the Court
̂i . below interferes with their right peaceably to assemble and

thus contravenes the First Amendment to the Constitution.
This contention is as spurious as it is novel. The actual
“ right” which petitioners assert is the absolute authority
to deprive Negroes in South Carolina of the effective exer
cise of their “ right to choose members of the House of Rep
resentatives.” The record in this case shows plainly that
in conducting the primary election in the State of South
Carolina the Democratic Party is not a group of individual
citizens assembling peaceably to secure redress for griev
ances. It is an organization carrying on a part of the func
tion of the state government to select representatives and
senators to sit in the Congress of the United States and it
is to that activity to which the court below applied the Con
stitutional limitations. In any event, petitioners’ right to
assemble cannot be so exercised so to deprive respondent of
his right to vote and this Court so held in Smith v. AUwright,
supra, o ■ ,

Ofi

CONCLUSION

ance of a writ of certiorari by this Court and we urge denial
of the petition.

Respectfully submitted,

T hurgood M arshall,
W illiam R. M ing, Jr.,
Attorneys for Respondent.

H arold R. B oulware,
E dward R. D udley,
M arian W . P erry,

Of Counsel.

Supreme Court of the United States
OCTOBER TERM, A. D., 1947

No.

CLAY RICE et al., P etitioners,

versus

GEORGE ELMORE, on B ehalf of H imself and Others
Similarly Situated, R espondent

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

FOR THE FOURTH CIRCUIT AND BRIEF IN
SUPPORT OF PETITION

CHRISTIE BENET,
IRVINE F. BELSER,
CHARLES B. ELLIOTT,
W ILLIAM P. BASKIN,
P. H. McEACHIN,
J. PERRIN ANDERSON,
W. BRANTLEY HARVEY,
EDGAR A. BROWN,
YANCEY A. McLEOD,

Attorneys for Petitioners.

The R. L. Bryan Company, Legal Printers, Columbia, S. C.

INDEX TO PETITION
P age

Statement of Matter Involved ........................................... 1

This Court has Jurisdiction............................................... 6

The Questions Presented ................................................... 6

Reasons Relied Upon for Allowance of W r it .................... 7

Prayer for W r it ...................................................................... 11

( i )

TABLE OF CASES
P age

Barney v. City of New York, 193 U. S., 430, 48 L. Ed. 737 21
Carolina National Bank v. State of South Carolina, 60

S. C., 465, 38 S. E., 629 ......................................... 10, 17
Chapman v. King, 154 Fed. (2d), 460, (Cert. Den), 66

Sup Ct., 905, 90 L. Ed., 1025 ................................. 9, 17
Civil Rights Cases, 109 U. S., 3, 27 L. Ed., 836 .............. 21
De Jonge v. Oregon, 299 U. S., 353, 364, 81 L. Ed., 278 . . 25
East St. Louis Railway v. City of East St. Louis, 13 Fed.

(2d), 852 ............' .......................................................... 21
Nixon v. Condon, 286 U. S., 73, 76 L. Ed., 985 .......... 7, 16
Smith v. Allwright, 321 U. S., 647, 88 L. Ed., 987 . . . . 5, 16
Snowden v. Hughes, 321 U. S., 1, 88 L. Ed., 497 .............. 22
United States v. Classic, 313 U. S., 299, 85 L. Ed., 1368 5, 16

OTHER AUTHORITIES
P age

American Jurisprudence, Vol. 11, Constitutional Law,
Sec. 325, p. 1119............................................................. 25

American Jurisprudence, Vol. 11, Constitutional Law,
Sec. 325, p. 1121 ......................................................... 25

Supreme Court Rule 38, par. (5) ( b ) .......................... 7, 16
United States Constitution, Amendment I ................ 5, 24
Unites States Constitution, Art. I, sections 2 and 4 1, 9, 22
United States Constitution, Art I, Sec. 4, clause 1 . . . . 27
United States Constitution, Amendment 1 0 .................... 28

TABLE OF STATUTES CITED
P age

Judicial Code, Sec. 240(a), 28 U. S. C., 347 ................ 6, 15
Judicial Code, Sec. 24 (14), 28 U. S. C. A., Sec. 41 (14) 3, 20
United States Code, Title 8, Sec. 43, 8 U. S. C. A., 43 . . . . 20

(ii)

Supreme Court of the United States
OCTOBER TERM, A. D., 1947

No.

CLAY RICE et AE., Petitionees,

versus

GEORGE ELMORE, on B ehalf of H imself and Others
Similarly Situated, R espondent

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

FOR THE FOURTH CIRCUIT AND BRIEF IN
SUPPORT OF PETITION

To the Honorable the Supreme Court of the United States:
Your petitioners respectfully show:

SUMMARY STATEMENT OF THE MATTER
INVOLVED

This is a suit in equity brought in the United States
District Court for the Eastern District of South Carolina
by respondent herein against petitioners herein, sixty cit
izens of Richland County, South Carolina, for damages, for
injunction and for a declaratory judgment, under the provi
sions of Amendments Fourteen, Fifteen and Seventeen,
Sections 2 and 4 of Article I of the United States Constitu
tion, Sections 31 and 43 of Title 8 of the United States
Code, subdivision 11 of Section 41 of Title 28 of the United

States Code, subdivision 14 of Section 41 of Title 28 of the
United States Code, and Section 400 of Title 28 of the
United States Code (Section 274D of the Judicial Code).
At the trial the District Court ruled that the matter of dam
ages would be reserved for future decision and the issues
confined to the matter of the injunction and declaratory
judgment. The trial was by the Court and a decree was
rendered in favor of the respondent against petitioners.
An appeal from said decree was taken by petitioners to
the Circuit Court of Appeals for the Fourth Circuit, which
affirmed the decree of the District Court. The petition for
rehearing was denied February 6, 1948.

The complaint alleged that the respondent on August
13, 1946, was an elector qualified to vote in the State of
South Carolina and on August 13, 1946, presented himself
to the regular polling place of Ward 9 Precinct in Richland
County and requested ballots and to be permitted to vote
in said primary but that the petitioners, who were alleged
to be county officers of the Democratic party and managers
at the primary, refused to permit the respondent to vote
in said primary, solely because of race or color, pursuant
to the rules and regulations adopted by the Democratic
Party of South Carolina, and that the General Assembly
of South Carolina on April 20, 1944, had passed one hun
dred and fifty (150) Acts repealing all existing laws which
contained any reference, directly or indirectly, to the pri
maries in the State and that the only provision in the Con
stitution of South Carolina referring to primary elections
had been repealed. (R. 6.)

The petitioners filed motion to strike, and without
waiving said motion, answered that the District Court was
without jurisdiction of the subject-matter of the contro
versy for the reasons that no substantial Federal question
was involved, because:

2 Rice et al., Petitionees, v. Elmore, Respondent

Rice et al., Petitionees, v. Elmoke, Respondent 3

“ (a) The jurisdictional amount does not in reality
exist so as to give the Court jurisdiction under Subdi
vision 1 of Section 41 of Title 28 of the United States
Judicial Code; and

“ (b) This is not in reality an action to enforce the
rights of a citizen to vote so as to give the Court juris
diction under Subdivision 11 of Section 41 of Title 28
of the United States Judicial Code; and

“ (c) The alleged acts complained of were not taken
under color of any law, statute, regulation, custom and
usage of a State so as to bring the matter within the
jurisdiction of the Court under subdivision 14 of Sec
tion 41 of Title 28 of the United States Judicial Code;
and

“ (d) Under Section 400 of Title 28 of the United
States Judicial Code, this Court does not have juris
diction, unless jurisdiction exists under and by virtue of
some other section of the Judicial Code, which jurisdic
tion is expressly denied; said Section 400 does not en
large the jurisdiction of this Honorable Court.”

Further, the answer alleged as a second defense that the re
spondent is not entitled to any relief at law or in equity,
in that it appears upon the face of the complaint that the
Democratic Party of South Carolina is a private voluntary
association of individuals, mutually acceptable to each
other, and is not created or regulated by virtue of any stat
ute or law, but solely by the rules of said voluntary asso
ciation; that the plaintiff has not been deprived of any
rights, privileges or immunities secured or protected under
the Constitution or laws of the United States. It further ap
pears that the complaint fails to state a claim against the
defendants upon which relief can be granted.

As a third defense, petitioners denied various allega
tions in the complaint and alleged that the Constitution of
the United States secures to qualified voters within the
State of South Carolina the right to cast their ballots only

4 Rice et al., Petitioners, v. Elmore, Respondent

at the general elections for representatives and senators in
the United States Congress; that under the Constitution
and laws of South Carolina any qualified elector had the
right to cast his ballot in the general election hut that under
the United States Constitution the Respondent did not have
the right to cast his ballot in the primary conducted by the
Democratic Party on August 13, 1946, because there was
no statute or law in the State of South Carolina requiring
or regulating the holding of such primary and that the pri
mary held on August 13, 1946, was no part of the general
election. (R. 13.)

The major portion of the testimony in the District
Court was embodied in a stipulation by counsel. (R .......... )
Among other things it was stipulated that:

“ (a) On June 1,1944, and April 20,1947, the Gen
eral Assembly of South Carolina repealed all existing
statutes which contained any reference directly or indi
rectly to primary elections within the State and that the
only constitutional provision in the Constitution of
South Carolina mentioning primary elections was ef
fectively repealed on February 14, 1945. (R. 36.)

“ (b) Neither the State of South Carolina, nor any
of its political subdivisions pays any part whatsoever
of the expenses of the conduct of the Democratic Party
in South Carolina or of any other political party or of
any party primary.

“ (c) The Democratic Party of South Carolina, of
which the petitioners were county officers and members,
is governed wholly by its own rules and regulations.”
The decision of the District Court is reported in 72 F.

Supp. 516 (R. 78.)
For Findings of Fact and Conclusions of Law of the

District Court, dated July 12, 1947, see R. 100.
For Older of the District Court, dated July 12, 1947,

see R. 105.

For decision of Circuit of Appeals, dated December
30, 1947, see R. 114. Petition for rehearing was denied. (R.
135.)

The District Court rendered a declaratory judgment in
favor of Respondent and permanently restrained and en
joined the defendants in the cause, the petitioners herein,
and their respective successors in office from denying quali
fied Negro electors the right to vote in Democratic Primary
elections in South Carolina solely because of race or color.

For “ Points” relied upon by Petitioners in the Circuit
Court of Appeals, see R. 106. The major issues presented
in the Circuit Court of Appeals were:

(a) United States v. Classic, 313 U. S. 299, 85 L.
Ed. 1368 and Smith v. Allwright, 321 U. S. 647, 88 L.
L. Ed. 987, upon which the District Court pitched its de
cision, depended upon statutory requirement and regu
lation of the primary, and inasmuch as in the case at
bar, there is no State statute regulating the primary by
law, said cases are not applicable to support the decree
of the Court.

(b) The Federal Courts are without jurisdiction
of this suit because no state action was involved, the
defendants in the District Court were not acting under
any State statute or law or as State officers or agents,
but at the times complained of were acting solely in
their capacity as members of the Democratic Party.

(c) The Democratic Party in South Carolina is
a voluntary, political association with unrestricted
choice of membership, and that the defendants at the
times complained of were not acting under color of any
State statute or law, but acting solely by virtue of the
Rules of the Democratic Party.

(d) The Court should protect the traditional and
constitutional rights of the defendants below under
the constitutional provision ‘ peaceably to assemble’ .
Amendment No. 1 to the United States Constitution.

Rice et al, Petitioners, v. Elmore, Respondent 5

6 Rice et al., Petitioners, v. Elmore, Respondent

JURISDICTIONAL STATEMENT
The jurisdiction of this Court is invoked under Section

240 of the Judicial Code. 28 U. S. C. A. 347 ( a ) :
“ (a) In any case, civil or criminal, in a circuit

court of appeals, or in the Court of Appeals of the Dis
trict of Columbia, it shall be competent for the Su
preme Court of the United States, upon the petition of
any party thereto, whether Government or other liti
gant, to require by certiorari, either before or after a
judgment or decree by such lower court, that the cause
be certified to the Supreme Court for determination
by it with the same power and authority, and with like
effect, as if the cause had been brought there by unre
stricted writ of error or appeal.”
The decision of the Circuit Court of Appeals for the

Fourth Circuit is dated December 30, 1947. (R. 123.)

THE QUESTIONS PRESENTED
The questions presented are:

A
Whether the United States Circuit Court of Appeals

for the Fourth Circuit had jurisdiction to render a declara
tory judgment and an injunction permanently restraining
and enjoining the petitioners and their successors in office.

B
Whether petitioners, sixty residents and citizens of

Richland County, South Carolina, at the times complained
of were agents or officers of the State of South Carolina in
such manner as to subject them to the jurisdiction of the
Federal Court.

C
Whether the Democratic Party of South Carolina is a

voluntary, political association, with unrestricted choice of
membership.

D
Whether the cases of Smith v. Allwright, and United

States v. Classic, supra, depended upon the statutory re
quirement and regulation of the primaries and whether in
asmuch as in the case at bar there was no statutory require
ment or regulation by law of the primary, the said cases
are applicable to support the judgment of the Circuit Court
of Appeals.

E
Whether petitioners at the times complained of have

been deprived of a right secured and protected by Amend
ment 1 to the United States Constitution or the denial in
the decision by the Court below of their right “ peaceably
to assemble” .

F
Whether respondent has a constitutional right to vote

in the Democratic primary in the State of South Carolina
where the Democratic Party is wholly unregulated by state
statutes.

SEASONS RELIED ON FOR THE ALLOWANCE OF
THE WRIT

I
This case involves “ an important question of Federal

law, which has not been, but should be, settled by this
Court.” (Supreme Court Rule 38, par. (5)(b). In Nixon
v. Condon, 286 U. S. 73, 76 L. Ed. 985, this Court left open
the question of the inherent power of a political party when
uncontrolled and unregulated by State law to determine
its own membership, the Court saying (at page 988):

“ Whether a political party in Texas has inherent
power today without restraint by any law to determine
its own membership, we are not required at this time
either to affirm or to deny.”

Rice et al., Petitioners, v . Elmore, Respondent 7

8 Rice et al, Petitionees, v. Elmore, Respondent

In Smith v. Allwright, supra, this Court, referring to the
Condon case, held:

“ The question of the inherent power of a political
party in Texas ‘ without restraint by any law to de
termine its own membership’ was left open.” (88 L.
Ed. p. 994.)

The question there left open has not been determined by
any decision of this Court. In the ease at bar the primary
held on August 13,1946, was not required, regulated or con
trolled in any manner by any law in the State of South
Carolina. In its decision in the case at bar the Circuit Court
of Appeals for the Fourth Circuit held: “ It is true, as de
fendants point out, that the primary involved in Smith v.
Allwright was conducted under the provisions of state law
and not merely under party rules, as in the case here, but
we do not think this is a controlling distinction” . This Court
has never decided in such circumstance that the primary is
an integral part of the election machinery. Nor has this
Court decided in such a case that rules promulgated by a
political party were not valid. The Circuit Court of Appeals
for the Fourth Circuit based its decision on a dictum in
United States v. Classic, supra, and held: “ It is pointed
out in the case of United States v. Classic, supra, 313 U. S.
299, that the right to vote in the primary and to have one’s
vote counted is to be protected, not only where state law
has made the primary an integral part of the procedure of
choice, but also where in fact it effectively controls the
choice, as is unquestionably true in South Carolina.” This
dictum is squarely in conflict with the decision of this Court
in Smith v. Allwright, supra, interpreting the Classic de
cision as holding that the Congressional power to regulate
the primary existed only “ where the primary is by law
made an integral part of the election machinery” and that
the decision in the Classic case “ depended, too, on the de-

Rice et al., Petitioners, v. Elmore, Respondent 9

termination that under the Louisiana statutes the primary
was a part of the procedure for choice of Federal officials.”

II
The decision in the Circuit Court of Appeals held that

“ political parties have become in effect state institutions,
governmental agencies through which sovereign power is
exercised by the people” . And “ when these officials par
ticipate in what is a part of the state’s election machinery,
they are election- officers of the state de facto if not de jure,
and as such must observe the limitations of the Constitu
tion.” In thus holding that the petitioners though acting
solely as members and officers of the Democratic Party
and not under any state statutes were agents and officers
of the State of South Carolina and subject to the restraints
of Sections 2 and 4 of Article I of the United States Consti
tution, and of the Fourteenth, Fifteenth and Seventeenth
Amendments, the said Circuit Court of Appeals has de
cided a “ Federal question in a way probably in conflict with
applicable decisions of this Court” . (Supreme Court Rule
38, par. (5)(b).)

III
In failing to determine that the Courts are under an ob

ligation to protect the constitutional rights of the citizens
of South Carolina and the petitioners under the constitu
tional provision “ peaceably to assemble” (Amendment No.
1 to the United States Constitution) the said Circuit Court
of Appeals has decided an important Federal question in
a way probably in conflict with applicable decisions of this
Court. (Supreme Court Rule 38, par. (5)(b).)

IV
The decision of the Circuit Court of Appeals in this

case is in conflict with the decision of the Circuit Court of
Appeals of the Fifth Circuit in the case of Chapman v.

King, 154 Fed. (2d) 460 (Cert, denied), 66 Sup. Ct. 905,
90 L. Ed. 1025, April 1, 1946, wherein it was expressly held
that in the absence of statutory regulation making the
party an agency of the state, the members of political par
ties had an unrestricted choice of membership. In that case
the Court assumed jurisdiction because of the statutory
requirement and regulation of the primaries, hut expressly
stated that its holding was based upon such statutory regu
lation and requirement. The Circuit Court of Appeals in
the case at bar recognized this conflict and said in reference
thereto “ while we have great respect for that Court, we are
of course not hound by these expressions of opinion.”

V
The Circuit Court of Appeals has decided an important

question of local law in a way in conflict with applicable lo
cal decisions, in that the said Court held that notwithstand
ing petitioners were not acting under any statutory author
ity in connection with the said primary “ they were election
officers of the state cle facto if not de jure ; whereas, in the
case of Carolina National Bank v. State of South Carolina
(60 S. C. 465, 38 S. E. 629), the Supreme Court of South
Carolina expressly held that:

“ * * * If authorized by valid law, the officer’s
act is the State’s act; if not so authorized, the officer’s
act is his own. * * * The State can only act under its
Constitution and through its legislative enactments
pursuant thereto.”

VI
The decision of the Circuit Court of Appeals is in di

rect conflict with the decision of the Supreme Court of Ar
kansas in the case of Robinson v. Holman, 181 Ark. 482,
26 S. W. (2d), 66, Arkansas Sup. Ct., March 24, 1930, in
which the writ of certiorari was denied by the United States
Supreme Court for lack of jurisdiction (282 U. S. 804, 75 L.

10 Rice et al., Petitioners, v. Elmore, Respondent

Rice et al., Petitioners, v. Elmore, Respondent 11

Ed. 722), and which expressly held that the right to vote in
a Democratic primary where the Democratic primary was
not regulated by statute is not protected by the Federal
Constitution.

Wherefore, your petitioners pray that a writ of cer
tiorari issue under the seal of this Court, directed to the
Circuit Court of Appeals for the Fourth Circuit, command
ing said Court to certify and send to this Court a full and
complete transcript of the record and of the proceedings of
the said Circuit Court of Appeals for the Fourth Circuit
had in the case numbered and entitled on its docket, No.
5664, Clay Rice et al., Appellants, v. George Elmore, on be
half of himself and others similarly situated, Appellee, to
the end that this cause may be reviewed and determined
by this Court as provided for by the statutes of the United
States; and that the judgment herein of said Circuit Court
of Appeals for the Fourth Circuit be reversed by the Court,
and for such further relief as to this Court may seem
proper.

CHRISTIE BENET,
IRVINE F. BELSER,
CHARLES B. ELLIOTT,
W ILLIAM P. BASKIN,
P. H. McEACHIN,
J. PERRIN ANDERSON,
W. BRANTLEY HARVEY,
EDGAR A. BROWN,
YANCEY A. McLEOD,

Counsel for Petitioners.

Dated March t f . ., 1948.

BRIEF IN SUPPORT OF
PETITION

INDEX TO BRIEF
P age

The Opinion Below ............................................................. 15
Jurisdiction ........................................................................... 15
Statement of the C a se ......................................................... 18
Specification of Errors ....................................................... 18
Argument:

Point A. The District Court and the Circuit Court
of Appeals did not have Jurisdiction to Render
a Declaratory Judgment and Injunction Per
manently Restraining the Petitioners and their
Successors in Office............................................... 19

Point B. The Petitioners at the times Complained
of were not Agents or Officers of the State . . . . 22

Point C. The Democratic Party of South Carolina
at the times Complained of was a voluntary
political association with unrestricted choice
of membership....................................................... 23

Point D. The decisions in Smith v. Allwright and
United States v. Classic, supra, depended on the
determination that under the statutes involved
the primary was required, regulated and con
trolled in such manner as to make it a part of
the election process ............................................. 24

Point E. The petitioners are entitled to the pro
tection accorded by Amendment I to the United
States Constitution of the right “ peaceably to
assembly” ............................................................... 24

Point P. The respondent did not have the consti
tutional right to vote in the Democratic primary
in the State of South Carolina and the Court
erred in so holding because at the times com
plained of the primary was not created, regu
lated, required or controlled by any State
statute or law but was conducted “ merely un
der party rules” .................................................. 25

Conclusion ............................................................................. 27

Supreme Court of the United States

OCTOBER TERM, A. D., 1947

No.

CLAY RICE et al., Petitioners,

versus

GEORGE ELMORE, on B ehalf of H imself and Others
Similarly Situated, R espondent

BRIEF IN SUPPORT OF PETITION FOR WRIT OF
CERTIORARI

THE OPINION BELOW

The opinion of the United States Circuit Court of Ap
peals for the Fourth Circuit, dated December 30, 1947, is
printed in full in the record. (R. 114.)

JURISDICTION

The jurisdiction of this Court is invoked under Sec
tion 240 (a) of the Judicial Code (28 U. S. C. 347). Judg
ment was entered in this case by the United States Circuit
Court of Appeals on December 30, 1947. (R. 123.) The

16 Rice et al., Petitioners, v. Elmore, Respondent

petition for rehearing was denied on February 6, 1948. (R.
135.)

The Circuit Court of Appeals has in this case “ decided
an important question of Federal law, which has not been,
but should be, settled by this Court” . (Supreme Court Rule
38 (5)(b).) In Smith v. Allwright, 321 U. S. 647, 88 L. Ed.
987, this Court, referring to Nixon v. Condon, 286 U. S. 73,
76 L. Ed. 985, held: “ The question of the inherent power of
a political party in Texas ‘ without restraint by any law to
determine its own membership’ was left open” . (88 L. Ed.
994.) The question there left open has not been settled by
any decision of this Court. In the case at bar the primary
held on August 13, 1946, was not required, regulated or
controlled in any manner by any law in the State of South
Carolina. The Circuit Court of Appeals for the Fourth Cir
cuit held: “ It is true, as defendants point out, that the pri
mary involved in Smith v. Allwright was conducted under
the provisions of state law and not merely under party
rules, as in the case here, but we do not think this is a con
trolling distinction.” (R. 119.) The Circuit Court of Ap
peals based its decision on a dictum in United States v.
Classic, 313 U. S. 299, 85 L. Ed. 1368, and held that the pe
titioners, defendants in the trial Court, were subject to the
constitutional limitations invoked against them “ not only
where state law has made the primary an integral part of
the procedure of choice, but also where in fact it effectively
controls the choice, as is unquestionably true in South
Carolina.” (R. 121.) The ratio decidendi of United States
v. Classic, swpra, however, is pointedly stated by this Court
in Smith v. Allwright, supra, wherein this Court interpreted
the Classic decision as holding that the Congressional power
to regulate the primary existed only “ where the primary
is by law made an integral part of the election machinery”

Rice et al., Petitioners, v. Elmore, Respondent 17

and that the decision in the Classic case “ depended, too,
on the determination that under the Louisiana statutes
the primary was a part of the procedure for choice of Fed
eral officials.”

2
The Circuit Court of Appeals has in this case ‘ ‘ decided

an important question of Federal law in a way probably in
conflict with applicable decisions of this Court” . (Supreme
Court Rule 38 (5)(b).) The decision under review holds
that the primary involved in Smith v. Allwright, supra, was
conducted under the provisions of State law and 11 not mere
ly under party rules, as is the case here, but we do not think
this a controlling distinction” . The decision is therefore in
conflict with the decisions of this Court, particularly Smith
v. Allwright, supra, in which this Court held “ the party
takes its character as a state agency from the duties im
posed upon it by state statute” * * * “ it is state ac
tion which compels. ’ ’

3
The Circuit Court of Appeals has in this case rendered

“ a decision in conflict with the decision of another Circuit
Court of Appeals on the same matter” and “ has decided
an important question of local law in a way probably in
conflict with applicable local decisions” . (Supreme Court
Rule 38 (5)(b).) The decision of the Circuit Court of Ap
peals is in conflict with the decision of the Circuit Court
of Appeals for the Fifth Circuit in the case of Chapman
v. King, 154 Fed. (2d), 460 (Cert, denied), 66 Sup. Ct. 905,
90 L. Ed. 1025, April 1, 1946, which held in effect that in
the absence of statutory regulation making the party an
agency of the State, members of political parties had an
unrestricted choice of membership. The decision of the
Circuit Court of Appeals is likewise in conflict with appli
cable local decisions. In Carolina National Bank v. State of

18 Rice- et al., Petitioners, v. Elmore, Respondent

South Carolina (60 S. C. 465, 38 S. E. 629), the Supreme
Court of South Carolina held: “ * * * If authorized by
valid law, the officer’s act is the State’s act; if not so au
thorized, the officer’s act is his own * * *. The State
can only act under its Constitution and through its legis
lative enactments pursuant thereto.”

STATEMENT OF THE CASE

This has already been stated in the preceding petition,
which is hereby adopted and made a part of this brief.

SPECIFICATION OF ERRORS

The Circuit Court of Appeals for the Fourth Circuit
erred in holding:

Point A
That it had jurisdiction to render a declaratory judg

ment and injunction, permanently restraining the petition
ers and their successors in office for the reason that there
was no state action involved, and that the primary was not
required by statute and was not an election.

Point B
That the petitioners at the times complained of were

agents or officers of the State in such manner as to sub
ject them to the jurisdiction of the Court.

Point C
That the Democratic Party of South Carolina was not

a voluntary, political association with unrestricted choice
of membership.

Point D
That the decisions in Smith v. Allwright and United

States v. Classic, supra, governed and controlled the case
at bar and that the petitioners were subject to the consti

Rice et aL, Petitioners, v. Elmore, Respondent 19

tutional restraints invoked against them when in fact the
primary was conducted “ merely under party rules” and
not under the provisions of State law.

Point E
That petitioners at the times complained of were not

entitled to the protection accorded by Amendment I to the
United States Constitution of the right “ peaceably to as
semble” .

Point F
That the respondent has a constitutional right to vote

in the Democratic primary in the State of South Carolina
where the Democratic party is wholly unregulated by State
statute and the primary is conducted merely under party
rules.

ARGUMENT

Point A
The District Court and the Circuit Court of Appeals did

not have jurisdiction to render a declaratory judgment and
injunction permanently restraining the petitioners and
their successors in office.

The jurisdictional questions were presented in the Dis
trict Court by motion and by answer (R. 9, 12), and also
preserved in the Circuit Court of Appeals. (R. 107.) The
position of petitioners is that the Courts below lacked jur
isdiction because there was no state action and because
there were no state statutes requiring and regulating the
primary as a necessary part of the electoral process.

In Smith v. Allwright, supra, the alleged bases of jur
isdiction were on the same grounds as stated in the com
plaint in the cause before the Court and this Court held:
“ The suit was filed in the District Court of the United
States for the Southern District of Texas, which had juris
diction under Judicial Code Section 24, subsection 14, 28

20 R ice et al., Petitionees, v. Elmore, Respondent

U. S. C. A., Section 41 (14), 7 FCA, title 28, Section 41
(14)” . Jurisdiction was denied by this Court on all other
grounds.

The said section is as follows:
“ Suits to redress deprivation of civil rights. Four

teenth. Of all suits at law or in equity authorized by
law to be brought by any person to redress the depriva
tion, under color of any law, statute, ordinance, regu
lation, custom, or usage, of any State, of any right,
privilege, or immunity, secured by the Constitution of
the United States, or of any right secured by any law
of the United States providing for equal rights of citi
zens of the United States, or of all persons within the
jurisdiction of the United States.” (Judicial Code, Sec.
24; 28 IT. S. C. A. Sec. 41 (14) ).
To the same effect is the following section:

“ 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 Constitution
and laws, shall be liable to the party injured in an ac
tion at law, suit in equity, or other proper proceeding
for redress.” (United States Code, Title 8, Sec. 43,
U. S. C. A. 43.)
The Circuit Court of Appeals in the case at bar held

that the petitioners at the times complained of were not
acting “ under the provisions of State law” but “ merely un
der party rules.” (R. 119.)

“ The party takes its character as a state agency
from the duties imposed upon it by state statute.
* * * It is state action which compels.” Smith v.
Allwright, supra.

Rice et al., Petitioners, v. Elmore, Respondent 21

The decision in the Classic case, supra, was placed
squarely on the ground that the primary in Louisiana was
controlled and regulated by statute in such manner as to
make it an essential part of the statutory process of elec
tions. “ 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 the Act.” “ * * * Misuse of power,
possessed by virtue of state law and made possible only be
cause the wrongdoer is clothed with the authority of state
law, is action taken ‘ under color o f ’ state law.” (Emphasis
added.)

“ The decision” (referring to the Classic case) “ de
pended, too, on the determination that under the Louisiana
statutes the primary was a part of the procedure for the
choice of Federal officials.” (Italics added.) Smith v. All-
wright, supra.

“ It is state action of a particular character that is pro
hibited. Individual invasion of individual rights is not the
subject-matter of the Amendment.” (Emphasis added.)
Civil Rights Cases, 109 U. S. 3, 27 L. Ed. 836.

In Barney v. City of New York (1904), 193 U. S. 430,
48 L. Ed. 737, “ complainant’s grievance was that the law
of the State had been broken, and not a grievance inflicted
by action of the legislative or executive or judicial depart
ment of the State.” The Supreme Court affirmed the judg
ment of the trial court den3ring jurisdiction on the ground
that no state action was involved.

East St. Louis Railway v. City of East St. Louis, 13
F. (2d) 852, held, relying on the Barney case, supra.

“ Before an agency of the state can be said to be
acting for the state, there must be a law granting it
power to act. ’ ’

22 R ice et al., Petitioners, v. Elmore, Respondent

In Snowden v. Hughes, 321 U. S. 1, 88 L. Ed. 497, this
Court held, concurring opinion by Mr. Justice Frankfurter
(p. 507), “ but to constitute such unjust discrimination the
action must be that of the state” .

We submit with confidence that the District Court and
the Circuit Court of Appeals for the Fourth Circuit lacked
jurisdiction to render a declaratory judgment and issue a
permanent injunction against the petitioners and that the
assumption of jurisdiction for the purposes indicated con
stituted an unwarrantable and unconstitutional extension of
the scope of the statutes conferring jurisdiction on the Fed
eral Courts, and squarely in conflict with the provisions of
the Fourteenth, Fifteenth and Seventeenth Amendments
and Article I, Sections 2 and 4 of the United States Consti
tution, which merely prohibit “ state action” and not the
acts of individuals who are not acting under color of state
law.

Point B
The petitioners at the times complained of were not

agents or officers of the State.
The Circuit Court of Appeals held (R. 120): “ When

these officials participate in what is part of the state’s elec
tion machinery, they are election officers de facto if not
de jure and as such must observe the limits of the Consti
tution” . But the same Court also held that the primary in
volved in the case at bar was conducted “ merely under
party rules” and not “ under the provisions of state law.”

Petitioners respectfully submit that the Court over
looked and disregarded the uniform decisions of the Su
preme Court of the United States, all of which hold that
a primary has been deemed a state agency only when reg
ulated and required by state statute. The Court overlooked
and disregarded the express holding in Smith v. Allwright,
supra, that

Rice et al., Petitioners, v. Elmore, Respondent 23

“ The party takes its character as a state agency
from the duties imposed upon it by state statutes;
* * * it is state action which compels. ”

‘ ‘ But to constitute such unjust discrimination the
action must be that of the state” . Snowden v. Hughes,
supra.

And, likewise, the Court overlooked and disregarded
the law in South Carolina as stated by the Supreme Court
of that State:

“ * * * I f authorized by valid law, the officer’s
act is the State’s act; if not so authorized, the officer’s
act is his own.” Carolina National Bank v. State of
South Carolina (60 S. C. 465, 38 S. E. 629).

Point C
The Democratic Party of South Carolina at the times

complained of was a voluntary political association with
unrestricted choice of membership. The uncontradicted evi
dence conclusively shows that the Democratic Party and the
Democratic primary in South Carolina are wholly unregu
lated by statute.

The Circuit Court of Appeals held that
11 The use of the Democratic Primary in connection

with the general election in South Carolina provides,
as has been stated, a two step election machinery for
that state; * *

This language, we submit, does not square with the
record in the case, the stipulation of facts (E. 33) which
establish that no primary is required by any statute of
the State of South Carolina. Indeed the same Court held
(R. 119) that the primary involved in the case at bar was
conducted merely “ under party rules” and not “ under
the provisions of state law” .

“ The party takes its character as a state Agency
from the duties imposed upon it by state statutes;

2 4 R ice et al., Petitioners, v. Elmore, Respondent

* * * it is state action which compels” . Smith v.
Allwriqht, supra.

Point D
The decisions in Smith v. Allwright and United States

v. Classic, supra, depended on the determination that un
der the statutes involved the primary was required, regu
lated and controlled in such manner as to make it a part
of the election process.

How can the quoted language from the decision of the
Circuit Court of Appeals of the Fourth Circuit square with
the holding in Smith v. Allwright, supra, that

“ The party takes its character as a state agency
from the duties imposed upon it by state statutes;
it is state action which compels” .

and that
“ the decision in the Classic case depended, too, on the
determination that under the Louisiana statutes, the
primary was a part of the procedure for choice of Fed
eral officials.” (88 L. Ed. 995.)

Point E
The petitioners are entitled to the protection accorded

by Amendment I to the United States Constitution of the
right “ Peaceably to Assemble” .

“ The right of peaceable assembly is a right cog
nate to those of free speech and free press and is equal
ly fundamental. The Constitution does not confer the
right, hut guarantees its free exercise. The right of the
people peaceably to assemble for lawful purposes ex
isted long before the adoption of the Constitution of
the United States. It is and always has been one of the
attributes of citizenship under a free government, and
is found wherever civilization exists. The very idea of
a government, republican in form, implies a right on
the part of its citizens to meet peaceably for consulta
tion, with respect to public affairs and to petition for

Rice et al., Petitioners, v. Elmore, Respondent 25

a redress of grievances” . 11 Am. Jur., Constitutional
Law, Sec. 325, p. 1119.

“ The application of the constitutional right of as
sembly and petition has affected, for the most part, po
litical administration and election legislation. It has
been held that a political convention is an assemblage
within the meaning of constitutional provisions guar
anteeing the right of peaceable assembly and petition
and that a statute declaring that candidates for judicial
and educational offices shall not be nominated, in
dorsed, recommended, criticized, or referred to in any
manner by any political party, convention, or primary
violates such constitutional provisions. The right to
sign and circulate a petition for the impeachment of
a public officer is likewise safe-guarded by these con
stitutional provisions. The right of assemblage, how
ever, does not in any way prevent the enactment of uni
form primary laws, under which, in lieu of congregat
ing at caucuses and conventions and selecting delegates
that represent them, the voters may assemble at the
polls in the different polling places and there express
their choice of candidates.” 11 Am. Jur., Constitutional
Law, Sec. 325, p. 1121.

“ The right of peaceable assembly is a right cog
nate to those of free speech and free press and is equal
ly fundamental” . Be Jonge v. Oregon, 299 U. S. 353,
364, 81 L. Ed. 278.
In discussing the freedom of the press and its necessity

in a democracy, Jefferson said: “ Our liberty depends on
the freedom of the press, and that cannot be limited without
being lost.” A fortiori it would seem that freedom of as
sociation for political purposes must be as unrestricted
as freedom of the press.

Point'F
The respondent did not have the constitutional right

to vote in the Democratic Primary in the State of South Car
olina and the Court erred in so holding because at the times

26 Rice et al., Petitioners, v. Elmore, Respondent

complained of the primary was not required, regulated or
controlled by any State statute or law but was conducted
“ merely under party rules.”

No decision of this Court sustains the right of the re
spondent to vote in a preferential primary when such pri
mary is conducted not under the “ provisions of state law” ,
but “ merely under party rules” .

No decision of this Court holds that a preferential pri
mary conducted not under the “ provisions of state law”
but “ merely under party rules, as is the case here” is a
step in the election process.

No decision of this Court holds that the petitioners at
the times complained of were officers or agents of the State
of South Carolina.

“ The State can only act under its Constitution
and through its legislative enactments pursuant there
to” . Carolina National Bank v. State of South Caro
lina, supra.

“ But to constitute such unjust discrimination the
action must be that of the state.” Snowden v. Hughes,
supra.

“ The party takes its character as a state agency
from the duties imposed upon it by state statutes;
* * * it is state action which compels.” Smith v.

Allwright, supra.
“ The Times, Places and Manner of holding Elec

tions 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 choosing
Senators.” Article I, Section 4, Clause 1 of the United
States Constitution.

The record conclusively establishes and the Circuit
Court of Appeals held that the Legislature of South Caro

lina had expressly repealed all statutes regulating or con
trolling primaries and that the only provision in the State
Constitution dealing with primaries had been repealed and
that the primary in the case at bar was conducted not un
der the “ provisions of state law” but “ merely under party
rules” . (R. 119.)

“ We there held that Section 4 of Article 1 of the
Constitution authorized Congress to regulate primary
as well as general elections * * * where the pri
mary is by law made an integral part of the election
machinery” . (Emphasis added.) Smith v. Allivright,
supra (88 L. Ed. 995.)

CONCLUSION

The ratio decidendi of the Smith-Allwright and Classic
cases, supra, is that where the statutes of the state have
made the electoral process consist of two necessary steps,
one, the primary, and two, the general election, then the
right to vote in the primary is equally protected with the
right to vote in the general election. It is clear that the re
spondent’s exclusion from voting in the primary was whol
ly a result of party action and not of state action, because
the record shows that in South Carolina there is no legal
requirement that a primary (must be held before a general
election, and therefore there is no two-step process. In its
opinion the District Court held that there is now no stat
utory control either civil or criminal of the Democratic pri
mary and that the Democratic party is no longer governed
by State statutes, and further, that there is now no law
in South Carolina, in its Constitution or on its statute
books, governing primaries. (R. 85.)

In its opinion the Circuit Court of Appeals of the
Fourth Circuit held:

R ice et al., Petitioners, v. Elmore, Respondent 27

“ It is true, as defendants point out, that the pri
mary involved in Smith v. Allwright was conducted
under the provisions of state law and not merely under
party rules, as is the case here, but we do not think this
a controlling distinction.” (Emphasis added.) (R. 119.)

It is clear that the judgment under review does not
square with the decisions of this Court and denies the sixty
petitioners, who were defendants in the District Court, the
constitutional rights both with respect to their right
‘ ‘ peaceably to assemble” and with respect to the rights
reserved under the Tenth Amendment to the United States
Constitution.

The Court is not here concerned with a question of
policy but Avith a question of constitutional power. Since
at the times complained of by the respondent, no statute
of the State of South Carolina regulated or controlled the
primaries, no provision of the Constitution or statute in
voked in the case at bar can be soundly held under the uni
form decisions of this Court to have deprived the petition
ers of their right as free men in a democracy to develop
their faculties of thought and to participate in the activi
ties of a political party to the end that the deliberative
forces should pre\mil over the arbitrary. The assumption
of petitioners soundly supported, as Ave believe, by the pro
visions of the United States Constitution, is that at the
times complained of they had the freedom to think as they
willed and to express their thought as a means indispens
able to the discovery and spread of political truth.

It is therefore respectfully submitted that this case is
one calling for the exercise by this Court of its supervisory

28 Rice et at., Petitioners, v. Elmore, Respondent

R ice et al., Petitioners, v. Elmore, Respondent 29

powers, by granting a writ of certiorari and thereafter re
viewing and reversing said decision.

CHRISTIE BENET,
IRVINE F. BELSER,
CHARLES B. ELLIOTT,
W ILLIAM P. BASKIN,
P. H. McEACHIN,
J. PERRIN ANDERSON,
W. BRANTLEY HARVEY,
EDGAR A. BROWN,
YANCEY A. McLEOD,

Attorneys for Petitioners.

PETITION FOR REHEARING

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5664

CLAY RICE, et al., A ppellants,

versus

GEORGE ELMORE, on B ehale of H imself and Others
Similarly Situated, A ppellee

A ppeal from the D istrict Court of the U nited States
for the E astern D istrict of S outh Carolina,

at Columbia

CHRISTIE BENET,
IRVINE F. BELSER,
CHARLES B. ELLIOTT,
W. P. BASKIN,
P. H. McEACHIN,
J. PERRIN ANDERSON,
W. BRANTLEY HARVEY,
EDGAR A. BROWN,
YANCEY A. McLEOD,

A ttorneys for A ppellants.

The R. L. Bryan Company, Legal Printers, Columbia, S. C.

INDEX
P age

Petition for Rehearing ....................................................... 1

Certificate of C ounsel......................................................... 8

(i)

TABLE OF CASES

Page

Bill of Rights, Amendment 1, U. S. Constitution............ 2

Carolina Nat. Bank v. State of South Carolina 60 S. C.,
465 ................................................................................... 5

Civil Rights C a ses ............................................................... 7

Smith v. Allwright, 321 U. S., 647, 88 L. Ed., 987 3, 4, 5, 6

Snowden v. Hughes, 321 U. S., 15, 88 L. Ed., 507 ........ 2, 5

Title 28, 41 sub-see. 14 U. S. C. A ....................................... 7

U. S. v. Classic, 313 U. S., 299, 341, 85 L. Ed., 13 68 .... 3, 5

U. S. Constitution, 14th and 15th Amendm ents........... 6

U. S. v. Nichols, etc., 109 U. S., 3, 27 L. Ed., 836............ 7

(iii)

PETITION FOR REHEARING

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5664

CLAY RICE, et al., A ppellants,

versus

GEORGE ELMORE, on Behalf of H imself and Others
Similarly S ituated, A ppellee

Appeal from the D istrict Court of the U nited States
for the E astern D istrict of S outh Carolina,

at Columbia

PETITION FOR REHEARING

Come now the appellants in the above-entitled cause
and respectfully petition this Honorable Court for a re
hearing therein, and as grounds therefor state:

1. That this Court entirely overlooked and failed to
comment upon Point 29 (page 112 Appendix for Appel
lants) which reads as follow s:

“ The Court erred in failing to hold that the Courts
are under a positive obligation to protect the tradi
tional and Constitutional rights of the citizens of this
State and of the Democratic party of South Carolina

2 Rice et al., A ppellants v . Elmore, A ppellee

to choose membership of their party under the Consti
tutional right to life, liberty and the pursuit of happi
ness and under the constitutional provision ‘ peaceably
to assemble (Amendment No. 1 of the United States
Constitution.) ”
This point was made before the Court; it was referred

to on page 46 of the brief for Appellants and presented
fully in the oral argument before the Court. The sixty
appellants who were the defendants below respectfully, hut
earnestly insist that they had a right to have this Court
decide whether they are entitled to the protection of the
first section of the Bill of Bights.

2. That in the opinion rendered this Court says
(page 4 ):

“ The question presented for our decision is
whether, by permitting a party to take over a part of
its election machinery, a state can avoid the provisions
of the Constitution forbidding racial discrimination in
elections and can deny to a part of the electorate, be
cause of race and color, any effective voice in'the gov
ernment of the state.”
The appellants submit that in making the statement

quoted this Court overlooked and disregarded the evidence
in the case which showed that the State of South Carolina
had never by any action on its part permitted the Demo
cratic party to take over a part of its ejection machinery.
Snowden v. Hughes, 321 U. S., 15, 88 L. Ed., 507, see Mr.
Justice Frankfurter’s concurring opinion.

3. That in the opinion rendered this Court says
(page 5 ):

“ The party may, indeed, have been a mere private
aggregation of individuals in the early days of the Be-
public, but with the passage of the years, political par
ties have become in effect state institutions, govern-

mental agencies through which sovereign power is ex
ercised by the people.”

The appellants respectfully submit that in making the
foregoing statement the Court overlooked and disregarded
the uniform decisions of the Supreme Court of the United
States cited in appellants’ brief, all of which hold that a
primary has been deemed a state agency only when regu
lated and required by state statute. Smith v. Allwriglit, 321
U. S., 647, 88 L. Ed., 987, U. S. v. Classic, 313 U. S., 299,
,341, 85 L. Ed., 1368.

4. That in the opinion rendered this Court says
(page 6):

“ * * * In Classic v. United States, 313 U. S.,
299, decided in 1941, however, it was expressly held
that a primary was an election within the meaning of
Art. 1, Sec. 4 of the Constitution; and the court pointed
out that the Neivberry case could not he considered
authority to the contrary. * * * ”

The appellants respectfully submit that in making the
foregoing statement the Court overlooked and disregarded
the fact that the decision in the Classic case was expressly
predicated on statutory control of the primary by the state
of Louisiana.

In Smith v. Allwriglit, supra, the Supreme Court of
the United States interpreted the Classic case as holding
that the Congressional power to regulate the primary ex
isted only “ where the primary is by law made an integral
part of the electoral machinery” and that the decision in
the Classic case “ depended too on the determination that
under the Louisiana statutes, the primary was a part of
the procedure for choice of federal officials” . 88 L. Ed.,
page 995.

0
R ice et al., A ppellants v. Elmore, A ppellee 3

4 R ice et al., A ppellants v. Elmoee, A ppellee

5. That in the opinion rendered this Court says
i)(page 8 ):

“ It is true, as defendants point out, that the
primary involved in Smith v. Allwright was conducted
under the provisions of state law and not merely under
party rules, as is the case here, hut we do not think
this is a controlling distinction. * * *”

The appellants respectfully submit that in the forego
ing statement the Court overlooked and disregarded the
basic principle on which the case of Smith v. Allwright was
determined, to-wit, that the State of Texas (by statutory
enactment) had put its power behind the rules of the party
and had adopted the primary as an integral part of its
electoral machinery. Appellants further respectfully sub
mit that this Court, in the sentence quoted, also overlooked
and disregarded the evidence in the case below which
showed conclusively that there was no statute in South Car
olina in August, 1946 governing primaries.

How can the quoted language from this Court square
with the language in the Smith v. Allwright case that “ the
party takes its character as a state agency from the duties
imposed upon it by state statute; * * * it is state ac
tion which compels” .

6. That in tire opinion rendered this- Court says
(page 9 ):

“ * * * When these officials participate in what
is a part of the state’s election machinery, they are
election officers of the state de facto if not de jure, and
as such must observe the limitations of the Constitu
tion. Having undertaken to perform an important func
tion relating to the exercise of sovereignty by the peo
ple, they may not violate the fundamental principles
laid down by the Constitution for its exercise. * * *”

Rice et al., A ppellants v. Elmore, A ppellee 5

The appellants respectfully submit that in the forego
ing statement the Court overlooked and disregarded the
decisions of the United States Supreme Court and the Su
preme Court of South Carolina, both holding that those
who act for the state as its agents can only do so under
legislative authority specifically granted. In the case of
Carolina National Bank v. State of South Carolina, 60 S.
C., 465, in which the acts of W. A. Neal, the Superintendent
of the South Carolina Penitentiary was being considered,
the Supreme Court of South Carolina said:

“ * * * If authorized by valid law, the officer’s
act is the State’s act; if not so authorized, the officer’s
act is his own. * * *” Again “ * * * The State
can only act under its Constitution and through its
legislative enactments pursuant thereto. * * * ”
In Snowden v. Hughes, 321 U. S., 1, 88 L. Ed., 497 in

a concurring opinion Mr. Justice Frankfurter said (507):

“ But to constitute such unjust discrimination the
action must be that of the state. Since the state, for
present purposes, can only act through functionaries,
the question naturally arises what functionaries, act
ing under the circumstances, are to be deemed the state
for purposes of bringing suit in the federal courts on
the basis of illegal state action. * * *”
Appellants further submit that the above-quoted lan

guage from this Court does not square with the language
in Smith v. Allwright that “ The party takes its character
•as a state agency from the duties imposed upon it by state
statutes; * * * it is state action which compels’ ’.

7. That in the opinion rendered this Court says
(page 8):

“ It is pointed out in the case of United States v.
Classic, supra, 313 U. S., 299, that the right to vote in
the primary and to have one’s vote counted is to be pro-

6 Rice et al., A ppellants v. Elmore, A ppellee

tected, not only where state law has made the primary
an integral part of the procedure of choice, but also
where in fact it effectively controls the choice, as is un
questionably true in South Carolina. * * *”
It is respectfully submitted that this Court overlooked

and disregarded the fact that the Supreme Court of the
United States in Smith v. Allwright, supra, in construing
the Classic case held that the 14th and 15th Amendments
applied only “ where the primary is by law made an integral
part of the electoral machinery” and further that the de
cision in the Classic case “ depended, too, on the determi
nation that under the Louisiana statutes, the primary was
a part of the procedure for choice of federal officials” .

8. That in the opinion rendered this Court says
(page 4 ):

“ That the primary when conducted by the party
fulfilled the same function in the election machinery of
the state and was managed in practically the same way
as when conducted under state law, does not admit of
doubt.”
It is submitted that, in making the foregoing statement,

the Court overlooked and disregarded the fact that the
State of South Carolina, by the repeal of all statutes regu
lating the primary, removed the power of the State from
the primary and in so doing repealed all the penal statutes
regulating the same, and overlooked and disregarded the
express holding in Smith v. Allwright that

“ The party takes its character as a state agency
from the duties imposed upon it by state statutes;
* * * it is state action which compels.”
9. That in the opinion rendered this Court says

/(page 9 ):
“ * * * Elections in South Carolina remain a

two step process, whether the party primary be ac-

Rice et al., A ppellants v. Elmore, A ppellee 7

counted a preliminary of the general election, or the
general election be regarded as giving effect to what
is done in the primary; * * *”

and again says:
‘ ‘ The use of the Democratic primary in connection

with the general election in South Carolina provides,
as has been stated, a two step election machinery for
that state; * * * ”
Appellants submit that this language does not square

with the record in this case which shows that no primary
is required under South Carolina election machinery and,
in fact, that general elections have from time to time
been held in South Carolina without any primary being
held in connection therewith.

10. Appellants submit that this Court disregarded and
overlooked the principle laid down in the famous Civil
Rights Cases, decided in 1883 by the Supreme Court of
the United States, wherein it was expressly held that the
Thirteenth and Fourteenth Amendments did not undertake
“ to adjust what may he called the social rights of men and
races in the community” or to “ apply to every act of dis
crimination Avhich a person may See fit to make as to the
quests he will entertain, or as to the people he will take
into his coach or cab, or car, or admit to his concert or
theater, or deal with in other matters of intercourse or
business” . U. S. v. Nichols, etc., 109 U. S., page 3, 27 L.
Ed., 836.

11. Appellants respectfully submit that in holding that
it had jurisdiction, the Court overlooked the decision in
Smith v. Allwriglit, supra. In that case the alleged bases
of jurisdiction were on the same grounds stated in the
complaint in the cause before the Court and the Supreme
Court of the United States expressly affirmed the jurisdic
tion of the Court under Title 28, 41 sub-sec. 14 of U. S. C. A.

8 R ice e t al., A ppellants v . Elmore, A ppellee

The Supreme Court disallowed jurisdiction upon all other
alleged grounds. The basis of jurisdiction in Smith v. All-
wright was the fact that defendants were acting under a
state statute. In the instant case the Court itself finds that
there were no statutes in South Carolina affecting prima
ries at the times alleged in the complaint.

WHEREFORE, petitioners pray:
1. That a rehearing be granted in this case; and
2. That the mandate be stayed pending the determi

nation of the Court on the petition, and, if this be adverse,
for a period of ten days thereafter.

Respectfully submitted,
CHRISTIE BENET,
IRVINE F. BELSER,
CHARLES B. ELLIOTT,
W. P. BASKIN,
P. H. McEACHIN,
J. PERRIN ANDERSON,
W. BRANTLEY HARVEY,
EDGAR A. BROWN,
YANCEY A. McLEOD,

A ttorneys for A ppellants.

STATE OP SOUTH CAROLINA, \ CERTIFICATE OF
COUNTY OF RICHLAND. COUNSEL
The undersigned counsel filing the above petition for

rehearing certify, each for himself, that it is presented in
good faith and not for delay.

CHRISTIE BENET,
IRVINE F. BELSER,
CHARLES B. ELLIOTT,
W. P. BASKIN,

All of Columbia, S. C.

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5664

REPLY BRIEF FOR APPELLANTS

CLAY RICE et al., A ppellants,

versus
GEORGE ELMORE, On B ehalf of H imself and Others

Similarly S ituated, A ppellee

On A ppeal from the D istrict Court of the U nited S tates
for the E astern D istrict of S outh Carolina

CHRISTIE BENET,
Columbia, S. C.,

IRVINE F. BELSER,
Columbia, S. C.,

CHARLES B. ELLIOTT,
Columbia, S. C.

W ILLIAM P. BASKIN,
Bishopville, S. C.,

P. H. McEACHIN,
Florence, S. C.,

J. PERRIN ANDERSON,
Greenwood, S. C.,

W. BRANTLEY HARVEY,
Beaufort, S. C.,

EDGAR A. BROWN,
Barnwell, S. C.,

YANCEY A. McLEOD,
Columbia, S. C.,

Attorneys for Appellants.

FILED

NOV 18 1947

CLAUDE M. DEAN
nT.ramr

The R. L. Bryan Company, Lepal Printers, Columbia, S. C.

SYNOPSIS AND INDEX
Page

I. Appellee’s Argument Has Not Answered Appel
lants’ Contentions ............................................... 1

II. Classic Case Does Not Provide Any Alternative
Test But Based Upon Statutory Regulation
and Requirement of P rim a ry ............................... 2

III. Appellee’s Case Fails Because Democratic Party
Not Established as an Agency of the State by
State Statutes ....................................................... 4

IV. Appellee Unable to Show Necessary State Action
to Sustain Federal Jurisdiction.......................... 5

V. Repeal of State Statutes Work a Vital Change in
the Status of the Democratic Party by Re
moving the Controlling Hand of the State. . . . 7

VI. Appellee’s Argument Does Not Even Challenge
the Controlling Decision in the Civil Rights
Cases ....................................................................... 8

VII. Appellants’ Right to Limit Democratic Party
and Primary to White Members Guaranteed by
United States Constitution .................................. 11

( i ) j

TABLE OF CASES
Page

Board of Education v. Barnette, 319 U. S. 624 (1943).. 13
Butts v. Merchants & M. Transp. Co., 230 U. S. 132... 11
Barnet v. City of New York, 193 U. S. 438, 48 L. Ed. 740 11
Buchanan v. Warley, 245 U. S. 79, 62 L. Ed. 162............ 11
Chapman v. King, 154 Fed. (2d) 460 (Cert. Denied), 66

Sup. Ct. 905, 90 L. Ed. 1025, April 1, 1946 . . . .6, 14
Civil Rights Cases, 109 U. S. 3, 27 L. Ed. 836 . . . .7, 9, 10
Classic Case, 313 IT. S. 299, 341, 85 L. Ed. 1368

1, 2, 3, 5, 9, 10
Corrigan v. Buckley, 271 U. S. 330, 70 L. Ed. 972 .......... 11
Frank v. Mangum, 237 U. S. 328, 59 L. Ed. 980 .............. 11
Gradwell Case, 243 U. S. 487, 61 L. Ed. 865 .................. 2
James v. Bowman, 190 U. S. 137, 47 L. Ed. 9 8 1 .......... 10
Logan v. U. S., 144 U. S. 290, 36 L. Ed. 429 ...... ............. 10
McCray v. IT. S., 195 U. S. 27, 49 L. Ed. 7 8 .................... 6
Newberry Case, 256 U. S. 232, 65 L. Ed. 9 1 3 .............. 2
Plessy v. Ferguson, 163 U. S. 546, 41 L. Ed. 259 ........ 10
Robinson v. Holman, 181 Ark., 428, 26 S. W. (2d), 66,

Arkansas Sup. Ct., March 24, 1930 (Cert. Denied,
282 U. S. 804, 75 L. Ed. 7 2 2 ) ..................................... 1

Smith v. All wright, 321 IT. S. 647, 88 L. Ed. 987
1, 5, 6, 8, 9, 10

Steele v. Louisville & Nashville Railroad, 232 U. S. 192 10
Tunstall v. Brotherhood of Locomotive Firemen, 323

U. S. 2 1 0 ....................................................................... 10
IT. S. v. Schwimmer, 279 U. S. 644 ................................. 13
Yu Cong Eng v. Trinidad, 271 U. S. 521, 70 L. Ed. 1059 11

(ii)

REPLY BRIEF FOR APPELLANTS

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5864

CLAY RICE et al.. A ppellants,

versus

GEORGE ELMORE, O n B ehalf of H imself and Others
S imilarly S ituated, A ppellee

On A ppeal from the D istrict Court of the U nited S tates
for the E astern D istrict of S outh Carolina

Appellee’s argument has not answered Appellants’
Contentions.

Our main brief on this appeal is based upon three (3)
principal points, to wit:

(1) That the Classic and Smith v. Allwright cases,
upon which the decision of the Court below is pitched, do not
in reality support appellee’s contention, and under the facts
of this case, where there are no statutes regulating or re
quiring the primary, become in fact authority for appel
lants.

(2) That the Federal Courts are without jurisdiction
of this case for the reason that the actions of the appellants
being wholly done in their capacity as private individuals
and as members of the Democratic party, there is no state
action involved.

2 Rice et al., A ppellants, v. Elmore et al., A ppellees

(3) That the appellants as members of a voluntary po
litical association, to wit: The Democratic Party of South
Carolina, were entirely within their rights in excluding the
appellee from membership in the said association and from
voting in the nominating primary.

It is submitted that appellee has not really met or an
swered any of the foregoing of appellants’ points. He has
not even undertaken to answer the first and third points.

Appellee has cited, and can cite, no case supporting his
views, where the primary, as in the case at bar, is wholly
unregulated by statute. He has not even undertaken to dif
ferentiate the Gradwell case (243 U. S. 487, 61 L. Ed. 865),
the Newberry case (256 U. S. 232, 65 L. Ed. 913), and Rob
inson v. Holman (181 Ark. 428, 26 S. W. (2d) 66, Arkansas
Sup. Ct.—March 24, 1930, Cert. Denied in 282 U. S. 804, 75
L. Ed. 722), which held that a nominating primary is not an
election within the meaning of the United States Constitu
tion.

- Classic case does not provide any alternative test but
based upon statutory regulation and requirement of pri
mary.

Appellee has sought to argue (see pages 14, 19-20, 24)
that the Classic case has placed the right of the elector to
vote in the primary upon two tests, and in the alternative;
basing his argument on this point upon the following sen
tence from the Classic case:

Rice et al., A ppellants, v . Elmore et al., A ppellees 3

In reality, however, this sentence must be read in the
light of the facts of the case and in the light of the other
portions of the opinion, so that the alleged alternative
clause therein contained should be qualified by the preced
ing and succeeding statements contained in the opinion (see
pages 16 and 17 of our main brief), so that the entire clause
reads as follows:

“ * * * or where in- fact the primary effectively
controls the choice” ( i e., where “ * * * all political
parties are required to nominate their candidates for
representatives by 'direct primary elections” and
where “ * * * the Secretary of State is prohibited
from placing on the official ballot the name of any per
son as a candidate for any political party not nomi
nated in accordance with the provisions of the A ct”
and “ where the primary is by law made an integral
part of the electoral machinery.” )

This language, too, must be interpreted in the light of
the interpretation placed on the Classic case by the United
States Supreme Court itself to the effect that the Classic
case “ depended, too, on the determination that under the
Louisiana statutes the primary was a part of the procedure
for choice of federal officials,” (88 L. Ed. 995).

It is submitted that there is no real basis for contend
ing that the Classic case provides.for the right of an elector
to vote in a primary unless the primary is required and reg
ulated by state statutes.

The fact that the right to vote in the primary is de
termined by the presence of the law making it “ an integral
part of the electoral machinery” and not by the usual re
sults of the primary as affecting the general election, is con
clusively shown by the very next sentence of the opinion,
which says that where there is such a law, the right is se-

4 R ic e et al., A p p e l l a n t s , v . E l m o e e et al., A p p e l l e e s

cured whether the primary “ invariably, sometimes or never
determines the ultimate choice” .

In other words, the right to vote in the primary depends
not on the usual or probable result of the primary as affect
ing the ultimate choice, but on the law making the primary
an integral part of the electoral machinery.

Moreover, it is idle to contend that the general election
in South Carolina is a mere formality. Appellee’s own argu
ment shows (Pages 7 and 8) that in the years 1936 and
1944 nearly 40% as many votes were cast in the general
election for Senator and Congressmen as in the primary,
and that such votes cast for Senator in 1936 and 1944
amounted to 114,398 and 97,770 votes respectively.

Also, the record shows (appendix, page 39) that in
many sections of the State of South Carolina the negroes
far outnumber the whites, so that it would be perfectly
possible for the Negroes, if qualified electors, in such sec
tions to win the general election.

The record in this case conclusively establishes that no
law of the State of South Carolina requires the holding of
a primary at any time. The statutory law of South Carolina
does not require any primary prior to a general election,
and as a matter of fact, since the repeal of the primary as
well as before, there have been general elections held in the
State of South Carolina where no primary was previously
held for the selection of nominees— the most recent of which
was the general election in Anderson County for the elec
tion of a member of the House of Representatives—-there
having been no primary held prior to that general election
by any party.

I l l

Appellee’s case fails because Democratic Party not
established as an agency of the State by State Statutes.

R ic e et aL, A p p e l l a n t s , v. E l m o r e et al, A p p e l l e e s 5

Appellee in his argument (Pages 10-11, 17-18, 20-21),
apparently recognizing the impossibility of establishing the
Democratic Party as an agency of the State of South Caro
lina, advances the novel idea that the true approach to this
problem is to determine the “ relationship of the primary to
the electoral process” rather than “ whether or not the
party conducting the primary was an agency of the state” .
He seeks to argue that the Classic case and the Smith v. AU-
wright case made a vital change on this point.

It is submitted, however, that this contention is wholly
unsound and is in direct conflict with the language of the
Smith v. Allwright case itself.

The Smith v. Allwright case is expressly pitched upon
its holding and finding (see page 14 of our main argument)
“ that this statutory system for the selection of party nomi
nees * * * makes the party which is required to follow
these legislative directions an agency of the state * * *.
The party takes its character as a state agency from the du
ties imposed upon it by state statutes; * * *.”

It is submitted that no case can be found giving the con
stitutional right to vote in the primary, unless the state
has by statute made the party an agency of the state for the
purpose of conducting the primary.

Under the holding of the Smith v. Allwright case to the
effect that “ the party takes its character as a state agency
from the duties imposed upon it by the state statutes” , it
is clear that in this case, since there are no duties imposed
upon the party by state statutes, the party has no character
as a state agency.

Appellee unable to show necessary State action to sus
tain Federal jurisdiction.

Appellee in his argument, while at times suggesting
(see page 14) that his rights are protected against individ
uals as well as against state action, apparently in the main
concedes that state action is necessary in order to confer
jurisdiction on the Federal Courts (see pages 20 and 21).
He attempts to find such state action (see his argument,
pages 20-25) in (a) in alleged continuation of the Demo
cratic Party to perform the function of conducting a pri
mary, or (b) in the repeal of the state statutes regulating
the primary, or (c) in the inaction of the state in not regu
lating the primary for his benefit.

It is submitted that this contention is wholly unsound.
It has in large part already been answered fully in our main
brief (see pages 31-35).

Obviously whether the conduct of the primary is a
“ state function” , as contended by appellee in his argument
(page 22), must depend upon whether or not it is so made
by state statute. This is the clear result of the holding in the
Classic case, the Smith v. Alhvright case and the Chapman
v. King case.

As to the affirmative action of the State of South Caro
lina in repealing the regulatory statutes constituting state
action, it must be obvious that the state had as much right
to repeal the statutes in 1944 as it had in the first instance
to enact such statutes. Certainly the liability of appellants
in this case cannot be continued or sustained upon the the
ory that such repealing statutes were ineffective.

Even if the motive of the legislature in repealing the
regulatory statutes can be deduced from the Governor’s
message, such motive would not in anywise affect the va
lidity of the repealing statutes. McCray v. United States,
195 U. S. 27, 49 L. Ed. 78.

6 R ic e et al., A p p e l l a n t s , v. E l m o r e et al., A p p e l l e e s

R ic e et al., A p p e l l a n t s , v . E l m o r e et al., A p p e l l e e s 7

It is noted that the only authority cited by appellee for
this contention that inaction on the part of the state may
constitute state action, so as to confer jurisdiction upon the
Federal Courts, is an article in the Columbia Law Review.

Appellee’s contention that mere state inaction is tanta
mount to state action is a restatement of the dissenting
opinion of Mr. Justice Harlan in the Civil Rights cases
(1883) supra. But the majority opinion settled the question
adversely to the contentions of Mr. Justice Harlan, holding
that no state action was involved, even though, in that case
the inns, places of amusement, and public conveyances
were quasi public corporations, deriving their power from
the common law of the State.

The cases cited by appellee in his brief (Pages 23-24,
287 IT. S. 378, 207 U. S. 20, 287 U. S. 45, 325 U. S. 91),
in support of his contention that state action need not de
pend upon statutory enactment, only served to emphasize
the distinction between the case at bar and the cases cited.
In all those cases, and in all the other cases which can be
cited, the action complained of was the action of state offi
cials taken in their official capacity acting under state stat
utory authority, whereas in the case at bar, the appellants
were acting wholly in their capacity as private individuals
and as members of the Democratic party.

Repeal of State Statutes work a vital change in the
status of the Democratic Party by removing the controlling
hand of the State.

Appellee devotes a substantial portion of his argument
(pages 25-33) to the contention that the repeal of the pri
mary statutes did not change the status of the Democratic
primary of South Carolina.

8 R ic e et al, A p p e l l a n t s , v. E l m o r e et al., A p p e l l e e s

This argument is based upon the fact that in part the
Democratic party continued to operate after the repealing
statutes by the same general method of voting and conven
tions. It, however, entirely overlooks the basic fact that af
ter the repealing statutes, the party was wholly a volun
tary association, was free from any statutory regulation or
restriction, and that its rules and regulations were enforce
able only by expulsion from the party, whereas prior to the
repealing of the statutes, criminal penalties and civil lia
bility were imposed by law for a violation of the primary
regulations.

We have already discussed this point to some extent
in our main argument (see pages 34-35, 40-44), and we re
affirm our argument therein contained on this point.

If it could be contended that the party took its charac
ter as a state agency from the regulatory statutes, then it
follows inevitably by the same reasoning that the repeal of
the regulating statutes removed and discontinued its status
as an agency of the state.

As it was said in the Smith v. Allwright case, “ the par
ty takes its character as a state agency by the duties im
posed upon it by state statutes” .

The mere fact that the party continued in some measure
to operate by the same system cannot offset the vital fact
that the hand of the state has been removed from its control.

Appellee’s argument does not even challenge the con
trolling decision in the Civil Eights cases.

It is important to note that while the appellee has re
ferred repeatedly to certain cases heretofore decided by the
United States Supreme Court, including particularly the

Classic and Smith v. Allwright cases, which, however, for
the reasons already shown, do not really control in the case
at bar, he has not even tried to distinguish the leading case
on the issues really here involved, to w it: the Civil Rights
cases.

He has thus on the one hand relied upon certain deci
sions heretofore decided by the United States Supreme
Court and thereby recognized the soundness of the doctrine
of stare decisis, but on the other hand, has not undertaken
to distinguish the one great case which really marks a de
cisive point in the decisions of the United States Supreme
Court on the points herein involved. He merely implies that
it is irrelevant because “ decided prior to the Classic and
Allwright cases” (Page 23).

Appellee in his argument freely refers to cases as hav
ing been “ outmoded” by the Classic and the Smith v. All
wright cases. We submit there is no real merit in this idea,
particularly as applied to the Civil Rights cases.

In those famous cases (£7. S. v. Nichols, ZJ. S. v. Single-
ton, Robinson et al., v. Memphis and Charleston Railroad
Co., 109 U. S. 3, 27 L. Ed. 836), which have been regarded as
leading cases from the time of their decision in 1883 down
to the present, it was decided that those amendments (13th
and 14th) did not require hotels, theatres and railroads to
accept Negroes upon the same terms as whites. It was rec
ognized that it was not the intent or purpose of the amend
ments to protect Negroes from discrimination at the hands
of private individuals or corporations, but only to protect
them against the action of the state government, and not
to undertake to enforce equal social rights between the
races. The Court expressly stated that Congress did not
assume under those amendments “ to adjust what may be
called the social rights of men and races in the community”

R ic e et al., A p p e l l a n t s , v. E l m o r e et al., A p p e l l e e s 9*

10 R ic e et al., A p p e l l a n t s , v. E l m o r e et al., A p p e l l e e s

and further ‘ ‘ It would be running the slavery argument into
the ground, to make it apply to every act of discrimination
which a person may see fit to make as to the guests he will
entertain, or as to the people he will take into his coach or
cab, or car, or admit to his concert or theater, or deal with
in other matters of intercourse or business” .

These decisions thus clearly establish two principles
pertinent to this case: (1) That voluntary associations or
corporations cannot be required to accept Negroes into
membership; and (2) That the Fourteenth and Fifteenth
Amendments apply only as against the actions of states and
not as against the actions of private individuals or associa
tions.

The principle established by the Civil Rights cases has
been recognized and followed by almost innumerable deci
sions of the United States Supreme Court (including Steele
v. Louisville & Nashville Railroad, 232 U. S. 192, and Tim-
stall v. Rrotherliood of Locomotive Firemen, 323 U. S. 210,
cited in appellee’s brief at page 11), from the date of their
delivery down to the present time. It is inconceivable to us
that those famous cases can be considered in any way out
moded by the Classic and the Smith v. Allwright cases and
it is submitted that under the authority of those cases, the
Democratic Party of South Carolina, or any other political
party, has and had a perfect legal right to exclude Negroes
from membership therein and from voting in any nominat
ing primary conducted by the party.

See the following, among many other cases, citing and
approving the Civil Rights cases:

Logan v. U. S., 144 U. S. 290, 36 L. Ed. 429;
Plessy v. Ferguson, 163 U. S. 546, 41 L. Ed. 259;
James v. Rowman, 190 U. S. 137, 47 L. Ed. 981;

R ic e et al., A p p e l l a n t s , v. E l m o r e et al., A p p e l l e e s 11
Barney v. City of New York, 193 U. S. 438, 48 L.

Ed. 740;
Frank v. Mangum, 237 U. S. 328, 59 L. Ed. 980;
Corrigan v. Buckley, 271 U. S. 330, 70 L. Ed. 972;
Butts v. Merchants & M. Transp. Co., 230 U. S.

132;
Buchanan v. Warley, 245 U. S. 79, 62 L. Ed. 162;
Yu Cong Eng v. Trinidad, 271 U. S. 521, 70 L. Ed.

1059.

VII

Appellants’ right to limit Democratic party and pri
mary to white members guaranteed by United States Con
stitution.

Appellee’s whole argument and contention in this case,
it is submitted, is based upon an exaggerated conception
of his rights and a corresponding disregard of the rights
of others. He complains of discrimination against him and
his race but appellants contend and submit that they also
have basic rights in connection with this matter.

It is earnestly submitted that this case involved the
most fundamental rights of the appellants as citizens of
the State of South Carolina and of this country. It is sub
mitted that they must have, under our constitution and
laws, the right to organize their own political parties and
to choose the membership therein. It is submitted that they
cannot be required to associate in such parties with persons
whom they do not desire to admit to membership therein
and who do not sympathize with their political views.
These rights are predicated upon, and recognized by, the
following amendments to the United States Constitution,
which, at the risk of laboring the obvious, we quote below
for the convenience of the Court:

“ Article 1. Congress shall make no law respecting
an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a re
dress of grievances.

“ Article V. No person shall * * * be de
prived of life, liberty, or property, without due process
of law; nor shall private property be taken for public
use, without just compensation.

“ Article IX. The enumeration in the Constitution,
of certain rights, shall not be construed to deny or dis
parage others retained by the people.

“ Article X. The powers not delegated to the
United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or
to the people.”

It is earnestly submitted that under our theory of gov
ernment, appellants have a perfect right to organize their
political party and limit the members thereof to white per
sons who sympathize with their political views. By the same
token they would have a perfect legal right, if desired, to
organize a party for the purpose even of repealing the Four
teenth and Fifteenth Amendments and they would have the
right to limit the persons joining such party to persons who
sympathized with that objective.

In the case at bar, appellee is seeking to vote in a Dem
ocratic primary and for a candidate who is bound under
the rules of the party to support the principles of the Dem
ocratic party, which include the principle that the Demo
cratic party should be limited to white members (see ap
pendix, pages 22, 24).

How can the appellee be accorded the right to vote in
such a primary without destroying the basic rights of the

12 R ic e et al., A p p e l l a n t s , v . E l m o r e et al., A p p e l l e e s

members of such party to freedom of political action, free
dom of thought, freedom of speech and freedom of as
sembly ?

“ The principle of free thought” as stated by Mr. Jus
tice Holmes in U. 8. v. Schwimmer, 279 U. S. 644, is “ not
free thought for those who agree with us but freedom for
the thought that we hate” .

“ If there is any fixed star in our constitutional con
stellation, it is that no official, high or petty, can pre
scribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens

• to confess by word or act their faith therein.”
Board of Education v. Barnette, 319 U. S. 624

(1943).
It has ever been one of our most cherished beliefs,

cherished by us as American citizens and lawyers, that this
is a country of laws and not of men. It is believed that the
secret of success of the Anglo-American systems of gov
ernment has been that the rights of its citizens are derived
from and fixed upon written constitutional documents such
as Magna Charta, the Bill of Rights and the United States
Constitution. In this case the rights of the appellants should
be determined by the laws of the State of South Carolina
and the constitution and laws of the United States of Amer
ica. It is submitted, however, that there were no laws of
the State of South Carolina or of the United States of
America in existence in 1946 under which the appellants
should be liable to the appellee in this cause.

Finally it is submitted that the true doctrine estab
lished by all the cases is, as was determined in the Classic
case and Smith v. Allwright, that only where the primary
is a necessary step in the electoral process, because so cre
ated and regulated by State statute, that one has a consti
tutional right to participate in such primary.

R ic e et dl., A p p e l l a n t s , v. E l m o r e et al., A p p e l l e e s 13

Why, under our system of government, should any
group of citizens, by a caucus, or by a convention, or by a
mass meeting, be denied the right to select and put forward
any candidate to be voted for in the general election? Why
should not the membership of any such caucus, party, con
vention or mass meeting, have the full right and preroga
tive to choose the membership of such caucus, party, con
vention or mass meeting? Is not such right guaranteed to
them as an essential element of the rights reserved to the
people, a right incident to the right of peaceable assembly,
with which right the United States government, under the
Constitution, has no right to interfere?

Is not the correct answer to these questions found in the
specific language of the provisions of the Constitution and
the implementing statues thereunder pertinent and apposite
to this case, as well as in the decisions of the Supreme
Court, as illustrated in the Civil Rights cases and as stated
in Chapman v. King (154 Fed. (2d), 462): “ We are advised
of no statute, State or Federal, which undertakes to limit
the right of citizens who form a political party to select
those who shall participate in it. Nor is there any statute
which prohibits those who do participate in a party caucus,
mass meeting or election from agreeing to support the re
sult thereof. Accordingly there may be parties composed
wholly of whites, or wdiolly of colored people, or wholly of
Jews, or of men, or of women.”

We submit to this Court that the appellants named in
this action met in open court the issues raised by the com
plaint and that the stipulation of facts signed by counsel
and accepted by the Court, and the testimony of the witness,
Chairman Baskin of the South Carolina Democratic Party
who was called to the stand by the trial judge himself com
pletely refuted the charge made in the complaint. Neither
in the opinion of the trial judge, nor in the brief filed by

14 R ic e et al., A p p e l l a n t s , v. E l m o r e et al., A p p e l l e e s

E ic e et al., A p p e l l a n t s , v. E l m o r e et al., A p p e l l e e s 15

appellee’s counsel is any effort made to attack this testi
mony (or to draw any comfort from it). Under the Bill of
Rights and other provisions of the Constitution the appel
lants as citizens, had a complete and perfect right to as
semble as they did, in a voluntary association not created
or regulated by any state statute, and to express their pref
erence as to the candidates they would support in the gen
eral election. With all due respect to this Honorable Court,
these appellants look to it to protect this sacred right given
them by the Constitution of the United States as inter
preted by the Supreme Court and confidently believe that
these rights cannot, and will not, be taken away from them
by this or any other tribunal.

Respectfully submitted,

CHRISTIE BENET,

W. P. BASKIN,

CHARLES B. ELLIOTT,

IRVINE F. BELSER,

P. H. McEACHIN,

J. PERRIN ANDERSON,

W. BRANTLEY HARVEY,,

EDGAR A. BROWN,

YANCEY A. McLEOD,

Attorneys for Appellants-

I N T H E

Inxttb States (Eirnrit (Emtrt rtf Appeals
Fourth Circuit

No. 5664

CLAY RICE, ET AL., Appellants,

vs.

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

ON APPEAL FEOM THE DISTRICT COURT OF THE UNITED STATES
FOR THE EASTERN DISTRICT OF SOUTH CAROLINA

BRIEF FOR APPELLEE

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

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

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

Attorneys for Appellee.

I N D E X

PAGE

Statement of Case------------------- —------------------------------- 1
Statement of Facts------------------------------------------------------ 2
A r g u m e n t :

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

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

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

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

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

Conclusion ----------------------------------------------------------------- 33

Table of Cases.

Blakeney v. California Shipbuilding Co., 16 Lab. Rel.
Rep. 571 __________________________________________ 11

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

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

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

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

PAGE

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

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

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

(1944) ___________________________________________ 11
Swafford v. Templeton, 185 U. S. 487 (1902)-------------- 13
Tunstall v. Brotherhood of Locomotive Firemen, 323

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

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

P. (2d) 903 (1946)________________________________ H
Wallace Corp. v. N. L. R. B., 323 U. S. 248 (1944)----- 11

Other Authorities Cited.

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

IN TH E

Itttfrfc GItmrit (Emtrt nf Appals
Fourth Circuit

Clay R ice, et al.,
Appellants,

vs.

George Elmoke, on behalf of himself and
others similarly situated,

Appellee.

No. 5664

BRIEF FOR APPELLEE

Statement of Case

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

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

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

Statement of Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A R G U M E N T

Preliminary Statement

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

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

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

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

The record as to the white primary of the Democratic
party is closely similar to that of the discriminatory regis
tration statutes. The Texas cases 3 demonstrate that after
each decision of the Supreme Court there was an effort to
circumvent the decision. After Smith v. Allwright4 5 no
further effort was made in Texas. However, South Caro
lina repealed all of its primary statutes in a deliberate
effort to circumvent this decision and to continue to prevent
Negroes from exercising their choice of candidates in the
only meaningful election in South Carolina, viz., the Demo
cratic Primary.

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

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

3 G rovey v. Tow nsend, 295 U. S. 45 (1935) ; N ix o n v. Condon, 286
U. S. 73 (1932) ; N ixon v. H erndon , 273 U. S. 536, 540 (1927).

4 321 U. S. 649 (1943).
5313 U. S. 299 (1941).

officials conducting the primary were private persons or
state officers.6

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

6 Even assuming for the purpose of argument that the Democratic
party is in South Carolina a private voluntary association its action
still violates the Fourteenth and Fifteenth Amendments if in fact a
state agency relationship exists. In M arsh v. Alabama, 326 U. S. 501
(1946), the Supreme Court held that the due process clause of the
Federal Constitution was a limitation on the actions of a purely private
corporation since the corporation occupied a peculiar position within
the economic and political system. In K err v. E noch P ratt F ree
Library, 149 F. (2d) 212 (C. C. A. 4th, 1945) this Court held that
since the corporation had invoked the power of the state for its
creation and relied upon city funds for its existence it was in fact a
state function. Recent decisions have indicated that labor unions,
although private voluntary associations, are subject to the limitations
of the due process clause of the federal Constitution. S teele v. Louis
ville & Nashville Railroad, 323 U. S. 192 (1944); Tunstall v. B roth er
hood of Locom otive Firem en, 323 U. S. 210 (1944).

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

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

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

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

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

“ White supremacy will be maintained in our pri
maries. Let the chips fall where they m ay!”

7 Sm ith v. A llw right, supra, at page 664.

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

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

I
Prior to the repeal of the primary election statutes

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

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

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

8 U. S. v. Classic, su pra ; E x P arte Yarbrough, 110 U. S. 651
(1884); Swafford v. Tem pleton, 185 U. S. 487 (1902); United States
v. Mosely, 238 U. S. 383 (1915).

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

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

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

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

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

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

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

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

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

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

10 United States v. Classic, supra ; Sm ith v. A llw right, supra; Chap
man v. K ing , infra.

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

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

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

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

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

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

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

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

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

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

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

B. Federal Courts have jurisdiction of this case.

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

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

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

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

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

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

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

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

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

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

11 N egro D isenfranchisem ent— A Challenge T o the Constitution, 47
Col. Law Review, 76, 87 (1947).

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

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

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

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

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

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

12 U. S. v. Gradwell, 243 U. S. 476, 61 L. ed. 857 (1917) • N ew
berry v U. S., 256 U. S. 232, 65 L. ed. 913 (1921) ; Sm ith v. B lack-
inn TT^ S' A; 4th)> U5 Fed. (2d) 186 (1940) ; Civil R ights Cases,
109 U. S. 3, 27 L. ed. 835 (1883) ; R obinson v. H olm an, 181 Ark. 428

13VY ’ 66 (1930) (cert, denied 282 U. S. 804, 75 L. ed. 722).’
U. S. v. Classic, supra ; Sm ith v. A llw right, supra ; Chapman v.

Kmg 154 Fed. (2d) 460 (cert, denied 60 Sup. Ct. 905, 90 L. ed.
1025) (1946).

14 287 U. S. 378 (1932).

Administrative Action may be State Action. Raymond
v. Chicago Union Traction Co.15

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

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

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

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

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

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

16 207 U. S. 20 (1907).
16287 U. S. 45 (1932).
17325 U. S. 91 (1945).

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

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

II
Repeal of primary statutes did not change the

status of the Democratic Primary of South Carolina.
The electoral procedure in South Carolina is divided

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

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

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

From 1888 to 1915, the State of South Carolina main
tained varying degrees of statutory control over primary
elections. In 1915 the General Assembly of South Carolina
enacted comprehensive election laws providing for full stat
utory control of primary as well as general and special elec
tions.20 Prior to April, 1944, statutes of South Carolina
regulated the primary as an integral part of the procedure
of choice of senators and representatives within the mean
ing of Article I, section 2, of the United States Constitution
and the Seventeenth Amendment thereto.

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

19 State v. M eharg, 287 S. W . 670, 672 (1926). One of the major
reasons for the development of the primary election was that in “the
South, where nomination by the dominant party meant election, it was
obvious that the will of the electorate would not be expressed at all,
unless it was expressed at the primary” . Charles Evans Hughes,
“ The Fate of the Direct Primary,” 10 National Municipal Review,
23, 24. See also: Hasbrouck, “ Party Government in the House of
Representatives” (1927), 172, 176, 177: Merriam and Overacker,
“ Primary Elections” (1928), 267-269.

On the great decrease in the vote cast in the general election from
that cast at the primary in the “ one-party” areas of the country, see
George C. Stoney, “ Suffrage in the South,” 29 Survey Graphic 163,
164 (1940).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

H arold R. B otjlware,
11091/2 Washington Street,
Columbia, South Carolina,

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

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

Attorneys for Appellee.

IN T H E

•Httitti* States ©trrmt (Emtrt of Appeals
Fourth Circuit

No. 5664

CLAY RICE, ET AL., Appellants,

vs.

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

ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES
FOR THE EASTERN DISTRICT OF SOUTH CAROLINA

BRIEF FOR APPELLEE

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

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

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

Attorneys for Appellee.

I N D E X

PAGE

Statement of Case-------------------------------------------------------- 1
Statement of Facts--------------------------- ------------------------ 2
Argument :

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

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

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

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

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

Conclusion ------------------------------------------------------------------------ 33

Table of Cases.

Blakeney v. California Shipbuilding Co., 16 Lab. Eel.
Rep. 571 __________________________________________ 11

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

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

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

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

page

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

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

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

(1944) ___________________________________________ 11
Swafford v. Templeton, 185 U. S. 487 (1902)-------------- 13
Tunstall v. Brotherhood of Locomotive Firemen, 323

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

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

P. (2d) 903 (1946)_______________________________ H
Wallace Corp. v. N. L. R. B., 323 U. S. 248 (1944)----- 11

Other Authorities Cited.

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

I N T H E

intttb States (Utmttl GJnturt of Appeals
Fourth Circuit

Clay R ice, et al.,
Appellants,

vs.

Gteokge E lmore, on behalf of himself and
others similarly situated,

Appellee.

No. 5664

BRIEF FOR APPELLEE

Statement of Case

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

Statement of Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A R G U M E N T

Preliminary Statement

238
2

1
Myers v. Anderson, 238 U. S. 368 (1914) ; Guinn v. United States,
U. S. 347 (1914).
Lane v. W ilson, 307 U. S. 268 (1938).

1 0

The record as to the white primary of the Democratic
party is closely similar to that of the discriminatory regis
tration statutes. The Texas cases 3 demonstrate that after
each decision of the Supreme Court there was an effort to
circumvent the decision. After Smith v. Allwright4 no
further effort was made in Texas. However, South Caro
lina repealed all of its primary statutes in a deliberate
effort to circumvent this decision and to continue to prevent
Negroes from exercising their choice of candidates in the
only meaningful election in South Carolina, viz., the Demo
cratic Primary.

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

3 G rovey v. Tow nsend, 295 U. S. 45 (1935) ; N ixon v. Condon, 286
U. S. 73 (1932) ; N ix o n v. H erndon , 273 U. S. 536, 540 (1927).

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

1 1

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

Appellants throughout their brief continue to confuse
the right to membership in a political party with the right
to vote in primary elections which determine who shall ulti
mately represent the people in governmental affairs, for
example, appellants in their conclusion take the position
that: “ Plaintiff has no more right to vote in the Democratic
Primary in the State of South Carolina than to vote in the
election of officers of the Forest Lake Country Club or for
the officers of the Colonial Dames of America, which prin
ciple is precisely the same” (Brief for Appellants, p. 45,
italics ours). Appellants’ entire case is based upon this
absurd position. 6

6 Even assuming for the purpose of argument that the Democratic
party is in South Carolina a private voluntary association its action
still violates the Fourteenth and Fifteenth Amendments if in fact a
state agency relationship exists. In M arsh v. Alabama\, 326 U. S. 501
(1946), the Supreme Court held that the due process clause of the
Federal Constitution was a limitation on the actions of a purely private
corporation since the corporation occupied a peculiar position within
the economic and political system. In K er r v. E noch Pratt F ree
Library, 149 F. (2d) 212 (C. C. A. 4th, 1945) this Court held that
since the corporation had invoked the power of the state for its
creation and relied upon city funds for its existence it was in fact a
state function. Recent decisions have indicated that labor unions,
although private voluntary associations, are subject to the limitations
of the due process clause of the federal Constitution. S teele v. Louis
ville & Nashville Railroad, 323 U. S. 192 (1944) ; Tunstall v. B rother
hood of Locom otive Firem en, 323 U. S. 210 (1944).

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

1 2

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

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

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

7 Sm ith v. A lhvright, supra, at page 664.

I
Prior to the repeal of the primary election statutes

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

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

BU. S. v. Classic, su pra ; E x P arte Yarbrough, 110 U. S. 651
(1884); Swafford v. Tem pleton, 185 U. S. 487 (1 9 0 2 ); United States
v- Mosely, 238 U. S. 383 (1915).

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

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

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

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

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

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

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

10 United States v. Classic, supra ; Sm ith v. A llw right, supra; Chap
man v. K ing , infra.

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

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

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

2 0

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

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

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

B. Federal Courts have jurisdiction of this case.

2 1

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

2 2

11 N eg ro Disenfranchisem ent— A Challenge T o the Constitution, 47
Col. Law Review, 76, 87 (1947).

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

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

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

12 U. S. v. Gradwell, 243 U. S. 476, 61 L. ed. 857 (1917) ; N ew
berry v. U. S., 256 U. S. 232, 65 L. ed. 913 (1921) ; Sm ith v. B lack-
well (C. C. A . 4th), 115 Fed. (2d) 186 (1940); Civil R ights Cases,
109 U. S. 3, 27 L. ed. 835 (1883) ; R obinson v. H olm an, 181 Ark. 428,
26 S. W. (2d) 66 (1930) (cert, denied 282 U. S. 804, 75 L. ed. 722).

131/. 5'. v. Classic, supra ; Sm ith v. A llw right, supra ; Chapman v.
King, 154 Fed. (2d) 460 (cert, denied 60 Sup. Ct. 905, 90 L. ed.
1025) (1946).

14 287 U. S. 378 (1932).

Administrative Action may be State Action. Raymond
v. Chicago Union Traction Co.15

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

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

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

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

15 207 U. S. 20 (1907).
16287 U. S. 45 (1932).
17325 U. S. 91 (1945).

II
Repeal of primary statutes did not change the

status of the Democratic Primary of South Carolina.
The electoral procedure in South Carolina is divided

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

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

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

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

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

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

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

In 1946 substantially the same procedure was used
in the organization of the Democratic party and an
other set of rules adopted which were substantially
the same as the 1944 rules, excepting that the voting
age was lowered to 18 and party officials were allowed
the option of using voting machines, and the rules
relative to absentee voting were simplified (absentee
voting had heretofore been controlled by certain
statutes repealed in 1944. (See C ode o f S o u t h
C a r o l in a , S e c t io n s 2406-2416.) It is pointed out
that the word ‘ election’, although claimed to have
been entirely eliminated, was still used in Rules 25,
27, 32 and 48” (A-93-95).

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

Conclusion

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

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

W h e r e f o r e , it is respectfully submitted that the judg
ment of the United States District Court should be affirmed.

H ar o ld R . B o u l w a r e ,

1109% Washington Street,
Columbia, South Carolina,

E d w a r d R. D u d l e y ,

20 West 40th Street,
New York 18, New York,

T h u r g o o d M a r s h a l l ,

20 West 40th Street,
New York 18, New York,

Attorneys for Appellee.

ARGUMENT FOR APPELLANTS

United States Circuit Court of Appeals
FOURTH CIRCUIT

GEORGE ELMORE, o n B e h a l f of H im s e l f a n d O t h e r s

S im il a r l y S it u a t e d , P l a i n t i f f ,

versus

CLAY RICE ET AL., D e f e n d a n t s
' / /

CHRISTIE BENET,

W. P. BASKIN,

CHARLES B. ELLIOTT,

IRVINE F. BELSER,

P. H. McEACHIN,

J. PERRIN ANDERSON,

W. BRANTLEY HARVEY,

EDGAR A. BROWN,

YANCEY A. McLEOD,

Attorneys for Appellants.

The R. L. Bryan Company. Legal Printers. Columbia, S. C.

OCT 13 1947

CLAUDE M. DEAN
CLERK

SYNOPSIS AND INDEX

Introductory Sum m ary....................................................... 1

Statement as to F a c ts ......................................................... 4

Statement of Questions....................................................... 10

Argument ................... 11

Smith v. Allwright and Classic Cases Depended
Upon Statutory Requirement and Regulation of
Primaries ....................................................................... 11

Federal Courts Without Jurisdiction Because No
State Action Involved and Defendants Not Acting
Under Any State Statute ......................................... 24

III

Democratic Party of South Carolina a Private Po
litical Organization With Unrestricted Choice of
Membershp ................................................................... 35

Summary and Conclusion ................................................. 44

P age

(i)

Catletts v. United States, 132 Fed. (2d), 902, 907 .......... 33

Chapman v. King, 154 Fed. (2d), 460 (Cert. Denied),
66 Sup. Ct., 905, 90 L. Ed., 1025, April 1,1946 . . . .2,

3, 12, 20, 25, 32, 35, 36, 39, 44, 45

Civil Rights Cases, 1883, 3 Sup. Ct., 18, 109 U. S., 17,
27 L. Ed., 835 ..................................... 2, 3, 25, 26, 36, 45

Classic Case, 313 U. S., 299, 341, 85 L. Ed., 1368
2, 3, 4, 12, 25, 31, 37, 45

Ex Parte Virginia, 100 U. S., 339, 346, 25 L. Ed., 676 . . . 18

Gaines v. Canada, 305 U. S., 337 ..................................... 33

Gardner v. Blackwell, 167 S. C., 3 1 3 ............................. 6, 42

Gradwell Case, 243 U. S., 487, 61 L. Ed., 865
2, 12, 19, 25, 36, 37

Grigsby v. Harris (D. C.), 27 F. ( 2 d ) .............................. 37

Guinn v. United States, 238 U. S., 347, 362, 59 L. Ed.,
1340,1346, 35 S. Ct., 926, L. R. A., 1916-A, 1124 . . . . 15

Hague v. C. I. 0., 307 U. S., 496, 83 L. Ed., 1423 .. .3,18, 25

Home Teleph. & Teleg. Co. v. Los Angeles, 227 U. S.,
278, 287 et seq., 57 L. Ed., 510, 515, 33 S. Ct., 312

18, 31
Kerr v. Enoch Pratt Free Library, C. C. A., 4, 149 Fed.

T A B L E OF C A S E S

P age

(2d), 2 1 2 ......................................................................... 33

Marsh v. Alabama, 326 U. S., 501, 90 L. Ed., 275 ............ 33

McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S., 151... 33

[hi ]

Newberry Case, 256 U. S., 232, 65 L. Ed., 913
2, 3, 12, 19, 25, 36, 37

Nixon y. Herndon, 273 U. S., 487, 61 L. Ed., 865
2, 12, 16, 34

Robinson v. Holman, 181 Ark., 428, 26 S. W. (2d), 66,
Arkansas Sup. Ct., March 24, 1930 (Cert. Denied
282 U. S., 804, 75 L. Ed., 7 2 2 )... .3, 25, 29, 34, 35, 36, 37

Robinson et al. v. Memphis & Charleston R. R. Co., 109
U. S., Page 3, 27 L. Ed., 836 ..................................... 38

Screws v. U. S., 325 U. S., 91, 89 L. Ed., 1495 ............. 30

Smith v. Allwright, 321 U. S., 647, 88 L. Ed., 987
2, 4, 12, 13, 16, 31, 34, 37, 41, 42, 43

Smith v. Blackwell, C. C. A., 4, Oct. 21, 1940, 115 Fed.,
1 8 6 ................................................................................ 6, 24

Smith v. Blackwell, (D. C. E. D., S. C.), Sept. 17, 1940,
34 Fed. Supp., 989 ......................................... 3, 24, 25

Truax v. Corrigan, 257 U. S., 312, 66 L. Ed., 254 ......... 33

U. S. v. Nichols, 109 U. S., 3, 27 L. Ed., 836 ................. 38

U. S. v. Singleton, 109 U. S., 3, 27 L. Ed., 836 ............. 38

Walls v. Brundidge, 109 Ark., 250, 160 S. W., 230, Ann.
Cas., 1915-C ..................................................................37

Westminster School District of Orange County et al. v.
Mendez et al., 161 Fed. (2d), 775-784 .................... 30

T A B L E O F C A S E S — (C ontinued)

Page

[iv]

arg um en t for a ppellants

United States Circuit Court of Appeals
FOURTH CIRCUIT

GEORGE ELMORE, o n B e h a l f of H im s e l f a n d O t h e r s

This in an appeal from Judge W aring’s order dated
July 12, 1947, holding that all qualified negro electors are
entitled to vote in the Democratic primaries in South Caro
lina regardless of the rules of the Democratic party, and
notwithstanding the fact that there are no South Carolina
statutes regulating the said primaries.

The Democratic party in South Carolina had arisen
as a private, voluntary political association, and in 1943
and 1944 all the statutes, which had from time to time been
enacted to regulate the primary were repealed.

The laws referred to as having been repealed included
a penalty statute, providing for a fine or imprisonment for
violation of the statutory laws regulating the primary, and
thereafter the party primaries were wholly unregulated by

S i m il a r l y S it u a t e d , P l a i n t i f f , ^

versus

CLAY RICE ET AL., D e f e n d a n t s7 /

INTRODUCTORY SUMMARY

2 Elmore et al., Plaintiff, v. Rice et at, Defendants

statute and violation of the rules thereof punishable only
by expulsion from the party.

It is submitted that Judge W aring’s order should be
reversed because:

The Smith v. Alhvright and the Classic cases, upon
which the Court below pitched its decision, 'depended upon
statutory requirement and regulation of the primaries and
inasmuch, as in the case at bar, there was no statutory re
quirement or regulation of the primaries, the said cases
are inapplicable and the decision should have been in favor
of the defendants.

The Classic Case, 313 U. S., 299, 341, 85 L. Ed.,
1368;

Smith v. Alhvright, 321 U. S., 647, 88 L. Ed., 987;
Chapman v. King, 154 Fed. (2d), Page 460 (Cert,

Denied, 66 Sup. Ct., 905, 90 L. Ed., 1025, April
1, 1946);

Nixon v. Herndon, 273 U. S., 536, 71 L. Ed., 759;
The Gradwell Case, 243 TJ. S., 487, 61 L. Ed., 865;
The Newberry Case, 256 U. S., 232, 65 L. Ed., 913,

The Federal Courts are without jurisdiction of this
suit because no state action was involved and defendants
were not acting under any state statute or as state officials
but, at the times complained of, were acting solely in their
capacity as members of the Democratic party.

The Newberry Case, 256 U. S., 232, 65 L. Ed., 913;
The Gradwell Case, 243 U. S., 487, 61 L. Ed., 865;
The Civil Rights Cases, 1883, 3 Sup. Ct,, page 18,

109 U. S., Page 17, 27 L. Ed., Page 835;

Elmore et al, Plaintiff, v. Rice et al., Defendants 3

Robinson v. Holman, 181 Ark., 428, 26 S. W. (2d),
66, Arkansas Sup. Ct., March 24, 1930 (Cert,
denied, 282 U. S., 804, 75 L. Ed., 722);

Smith v. Blackwell, C. C. A., 4, Oct. 21, 1940, 115
Fed. (2d), 186;

Hague v. C. I. 0., 307 U. S., 496, 83 L. Ed., 1423;

See also:

Smith v. AUwright, 321 U. S., 647, 88 L. Ed., 987;
Smith v. Blackwell (D. C. E. D., S. C., Sept. 17,

1940), 34 Fed. Supp., 989;
Chapman v. King, 154 Fed. (2d), page 460 (Cert,

denied, 66 Sup. Ct., 905, 90 L. Ed., 1025, April 1,
1946);

The Classic case, 256 U. S., 299, 341, 85 L. Ed.,
1368.

The Gradwell case, the Newberry case, the Classic case,
and the Civil Rights cases above cited all expressly hold
that federal courts have jurisdiction only where the aetions
complained of arose out of, and involved, violation o f some
rights protected by the Federal Constitution and only
where such violations have been caused by state action.

“ It is state action of a particular character that is
prohibited. Individual invasion o f individual rights is not
the subject matter of the Amendment. * * * ” (Page
839.)

“ In this connection it is proper to state that civil
rights, such as are guaranteed by the Constitution against
state aggression, cannot be impaired by the wrongful acts
of individuals, unsupported by state authority in the shape
of laws, customs or judicial or executive proceedings. The
wrongful act of an individual, unsupported by any such au
thority, is simply a private wrong, or a crime of that in
dividual; an invasion of the rights of the injured party,
it is true, whether they affect his person, his property or
his reputation; but if not sanctioned in some way by the
State, or not done under state authority, his rights remain
in full force, and may presumably be vindicated by resort
to the laws of the State for redress. An individual cannot
deprive a man of his right to vote, to hold property, to buy
and to sell, to sue in the courts or to be a -witness or a juror.
Hence, in all those cases where the Constitution seeks to
protect the rights of the citizen against discriminative and
unjust laws of the State by prohibiting such laws, it is not
individual offenses, but abrogation and denial of rights,
which it denounces, and for which it clothes the Congress
with power to provide a remedy. This abrogation and de-
nal of rights, for which the States alone were or could
be responsible, was the great seminal and fundamental
wrong which was intended to be remedied. And the remedy
to be provided must necessarily be predicated upon that
wrong. It must assume that in the cases provided for, the
evil or wrong actually committed rests upon some state law
or state authority for its excuse and perpetration.” (Page
841.)

The Civil Rights cases, 109 U. S., page 3, 27 L.
Ed., 836.

The plaintiff in his Complaint undertakes to base the
jurisdiction of the Court in this case upon various sections
of the United States Code Annotated to wit: Subdivision 1,

26 Elmore et al., Plaintiff, v. Rice et at, Defendants

Section 41 of Title 28; Subdivision 11, Section 41, Title 28;
Subdivision 14, Section 41 of Title 28; and also under Sec
tion 400 of Title 28 of the United States Code Annotated
(the said Declaratory Judgments Act), saying that his
rights thereunder arise from the United States Constitu
tional provision, Sections 2 and 4 of Article 1 and Amend
ments 14, 15 and 17 of the Constitution and of Sections 31
and 43 of Title 8. But all of these alleged bases of jurisdic
tion come down to the proposition that he can show juris
diction only if the defendants, acting under color of some
state statute, have deprived him of his constitutional rights
to vote. (See cases above cited.)

The authorities on this point are settled, uniform, and
overwhelming. Indeed, in the SmilJi-Allwright case, in
which the alleged bases of jurisdiction were in exactly the
same language as the case at bar (as shown by the tran
script of record filed in the U. S. Supreme Court), the Su
preme Court of the United States expressly affirmed the
jurisdiction of the district Court only under Subsection
14 of Title 28, U. S. C. A. (Pages 990 and 991.)

The Court thereby disallowed jurisdiction upon all
other alleged grounds. That section of the Code, however is
as follows:

The district courts shall have original jurisdiction
as follows:

* # #

“ (14) Suits to redress deprivation of civil rights.
Fourteenth. Of all suits at law or in e'quity authorized
by law to be brought by any person to redress the de
privation, under color of any law, statute, ordinance,
regulation, custom, or usage, of any State, of any right,
privilege, or immunity, secured by the Constitution of
the United States, or of any right secured by any law
of the United States providing for equal rights of cit
izens of the United States, or of all persons within

Elmore et al., Plaintiff, v . Rice et al., Defendants 27

the jurisdiction of the United States. (R. S., 562,
Par. 12, 629, Par. 16; March 3, 1911, c., 231, 24, Par.
14, 36 Stat., 1092.)” (Emphasis added.)
But in this case it is too obvious for argument that the

defendants in the respects complained o f were not acting
under color of any State statute or law but were acting
solely by virtue of the rules of the Democratic party.

Section 43 of Title 8 of the United States Code is in
substantially the same language.

Both these Statutes for their Constitutional basis go
back to the Fourteenth and Fifteenth Amendments to the
Constitution, which provide in effect that citizens shall not
be deprived of their rights under the Constitution “ by any
State” , the relevant provisions being as follows.:

“ Amendment X IV of the Constitution:
“ Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction there
of, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any
law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, with
out due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.” (Page
3.) (Emphasis added.)
* # #

“ Amendment X V of the Constitution:
“ Par. 1. Effect of race, color, or previous servi

tude.
“ 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 previous condition of servitude.” (Page 997.) (Em
phasis added.)

28 Elmore et al., Plaintiff, v . Rice et al., Defendants

In the Classic case, it is expressly stated (at Page
1383), 85 L. Ed., with citations of anthority, that in order
for the wrongdoer to be acting under “ color of state law”
he must be guilty of “ Misuse of power possessed by virtue
of State law and made possible only because the wrongdoer
is clothed with the authority of the State law. ’ ’

Also, in the Robinson v. Holman case, where the facts
showed that the party was unregulated by statute, and the
suit was denied, the Supreme Court in its Per Curiam order
(75 L. Ed., Page 722), expressly stated that “ The appeal
herein is dismissed for want of jurisdiction” . (Emphasis
added.)

In the Smith v. Blackwell cases (34 Supplement, 989,
115 Fed. (2d), 186), decisions by the district Court of the
Eastern District of South Carolina and by the Circuit Court
of Appeals of the Fourth Circuit, respectively, the plain
tiffs, a group of Republicans, had brought suit particularly
for the purpose of having the names of candidates for all
political parties printed on the same ticket. The District
Court dismissed the Complaint for lack of jurisdicton, par
ticularly upon the ground that no duty was placed upon
any of the defendants by statute with reference to the re
lief prayed for by the plaintiffs. This decision of the Dis
trict Court (Judge Lumpkin), was affirmed by the Circuit
Court of Appeals.

In the Circuit Court of Appeals decision, the Court, af
ter referring to the South Carolina Statutes relative to the •
form of ballots (Sections 2298 and 2309 of the Code of 1932)
said:

# * #

Elmore et al., Plaintiff, v. Rice et al,, Defendants 29

30 Elmore et al, Plaintiff, v. Rice et al, Defendants

tiffs. * * * For a matter to come within the juris
diction of the court under the Declaratory Judgment
Act, Jud. Code Par. 274d, 28 U. S. C. A. Par. 400, it
must involve an actual controversy between the par
ties before the court ‘admitting of specific relief
through a decree of a conclusive character.’ ”
The decision of the District Court in this case con

tained an interesting discussion of the practice prevailing
in South Carolina at the time, pointing out particularly that
there was no requirement of the South Carolina statutes
that one be nominated in a primary in order to be a candi
date in the general election.

It is true that the above cases did not involve any con
tention that the plaintiffs had been deprived of any rights
under the 15th Amendment, but the cases do clearly hold
that no one in South Carolina is charged with the authority
and duty of preparing ballots for use in the general elec
tion. To that extent the cases are particularly per
tinent to the case at bar where defendants have no stat
utory duties Avhatsoever with reference to the plain
tiff, that is to allow him to vote or to furnish him a ballot
for use whether in the primary or in the general election.

Not only is there no South Carolina statute in any sense
undertaking to abridge any of the rights of the qualified
electors in this State, but, on the contrary, the constitu
tional provisions emphatically safeguard such rights.

(See Article 1, Section 10, South Carolina Constitution
above cited.)

To the same effect see the recent cases of Screws v.
United States, (325 U. S., 91, 89 L. Ed., 1495) and also
Westminster School District of Orange County et al. v.
Mendez et al., (161 Fed. (2d), 775-784) wherein the juris-

diction of the federal court was predicated upon the fact
that the officials involved were state officials and as such
clothed with state authority. Both cases recognized that in
order for the acts to be done “ under color of state law”
so as to bring the case within the jurisdiction of the fed
eral courts, the acts must be those of “ one who is in pos
session of state powers” and “ uses that power to the do
ing of the wrongs which the Amendment forbids” and
where “ the commission of the wrong itself is rendered pos
sible or is efficiently aided by the state authority lodged in
the wrongdoer” . (Citing Home Telephone & Telegraph Co.
v. Los Angeles, 227 U. S., 278, 57 L. Ed., 510.)

Elmore et al., Plaintiff, v. Rice et al., Defendants 31

These cases are to be distinguished from the case at
bar in that the defendants herein were not in any sense
officials of the State of South Carolina and were not in pos
session of any state power under any state law.

The Court below, and we believe the plaintiff also in
the Court below, has apparently conceded that state action
is necessary in order to bring this case within the jurisdic
tion of the Federal Courts. In fact, in the opinion itself, the
Court expressly holds in effect (Page 10), after discussing
the Smith-Allwright and the Classic Cases, that to bring
this case within the constitutional and statutory rights of
a qualified elector, the violation complained of must be in
“ a primary conducted in accordance with state law” and
must take place “ in such a primary” .

The Court below, however, apparently, as we read its
opinion, seeks to meet this requirement by holding in effect
that the Democratic party in this State is the same as it
was before the repeal of the statutes in 1943 and 1944. The
Court thereby, it is submitted, disregards both the facts
of this case, and the decisions in all the cases upon which

it relies, including the Classic Case, the Smith-Allwrigkt
Case and Chapman v. King. The Court apparently com
pletely disregards the fact that there is now no statutory
control of the Democratic party and disregards the plain
holding and requirement as expressed both in the Smith
Allwright Case aud in the Chapman v. King Case, that in
order for the Federal Courts to have jurisdiction and that
there may be any constitutional rights involved, the State
must put its power behind the rules of the party and it
must be state action which compels.

The Court also totally disregards, apparently, the vital
fact, which we hereinafter discuss more in detail, that after
the repeal of the statutes in 1943 and 1944, the rules of the
party were enforceable only by expulsion from the party,
whereas previous to the repeal, the rules of the party and
the statutes governing the party were enforced by fine of
$500.00 or imprisonment, or in certain cases as for perjury,
carrying an even higher penalty. It is elementary that the
sanction or penalty by which laws are enforced constitutes
the essential feature of any law. Consequently, when these
statutory penalties for enforcement of the laws were re
moved by the repeal, the rules of the Democratic party
took on an entirely different nature and character. Hence,
the basic requirement of state action and control has been
removed and the Federal courts are without jurisdiction.

32 Elmore et al., Plaintiff, v . Rice et al., Defendants

The Court suggests that the “ custom, or usage, of
any State” referred to in subdivision 14 of Section 41 of
Title 28 and Section 43 of Title 8, U. S. C. A. (erroneously
referred to by the Court as Section 31), may be shown by,
and may consist of, the operations of the Democratic party
after, as well as before, the repeal of the regulatory
statutes.

It is submitted, however, that there is absolutely no
legal foundation for this conclusion and that, on the con
trary, all the cases which can be or have been cited held
that such “ custom or usage” of any State must consist
of direct action as evidenced by some State statute or en
actment.

The Court also suggests that the actions of the Demo
crats in holding conventions and adopting rules and hold
ing primaries, constituted custom, usage, or regulations
within the meaning of the foregoing statutes and consti
tuted actions “ of the people of the State” . It is submitted,
however, that there can be no real basis or authority for
this contention. This does not fulfill the requirement of
the federal jurisdictional statutes. As a matter of fact, the
members of the Democratic party would not amount to
more than several hundred thousand people, whereas the
people of the State of South Carolina number nearly two
million. Moreover of course, it is obvious, and elementary,
that under our theory of government, the State govern
ment represents the people of the State and there can be
no legal action of the people of the State except by stat
utory enactment.

The Court below, discussing a suggestion that state in
action may amount to such state action, refers to
the case of Catletts v. U. S., 132 Fed. (2d), 902, 907 (4th
C. C. A. Opinion by Dobie, C. J., citing McCabe v. Atchison
T. £ 8. F. By. Co., 235 U. S., 151; Gaines v. Canada, 305
U. S., 337, as bearing upon this theory. The plaintiff also
in the Court below advanced this idea and cited certain
cases as supporting the same. We have carefully examined
all these cases, however (Marsh v. Alabama, 326 U. S., 501,
90 L. Ed., 275; Truax v. Corrigcm, 257 U. S., 312, 66 L.
Ed., 254; Kerr v. Enoch- Pratt Free Library, C. C. A., 4,

Elmore et al., Plaintiff, v. Rice et al., Defendants 33

149 F. (2d), 212) and we submit that none of them in reality
contain any substantial support for this theory.

In the Smith v. Allwright case as pointed out, the Court
expressly stated that the party takes its character from
the duties imposed upon it by State statute, and hence, in
the absence of any such State statute the party cannot be
an agency of the State.

Also, the United States Supreme Court, by dismissing
the petition for the writ of certiorari in the Robinson v.
Holman case, expressly upon the ground of “ want of juris
diction” (282 U. S., 804, 75 L. Ed., 722), has in effect held
that the Federal Courts are without jurisdiction in cases
where the refusal to permit the negroes to vote in the state
primary was wholly a result of party action and not of
state action.

It is obvious that if plaintiff’s argument in this case
should be sustained and the Federal Court should assume
jurisdiction to direct what is to be done, when the State
has taken no positive action, then the reservation contained
in the Tenth Amendment to the United States Constitution
would be rendered nugatory.

The Court below, however, in effect rejected this theory
saying that its decision would “ rest upon entirely different
grounds ’ ’.

34 Elmore et al., Plaintiff, v. Rice et al., Defendants

The Court below apparently based its final decision
and conclusion in the case upon the holding that the Demo
cratic party though admittedly no longer governed by state
statutes was still the same organization and an agency of
the State of South Carolina, that is, “ the same horse al
though of a somewhat different color” . We submit, how
ever, that this holding flies in the face of the facts of this
case and also of the decisions upon which the opinion of

Elmore et al., Plaintiff, v. R ice et al., Defendants 35

the Court below is ostensibly based. The repeal of the stat
utes and the removal of the penalties vitally, fundamentally
and completely changed the nature of the Democratic party,
insofar as its relations to the State are concerned. The
party had initially arisen as a private, voluntary organiza
tion and upon the repeal of such statutes, it resumed its
status as a private, voluntary organization.

Ill

Democratic Party of South Carolina A Voluntary Political
Association With Unrestricted Choice

Of Membership
(Points 4, 5, 6, 8, 12, 16, 17, 18, 21, 22, 23, 25, 29)

“ Being a voluntary political organization and not
an agency of the state, the Democratic party had the
right to prescribe the rules and regulations defining the
qualifications of membership and to provide that only
white people could become members, without coming
within the prohibition of either the Fourteenth or Fif
teenth Amendment. ’ ’

Robinson v. Holman, 70 A. L. R., pp. 1480, 1482,
1483, 1484.

“ * * * we are advised of no statute, State or
Federal, which undertakes to limit the right of citizens
who form a political party to select those who shall
participate in it. * * * Accordingly there may be
parties composed wholly of whites, or wholly of col
ored people, or wholly of Jews, or of men, or of
women.”

Chapman v. King, 154 Fed. (2d), 462 and 463.
Defendants were wholly within their rights in denying

to the plaintiff and other negroes membership in the Demo
cratic party and excluding them from voting in the Demo
cratic primary, under the universally established principle
that private, voluntary associations, such as the Demo-

36 Elmore et al, Plaintiff, v. R ice et al.. Defendants

cratic party of South Carolina, have a complete and un
restricted delectus personarum\ and such rights are pro
tected by the traditional American rights to life, liberty and
the pursuit of happiness, and freedom of assembly, guar
anteed by the Constitution of the United States.

4 A. J., Pages 462-463 (Citing numerous eases from
all jurisdictions):

Robinson v. Holman, 181 Ark., 428, 26 S. W. (2d),
66, Arkansas Sup. Ct., March 24, 1930. Cert. De
nied in 282 U. S., 804, 75 L. Ed., 722;

Chapman v. King, 154 Fed. (2d), Page 460 (Cert.
Denied 66 Sup. Ct., 905, 90 L. Ed., 1025, April 1,
1946);

The Gradwell Case, 243 U. S., 487, 61 L. Ed., 865;
The Newberry Case, 256 U. S., 232, 65 L. Ed., 913;
The Civil Rights Cases, 1883, 3 Sup. Ct., Page 18,

109 U. S., Page 17, 27 L. Ed., Page 835.

“ Membership in a voluntary association” , as is said
in 4 American Jurisprudence, “ is a privilege which may
be accorded or withheld, and not a right which can be
gained independently and then enforced. The courts cannot
compel the admission of an individual into such an associa
tion, and if his application is refused, he is entirely without
legal remedy, no matter how arbitrary or unjust may be
his exclusion. The acceptance of, or intention by the per
son in question to accept, membership in an unincorporated
association is necessary to make him a member of the or
ganization. ’ ’

4 American Jurisprudence, Pages 462-463.

The Gradwell Case and the Newberry Case expressly
applied this principle and held in effect that the conduct
and activities of political parties and their primaries were
private matters with which the United States Courts had

no concern. The Smith-Allwright Case and the Classic Case
departed from the doctrine of the Gradwell and Newberry
cases only upon the theory that the statutes involved had
required the holding of the primary and limited the candi
dates in the general election to the nominees of such pri
mary, and hence, had thereby made the primary an essen
tial part of, and necessary step in, the electoral process.
The logic of the Smith-Allwright and Classic cases is
simply that where the statutes have made the electoral
process consist of two necessary steps: (1) the primary,
and (2) the general election, then, of course, the right to
vote in the primary therein is equally protected with the
right to vote in the general election.

In the case of Robinson v. Holman, 181 Ark., 428, 26
S. W. (2d), 66, 70 A. L. R., 1480 (writ of certiorari denied
in 282 U. S., 804, /5 L. Ed., 722), which is in many ways
on all-fours with the case at bar, the above principle was
recognized and enforced with reference to the political
party in Arkansas.

The court dismissed the case for want of equity and the
action of the lower court was affirmed by the Supreme
Court. The decision was based squarely upon the ground
that the party was a private, voluntary association, unreg
ulated by statute.

“ A political party,” said the court, “ such as the Demo
cratic party in Arkansas is an unincorporated, voluntary
association of persons sponsoring certain ideas of govern
ment or maintaining ‘ certain political principles or beliefs
in the public policies of the government’. Walls v. Bnm-
didge, 109 Ark., 250, 160 S. W., 230, Ann. Cas., 1915-C;
Grigsby v. Harris (D. C.), 27 F. (2d,?.

“ The State has nothing to do with the holding of pri
mary elections. The statute fixes the date for holding

Elmore et al., Plaintiff, v. R ice et aL, Defendants 37

primary elections, but the state appoints no officers to hold
a Democratic primary. It does not pay the cost thereof.
The machinery for holding a Democratic primary election
in Arkansas is entirely an instrumentality created by the
party with which the state, as a state, has nothing to do,
whereas in a general election the entire machinery for hold
ing such election is the creature of the state.

# # #

‘ ‘ Being a voluntary political organization and not an
agency of the state, the Democratic party had the right to
prescribe the rules and regulations defining the qualifica
tions of membership and to provide that only white people
could become members, without coming within the prohibi
tion of either the Fourteenth or Fifteenth Amendment, The
fact that nominees of the Democratic Party in Arkansas
are always elected at the general election does not alter
the situation; neither does the fact that appellants are Dem
ocrats, that they believe in the principles of the Democratic
party, and that they supported the nominees in previous
general elections. There is no more reason to say that the
Democratic party in Arkansas cannot make the rules in
question, than there is to say that the Masonic bodies in
Arkansas may not exclude them on account of color.”

The decision was in effect affirmed by the United States
Supreme Court in its Per Curiam order entered on March
24, 1930, dismissing the petition for the writ of certiorari
and expressly stating that its action was taken “ for want
of jurisdiction” . We submit that the principle therein
stated is controlling in the case at bar.

The same principle is recognized and applied in the
famous Civil Rights Cases ( U. S. v. Nichols, U. 8. v. Single-
ton; Robinson et al. v. Memphis and Charleston Railroad
Co., 109 U. S., Page 3, 27 L. Ed., 836). In those cases, which

38 Elmore et al., Plaintiff, v. Rice et at, Defendants

have been regarded as leading cases from the time of their
decision in 1883 down to the present, it was recognized and
decided that it was not the intent or purpose of the Thir
teenth, Fourteenth, and Fifteenth Amendments to the
United States Constitution to protect negroes from dis
crimination at the hands of private individuals or corpora
tions, but only to protect them against the action of the
state governments and not to undertake to enforce equal
social rights between the races.

We submit it can not validly be contended that the
Democatic party of South Carolina is anything but a pri
vate voluntary association within the meaning of the cases
hereinabove cited. There are no statutes regulating a Demo
cratic primary. In no sense is it a part of the electoral proc
ess of this State. The State pays no portion of its expenses.
There is no requirement for the holding of the primary.
Those nominated in the primary have no special status or
standing in the general election. There is no requirement
that one be nominated in any such primary in order to be
eligible as a candidate in the general election. The voters
in the primary are different in classes from those who are
authorized to vote in the general election. On the one hand,
the primary is more inclusive in that eighteen year-olds
are allowed to vote. On the other hand, it is in some re
spects more exclusive in that only white Democrats are
permitted to be members of the party or to vote.

Also, it is important to note that in South Carolina the
Democratic party conducts all of its activities on private
property. This, coupled with the other facts involved,
clearly shows that the Democratic party is a private, vol
untary association.

It must be remembered that this is a suit against named
defendants for damages on account of acts alleged to have

Elmore et aL, Plaintiff, v. Rice et aL, Defendants 39

been committed in the primary of 1946. It certainly can
not validly be contended that the repealing Acts of the
1943 and 1944 Session of the South Carolina Legislature
were invalid so as to create or continue any liability of de
fendants for their actions taken in 1946. Such defendants,
it is submitted, were absolutely entitled to rely upon the
repeal of such statutes and upon the fact that the Demo
cratic party was a private voluntary association, governed
wholly and solely by its own rules.

The situation here is the reverse of condemning one
under an ex post facto law. The Court’s decision in effect
finds the defendants guilty under laws which had already
been repealed.

40 Elmore et al., Plaintiff, v . Rice et al., Defendants

We believe it is conceded by the plaintiff as it appar
ently was by the Court below, that if the Democratic party
is a private, voluntary association, there is unrestricted
choice of membership and of the enactment of rules for
membership and voting therein. It is in effect contended
however by the plaintiff, and was apparently held in effect
by the Court, that the Democratic party is not a private,
voluntary association. The Court says in its decision that
it is faced “ with the final decision as to whether or not the
present Democratic Party of South Carolina, because it is
no longer governed by State statutes, is a private organ
ization and (as was said in argument) must be treated as
a private, business or social club * * The Court
then proceeds to discuss the matter and to hold in effect
that because the party continues to operate through clubs
and conventions and to hold nominating primaries, it is
essentially the same as it was before the repeal and not a
private, voluntary association.

We submit that this holding and contention is wholly
unsound.

Elmore et al., Plaintiff, v . Rice et al., Defendants 41

In reaching this conclusion, the Court apparently dis
regards the fact that many of the rules of the party pre
vious to the repeal were matters of statutory law, enforce
able by fine or imprisonment.

The fact that the party and its primary (along with
any other parties) were before the repeal regulated by
statute in many particulars and the rules and regulations
enforced by statutory penalties was, and is, a distinction
of vital importance. It is submitted that no further analysis
of the differences is really necessary.

However, in the light of plaintiff’s argument and for
the convenience of the Court, we list here below in parallel
columns some of the differences between the status of the
party and its primary before the repeal statutes and the
status after such repealing statutes:

Status of Party and Primary Prior
to Repealing Statutes of

1943 and 1944
1. Regulated in many details by

state statute.
2. Party membership confined to

members 21 years and over.
3. Many regulations affecting the

party and primary subject to
repeal only by the State Leg
islature.

4. Rules and statutes enforced by
fine or imprisonment, or as for
perjury.

Status of Party and Primary A fter
Repealing Statutes and in the

1946 Primary

1. Wholly unregulated by statute.
2. Party membership open to

members of 18 years and over.
3. All party rules and regula

tions subject to repeal or
change by the state convention
o f party.

4. Violation of rules enforced
only by expulsion from the
party.

The test as to whether such a party is to be consid
ered a public organization and as such an agency of the
State or a private association, is and must he whether it
is so created by statute and charged with public govern
mental functions. As said in the Smith v. Allwright case:
“The party takes its character as a state agency from the
duties imposed upon it by state statutes * *

42 E lmore et al., Plaintiff, v. E ice et al., Defendants

In this connection, it is pointed out that the bulk of
the statutes were repealed prior to the decision in the
Smith-Allwright case.

The Legislature of the State of South Carolina had
as much right to repeal the regulatory statutes as to enact
such statutes and the repeal was equally as effective as the
enactment. It is submitted that the Legislature had a per
fect right to repeal such statutes and such repeal was per
fectly valid regardless of the motive.

It has long been established that the Courts will not
inquire into the motives of the Legislature (McCrary v.
United States (1904), 195 U. S., 27, 59 L. Ed., 78).

, As a matter of fact, we do not admit that before the
/ repeal, plaintiff would have been entitled to vote in the
! Democratic primary. On the contrary, we submit that under

fj the tests applied in the Smith v. Allwright case and under
) the “ custom and practice” in South Carolina (Cf. Gardiner
; v. Blackwell, Smith v. Blackwell (115 Fed., 186)), plaintiff

even before the repeal would not have been entitled to vote
in the South Carolina Democratic primary.

It is obvious that the party, after the repeal of the
statutes, was wholly at liberty, so far as the state was con
cerned, to include or exclude negroes. The party by such
repeal was left entirely free to make its own rules and reg
ulations and prescribe its own qualifications. The state has,
and had, no share whatsoever in the enactment or enforce
ment of the provision limiting the membership to white
Democrats. The adoption, as well as the continuation, of
this qualification is a matter left wholly to the membership
of the Democratic party.

Plaintiff, and the Court below, seem entirely to have
missed the effect of the repealing statutes and to have dis-

regarded the requirement in the Smith-Allwright Case that
it must be state action which compels, and in the Chapman
v. King case that the State must put its power behind the
rules of the party.

The vital effect of the removal of the statutory control
and of the penalties should be obvious.

The situation is somewhat analogous to that of a group
of people organizing themselves into a legal corporation.
The corporation is, of course, a legal entity which is dif
ferent from the individuals previously composing it, though
the individuals are the same. Likewise, if the corporation
should be dissolved and the stockholders form themselves
into a partnership, the partnership would be a different
legal entity and there would result an entirely different le
gal relationship from the previously existing corporation.
Such examples could be multiplied ad, infinitum.

It would seem, however, needless to labor the obvious.
When the regulatory statutes were repealed and all penal
ties removed, the Democratic party resumed its status as
a wholly private, voluntary association.

It must be obvious also that if Judge W aring’s deci
sion is to be upheld, then the right to form political parties
in this country is destroyed. Judge Waring holds in effect
that all qualified electors, regardless of their belief in the
principles of the Democratic party, are entitled, by virtue
of being qualified electors, to vote in such Democratic pri
mary. This, of course, destroys the very basis of all politi
cal parties. Common belief in the principles of government
advocated is the essential aspect of all political parties.
In this case it is obvious that one aspect of the common be
liefs of the Democratic party of South Carolina is that the
whites and the negroes should be organized in separate
political parties. It would seem therefore that no person

Elmore et al., Plaintiff, v. Rice et al., Defendants 43

could become a member of the Democratic party unless he
subscribes to that belief. However, Judge Waring’s deci
sion holds in effect that all qualified electors, as such, are
entitled to vote in the Democratic primary. By the same
token they would be entitled to vote in the Republican party
primary or even, though Communistic in belief, would be
entitled to vote in the Democratic primary.

' Also, this holding would, of course, equally apply to
the C. I. 0., or to the American Federation of Labor, or to
the League of Women Voters, or to any other political or
ganization, and a negro or any other citizen, if a qualified
elector, would be entitled to membership in such political
organization.

This, it is submitted, amounts to a reductio ad absur-
dum of the holding in the opinion of the Court below.

SUMMARY AND CONCLUSION

In conclusion, it is earnestly and confidently submitted
that the plaintiff has no right to recovery in this case:

The South Carolina Democratic party is wholly un
regulated by Statute. The defendants were acting wholly
as a result of the party’s rules. Such rules are enforceable
only by expulsion from the party. The qualifications for
membership in the party are different from the general
qualifications for voting in this State. There are no stat
utes or laws of any sort abridging or restricting plaintiff’s
right to vote.

It is settled by all the authorities that in private vol
untary associations, such as the Democratic party, the
members of such parties have the complete and unrestricted
right to choose their membership and to fix the qualifica
tions thereof. There are no constitutional rights involved

44 Elmore et al., Plaintiff, v. Rice et al., Defendants

in such cases. Plaintiff has no more right to vote in the
Democratic primary in the State of South Carolina than
to vote in the election of officers of the Forest Lake Coun
try Club or for the officers of the Colonial Dames of Amer
ica, which principle is precisely the same.

The only cases, such as the Smith v. Allwright case and
the Classic case, which plaintiff can cite are cases where
the States had enacted laws and statutes regulating the
primaries and in effect taken over the control of such pri
maries and made the primaries an essential part of the
statutory electoral process. Such cases expressly and re
peatedly state that the decisions depended upon such stat
utory control, and in the latest of these cases, Chapman v.
King, it was expressly pointed out that in the absence of
such statutory control, there is no reason why there should i.
not be separate parties “ composed wholly of whites, or {!✓
wholly of colored people, or wholly of Jews, or of men, or /|
of women” .

Also, it is uniformly established by the authorities that
in cases such as this, the Federal Courts have no jurisdic
tion unless the defendants involved at the time in question
were acting under color of some State statute or law and
unless the action complained of was in effect State action.
In this case, on the contrary, defendants were acting wholly
as a result of the rules of the Democratic party and en
tirely independent of any State statutes. The State of
South Carolina took no control or responsibility whatso
ever for the Democratic primary held in 1946, at which
time plaintiff claims that he was denied the right to vote.
As was indicated in the Classic Case, a person to be liable
must be guilty of some “ misuse of power possessed by
virtue of State law and made possible only because the
wrongdoer is clothed with the authority of the State law” .

Elmore et al., Plaintiff, v. Rice et al, Defendants 45

Finally, it is submitted that to allow the plaintiff to
recover in the case at bar would constitute an essential and
vital destruction of the rights of the people of the State of
South Carolina in the enjoyment of life, liberty and the
pursuit of happiness. These rights constitute the basic
principles of American liberty. It is upon such rights that
this country was founded and upon them its greatness has
been achieved. It is submitted that it would be a violation
of such fundamental rights of the citizens to require them
to take into their private associations, such as the Demo
cratic party or other private associations, or like associa
tions, members who were not acceptable to the member
ship. Such a holding, also, it is submitted, would be in vio
lation of the constitutional guarantee contained in the First
Amendment to the United States Constitution, guarantee
ing to the citizens freedom of peaceable assembly. It is
submitted that the whites of this State have certainly got a
clear Constitutional right to assemble in mass meetings or
for the purpose of nominating primaries and to choose the
persons who shall participate in such meetings or prima
ries.

46 Elmore et al., Plaintiff, v. Rice et al., Defendants

It is submitted that not only has the plaintiff in this
case not shown the violation of any right to which he is
constitutionally entitled, but that to grant the right which
he claims would amount to a violation of the most funda
mental rights of all the other citizens of the State of South
Carolina. To grant the relief prayed for in this Complaint
would be fraught with the most serious dangers to the basic
rights of American citizenship—the right to life, liberty
and the pursuit of happiness. In seeking to rectify one al-

leged wrong, it is submitted, the Court would be accom
plishing an incalculably greater injustice to the body politic.

Respectfully submitted,

CHRISTIE BENET,

W. P. BASKIN,

CHARLES B. ELLIOTT,

IRVINE F. BELSER,

P. H. McEACHIN,

J. PERRIN ANDERSON,

W. BRANTLEY HARVEY,

EDGAR A. BROWN,

YANCEY A. McLEOD,

Elmore et al., Plaintiff, v. Rice et al., Defendants 47

Attorneys for Appellants.

APPENDIX FOR APPELLANTS

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5664

CLAY RICE, ET A L . , A p p e l l a n t s ,

versus
GEORGE ELMORE, o n b e h a l f of h i m s e l f a n d o t h e r s

SIMILARLY SITUATED, APPELLEE

On A ppe a l F r o m T h e D is t r ic t C o u r t of t h e U n it e d
S t a t e s for t h e E a s t e r n D is t r ic t of S o u t h

C a r o l in a

FILED
OCT 10 1947

CLAUDE M. DEAN
CLSRK.

CHRISTIE BENET,
Columbia, S. C.

IRVINE F. BELSER,
Columbia, S. C.

CHARLES B. ELLIOTT,
Columbia, S. C.

W ILLIAM P. BASKIN,
Bishopville, S. C.

P. H. McEACHIN,
Florence, S. C.

J. PERRIN ANDERSON,
Greenwood, S. C.

W. BRANTLEY HARVEY,
Beaufort, S. C.

EDGAR A. BROWN,
Barnwell, S. C.

YANCEY A. McLEOD,
Columbia, S. C.

Attorneys for Appellants.

The R. L. Bryan Company, Legal Printers, Columbia, S. C.

INDEX TO APPENDIX
P a g e

Complaint .............................................................................. 1

Notice of Motion to Make Complaint More Definite and
Certain and to Strike Certain Parts of the Com
plaint ................................................................................ 9

Answer ................................................................................... 12

Order Refusing Motion to Make Afore Definite and Cer
tain and Motion to S trik e ............................................ 18

Minute Sheet of Trial Held on June 3, 1947 .............. 19

Defendants’ Appendix One as Part of A n sw er.......... 22

Stipulation Filed June 3, 1947 .......................................... 33

Minute Sheet of Trial Held on June 4,1947 .................. 39

Transcript of Testim ony................................................... 40

Opinion of the C o u rt ......................................................... 78

Court’s Findings of Fact and Conclusions of Law . . . . 100

Order and Judgment of the C ou rt ................................... 105

Portion of Designation of Record Dated August 15,
1947, containing “ Points” ....................................... 106

APPENDIX FOR APPELLANTS

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5664

CLAY RICE, ET AL., A p p e l l a n t s ,

versus

GEORGE ELMORE, o n b e h a l f of h i m s e l f a n d o t h e r s

SIMILARLY SITUATED, APPELLEE

On A p p e a l F r o m T h e D is t r ic t C o u r t of t h e U n it e d
S t a t e s f o r t h e E a s t e r n D is t r ic t of S o u t h

C a r o l in a

Civil No_____

COMPLAINT
1. The jurisdiction of this Court is invoked under sub

division 1 of Section 41 of Title 28 of the United States
Code, this being an action at law which arises under the
Constitution and Laws of the United States, viz., Sections 2
and 4 of Article I, and Amendments Fourteen, Fifteen and
Seventeen of said Constitution and Sections 31 and 43 of
Title 8 of the United States Code, wherein the matter in
controversy exceeds, exclusive of interest and costs, the
snm of $3,000.00. The jurisdiction of this Court is also in
voked under subdivision 11 of Section 41 of Title 28 of the

2 R ic e et al, A p p e l l a n t s , v. E l m o e e , A p p e l l e e

United States Code, this being an action to enforce the
right of a citizen of the United States to vote in the State
of South Carolina. The jurisdiction of this Court is further
invoked under subdivision 14 of Section 41 of Title 28 of
the United States Code, this being an action at law author
ized by law to be brought to redress the deprivation under
color of law, statute, regulation, custom and usage of a
State of rights, privileges and immunities secured by the
Constitution of the United States, viz., Sections 31 and 43
of Title 8 of the United States Code, all of which will ap
pear more fully hereafter.

2. Plaintiff shows further that this is a proceedings for
a declaratory judgment and in injunction under Section 400
of Title 28 of the United States Code (Section 274D of the
Judicial Code) for the purpose of determining a question
in actual controversy between the parties, to-wit, the ques
tion whether the practice of the defendants in enforcing and
maintaining the policy, custom and usage by which plaintiff
and other Negro citizens similarly situated who are quali
fied electors and denied the right to cast ballot at the Demo
cratic primary elections in South Carolina solely on account
of their race or color, violates Sections 2 and 4 of Article
I, and Amendments Fourteen, Fifteen and Seventeen to
the Constitution of the United States.

3. All parties to this action, both plaintiff and defend
ants, are citizens of the United States and of the State of
South Carolina, and are resident and domiciled in said
State.

4. The plaintiff, George Elmore, is a Negro, a native-
born citizen of the United States, is more than twenty-one
years of age and has resided in Ward 9 Precinct, in Rich
land County, South Carolina, continuously for a period of
more than eight years prior to August, 1946, and at that
time had in his possession a poll tax receipt. Plaintiff at all
times mentioned herein was and is a duly and legally quali
fied elector under the Constitution and laws of the United
States and of the State of South Carolina, and is subject to
none of the disqualifications provided for voting under the
Constitution and laws of the FTnited States or the State of

A p p e n d i x 3

South Carolina. Plaintiff is a believer in the tenets of the
Democratic Party and has never voted for any candidates
other than those of the Democratic Party.

5. This is a class action authorized by Rule 23A, The
Rules of Civil Procedure of the District Courts of the
United States. The rights involved are of common and gen
eral interest to the members of the class represented by the
plaintiff, namely, Negro citizens of the United States and
residents of the State of South Carolina similarly situated
who are duly cpralified electors under the Constitution and
laws of the United States and of the State of South Caro
lina who have been denied the right to vote in the Demo
cratic Primaries in the State of South Carolina solely be
cause of their race and color. The members of the class are
so numerous as to make it impracticable to bring them all
before the Court and for this reason plaintiff prosecutes
this action in his own behalf and on behalf of the class with
out specifically naming said members herein.

6. Defendants, Clay Rice, Mrs. A. B. Parker, Leone
Bennett, Mrs. Sam Carter, Jr., Charles Stork, Mrs. H. E.
Snipes, Mrs. Earl Lightsey, Mrs. E. L. Koon, are election
managers of primary elections in Ward 9 Precinct, Rich
land County, South Carolina. Defendant, John I. Rice, is
Chairman and defendants, Lane L. Bonner, Anne Agnew,
Charles S. Henry, R. Cliff Harper, Fred T. Harrell, J. N.’
Land, Jr., J. B. Heine, B. J. Engle, C. D. Wilson, J. L.
Brazefi, Frank L. Taylor, A. S. Coleman, B. F. Turner,
J. L. Copton, George N. Nungazer, C. E. Newman, H. F.
McLendon, F. H. Livingston, Del Booth, J. D. Riley, J. W.
Gorman, D. T. Cloaninger, J. Y. Reese, C. P. Wingard, S.
J. Ivinsler, James H. Hammond, E. V. Neeley, D. F. Martin,
Thomas E. Grigsby, F. N. Franklin, E. E. Dority, J. W.
Ford, J. L. Snipes, Ware Carnes, Mrs. F. H. Clark, Harold
Douglas, J. W. Shealy, W. H. Koon, W. T. J. Lever, V. F.
Funderburk, W. F. Wheeler, W. J. Clark, A. B. Langley,
J. E. Belser, Jr., G. C. Keefe, Clarence Richards, R. K.
Gibson, D. M. Winter, J. F. Freeman, Kenneth R. Kreps,
Ollie Mefford, are members of the Richland County Demo
cratic Executive Committee. The Richland County Demo-

4 Rice et al., A ppellants, v. E lmore, A ppellee

cratic Executive Committee represents the local county unit
of the Democratic Party of South Carolina. The primary
purposes of the Democratic Party of South Carolina are
to conduct primary elections and to prepare official ballots
containing the names of Democratic nominees for use in
general elections.

7. On August 13, 1946, there was held in the State of
South Carolina and in Richland County of said State a pri
mary election for nomination of Democratic candidates for
the House of Representatives of the United States and vari
ous state officers. The plaintiff and other qualified Negro
electors presented themselves on the 13th day of August,
1946, to the regular polling place of Ward 9 Precinct in
Richland County during the regular hours that the polling
place was open and requested ballots and to be permitted
to vote in said primary election. Defendant election man
agers refused to permit plaintiff and other qualified Negro
electors to vote in said primary election solely because of
race or color pursuant to instructions of defendant John
I. Rice. Defendant, John I. Rice, acting as Chairman of the
Richland County Executive Committee refused to permit
plaintiff and other qualified Negroes to vote in said election
pursuant to rules and regulations adopted by the Demo
cratic Party of South Carolina and its Richland County
Unit and enforced by defendants, which rule prohibited
Negroes from voting in said Democratic Primary elections
solely because of their race and color.

8. The Constitution of the United States secures to
qualified voters within the State of South Carolina the right
to cast their ballots at the elections of representatives and
senators in the United States Congress. Pursuant to the
provision of Sections 2 and 4 of Article I and Amendment
Seventeen of the Constitution of the United States, the
State of South Carolina has prescribed the qualifications
for electors in Article II of the South Carolina Constitu
tion. Copies of these provisions are filed herewith as Ex
hibit A.

9. In South Carolina the Democratic Primary effective
ly controls the choice of United States Senators and Eep-

A ppendix 5

resentatives. Since 1875 successful candidates in Demo
cratic Primaries have always been elected in subsequent
general elections. During the past eight presidential elec
tions, Democratic candidates have received from 95.2 to
98.7 percent of the total vote in general elections, with the
exception of one election where the Democratic candidates
received 91.4 percent. Tables showing the results of elec
tions in South Carolina from 1880 to date are filed herewith
as Exhibit B.

10. The Democratic Primary election in South Caro
lina is the only election at which a qualified voter in South
Carolina can make any meaningful choice among candi
dates for United States Senator and Representative in Con
gress.

11. From 1888 to 1915, the State of South Carolina
maintained varying degrees of statutory control over pri
mary election. In 1915 the General Assembly of South Car
olina enacted comprehensive election laws providing for
full statutory control of primary as well as general and
special elections. Prior to April, 1944, statutes of South
Carolina regulated the primary as an integral part of the
procedure of choice of senators and representatives within
the meaning of Article 1, section 2, of the United States
Constitution and the Seventeenth Amendment thereto.

12. On April 3, 1944, the Supreme Court of the United
States in the case of Smith v. Allwright, recognized the
principle that the right of citizens of the United States to
participate in the choice of elected officials cannot be nulli
fied by a state through casting its electoral process in a
form which permits a private organization to practice ra
cial discrimination in the election. Recognizing the applica
bility of such a decision to South Carolina, the Governor of
that State, a member of the Democratic Party of South Car
olina, immediately called a special session of the General
Assembly of that state to meet on April 14, 1944. The sole
purpose of such special session was to take legislative steps
intended to evade and circumvent the decision of the Su
preme Court of the United States in the case of Smith v.
Allwright, supra. In his message to the General Assembly

6 R ice et al., A ppellants, v. Elmore, A ppellee

of South Carolina called in special session, the Governor
of South Carolina stated: “ I regret that this ruling by the
United States Supreme Court has forced this issue upon us
but we must meet it like men” ; and: “ History has taught
us that we must keep our white Democratic primaries pure
and unadulterated so that we might protect the welfare
and honor of all the people of our state.” The Governor
called for the repeal of all statutes mentioning primary
elections and in conclusion stated: “ If these statutes are
repealed, in my opinion, we will have done everything with
in our power to guarantee white supremacy in our pri
maries of our state insofar as legislation is concerned.
Should this prove inadequate, we South Carolinians will
use the necessary methods to retain white supremacy in our
primaries and to safeguard the homes and happiness of our
people. White supremacy will be maintained in our pri
maries. Let the chips fall Avhere they m ay! ” A copy of the
full text of the Governor’s call of the special session in 1944
and his message to the General Assembly of South Caro
lina on April 14, 1944, is attached hereto as Exhibit C.

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

14. There has been no substantial change in the con
duct of primary elections since the repeal of the above-men
tioned statutes. The Democratic Party of South Carolina
conducted the primary election of 1944 and 1946 in essen
tially the same manner as when the above-mentioned stat
utes were in effect. A comparative table showing the per
tinent repealed statutes and the rules of the Democratic
Party in effect in 1946 are set out in Exhibit D.

A ppendix 7

15. The Democratic Primary elections held in South
Carolina in 1944 and 1946 continued to effectively control
the choice of United States Senators and Representatives
in Congress as well as state officials.

16. The refusal of the defendants to permit the plain
tiff and other qualified Negro electors to exercise their
choice in the Democratic Primary to select Democratic nom
inees for United States Congressmen was a denial to plain
tiff and others on whose behalf he sues of the right to ex
ercise their choice of Congressmen.

17. Prior to April, 1944, the Democratic Party in South
Carolina was performing an essential governmental func
tion in conducting and supervising primary elections which
effectively controlled the choice of both federal and state
officers. Since the repeal of these statutes in April 1944, the
Democratic Party has continued performing that same gov
ernmental function in conducting and supervising primary
elections which continue to effectively control the choice of
both federal and state officers as before. The refusal of de
fendants while acting in such capacity to permit plaintiff
and other qualified Negroes to participate in such primary
elections because of race and color constitutes a denial of
rights secured under the Fourteenth and Fifteenth Amend
ments to the Federal Constitution.

18. The Democratic Party, in the absence of statutory
provisions requiring any particular state officials to pre
pare ballots for the general election, has always prepared
the ballot for use in the aforesaid election and has super
vised the distribution of these ballots for use in the afore
said election and has supervised the distribution of these
ballots. In furnishing ballots in the general election to quali
fied electors desiring to participate therein, the Democratic
Party performs an essential governmental function within
the meaning of the Fourteenth and Fifteenth Amendments
to the Federal Constitution.

19. The actions of defendants herein in denying to the
plaintiff and other qualified Negro electors of the State of

8 Rice et al., A ppellants, v. Elmore, A ppellee

South Carolina the right to vote in the congressional pri
mary for choice of Democratic candidates for Congress was
an interference with the effective choice of the voters at the
only stage of the election procedure when their choice would
have any practical effect on the ultimate result, the choice
of United States Senator and a Congressman to represent
the district; the denial of this right constituted a denial or
abridgment of a right established and guaranteed by the
United States Constitution; i. e., Sections 2 and 4 of Article
I, and Amendments Fourteen, Fifteen and Seventeen there
to.

20. There is between the parties an actual controversy
as hereinbefore set forth.

21. The defendants by their illegal and wrongful acts
complained of herein damaged this plaintiff in the sum of
and to the extent of Five Thousand ($5,000.00) Dollars.

22. The plaintiff and others similarly situated and af
fected, on whose behalf this suit is brought, are suffering
irreparable injury and are threatened with irreparable in
jury in the future by reason of the acts herein complained
o f ; they have no plain adequate or complete remedy to re
dress the wrong and illegal acts herein complained of other
than this action for damages, for a declaration of rights and
an injunction; any other remedy to which plaintiff and
those similarly situated could be remitted would be at
tended by such uncertainties and delays as to deny sub
stantial relief, would involve multiplicity of suits, cause
further irreparable injury, damage, vexation and incon
venience to the plaintiff and those similarly situated.

W HEREFORE, plaintiff respectfully prays the Court
that upon filing of this complaint, as may appear proper
and convenient to the Court, the Court advance this case on
the docket and order a speedy hearing of this action ac
cording to law, and upon such hearings.

1. That this Court adjudge and decree, and declare the
rights and legal relations of the parties to the subject mat
ter in controversy, in order that such declaration shall hâ e
the force and effect of a final judgment or decree.

A ppendix 9

2. That this Court enter a judgment or decree declar
ing that the policy, custom or usage of the defendants, and
each of them, in denying plaintiff and other qualified Negro
electors the right to vote in Democratic primary elections
in South Carolina, solely on account of their race or color,
is unconstitutional as a violation of Sections 2 and 4 of
Article I, and Amendments Fourteen, Fifteen and Seven
teen of the United States Constitution.

3. That this Court issue a permanent injunction for
ever restraining and enjoining the defendants, and each of
them, from denying qualified Negro electors the right to
vote in Democratic primary elections in South Carolina
solely because of color.

4. That the plaintiff have judgment for Five Thousand
($5,000.00) Dollars damages.

5. That this Court will allow plaintiff his costs herein,
and such further, other, additional or alternative relief as
may appear to the Court to be just and equitable in the
premises.

(signed) HAROLD R, BOULWARE
Harold R. Boulware
1109% Washington Street
Columbia, South Carolina

(signed) THURGOOD MARSHALL
Thurgood Marshall
20 West 40th Street
New York, New York

Attorneys for Plaintiff
FILED Feb. 21 1946 Ernest L. Allen C. D. C. U. S. E

D. S. C.

Civil Action No. 1702
NOTICE OF MOTION

TO: HAROLD R. BOULWARE, ESQUIRE AND THUR
GOOD MARSHALL, ESQUIRE, ATTORNEYS FOR
THE P L A IN T IF F :
YOU WILL PLEASE TAKE NOTICE that the un

dersigned attorneys on behalf of the defendants above

named, without waiving but expressly reserving the right
to insist upon the objection to the jurisdiction of the Court,
will move before the Honorable George Bell Timmerman,
Judge of the United States District Court for the Eastern
District of South Carolina, at his Chambers, at the United
States Court House, Columbia, South Carolina, on the 22nd
day of April, 1947, for an order requiring the plaintiff to
make the complaint heretofore served herein more definite
and certain by separately stating the alleged causes of ac
tion attempted to be set forth therein, to-wit:

1. The alleged cause of action said to arise under sub
division 1 of Section 41 of Title 28 of the United States
Code; and

2. The alleged cause of action said to arise under sub
division 11 of section 41 of Title 28 of the United States
Code; and

3. The alleged cause of action said to arise under sub
division 14 of Section 41 of Title 28 of the United States
Code; and

4. The alleged cause of action or proceeding said to
arise under Section 400 of Title 28 of said United States
Judicial Code.

YOU W ILL PLEASE FURTHER TAKE NOTICE
that at the same time and place the undersigned attorneys
on behalf of said defendants will move to strike from the
complaint, on the ground that the said allegations are ir
relevant, redundant, and argumentative or plead matters
of law, the following portions thereof:

1. Each and every clause, sentence and allegation con
tained in paragraphs eight (8), nine (9), ten (10), eleven
(11) and twelve (12) of said complaint.

2. Exhibit B referred to in paragraph nine (9) of said
complaint and attached to said complaint.

3. Exhibit C referred to in paragraph twelve (12) of
said complaint and attached to said complaint.

4. Each and every clause, sentence and allegation con
tained in paragraphs fourteen (14) and fifteen (15) of said
complaint.

10 Rice et al., A ppellants, v. Elmore, A ppellee

A ppendix 11

5. Exhibit D referred to in paragraph fourteen (14)
of said complaint and attached to said complaint.

6. Each and every clause, sentence, and allegation con
tained in paragraphs seventeen (17) and eighteen (18) of
said complaint.

7. The word election” in the caption of the summons
and complaint and the word “ election” in the body of the
complaint wherever said word “ election” is used to denote
election manager, or primary elections, or elections pursu
ant to the rules and regulations of the Democratic Party.

8. That portion of paragraph thirteen (13) of the com
plaint, reading as follows:

“ composed solely of members of the Democratic Party
of South Carolina.”

April 10, 1947.
Address:
912-13 Liberty Life Building
Columbia, South Carolina

/S / CHARLES B. ELLIOTT
Charles B. Elliott, Columbia, S. C.

/ S / IRVINE F. BELSER
Irvine F. Belser, Columbia, S. C.

/ S / P. H. McEACHIN
P. H. McEachin, Florence, S. C.

/ S / J. PERRIN ANDERSON
J. Perrin Anderson, Greenwood, S. C.

/ S / W. BRANTLEY HARVEY
W. Brantley Harvey, Beaufort, S. C.

/ S / EDGAR A. BROWN,
Edgar A. Brown, Barnwell, S. C.

/ S / Wm. P. BASKIN
Wm. P. Baskin, Bishopville, S. C.

FILED APR 11 1947 ERNEST L. ALLEN C. D. C H.
S. E. D. S. C.

A TRUE COPY. ATTEST
ERNEST L. ALLEN

Clerk, U. S. District Court,
East. Dist. So. Carolina

Civil Action No. 1702
ANSWER

The defendants, without waiving bnt expressly reserv
ing the right to insist upon their motions to strike and make
more definite and certain, by way of answer, respectfully
show to this Honorable Court.

First, For a First Defense:

1. That this Honorable Court is without jurisdiction
of the subject matter of this controversy, for the reason
that it appears from the face of the complaint that no sub
stantial Federal question is involved, and that the alleged
Federal questions are merely pretensive; and particularly:

(a) That the jurisdictional amount does not in reality
exist so as to give the Court jurisdiction under subdivision
1 of Section 41 of Title 28 of the United States Judicial
Code; and

(b) That this is not in reality an action to enforce the
rights of a citizen to vote so as to give the Court jurisdic
tion under subdivision 11 of Section 41 of Title 28 of the
United States Judicial Code; and

(c) That the alleged acts complained of were not taken
under color of any law, statute, regulation, custom and us
age of a State so as to bring the matter within the jurisdic
tion of the Court under subdivision 14 of Section 41 of Title
28 of the United States Judicial Code; and

(d) That under Section 400 of Title 28 of the United
States Judicial Code, this Court does not have jurisdiction,
unless jurisdiction exists under and by virtue of some other
section of the Judicial Code, which jurisdiction is expressly
denied; said Section 400 does not enlarge the jurisdiction
of this Honorable Court.

Second, For a Second Defense:

1. That the complaint fails to state facts sufficient to
constitute a cause of action, or to entitle the plaintiff to the

12 R ice et al., A ppellants, v. E lmore, A ppellee

A ppendix 13

relief demanded, or to any relief at law or in equity, in that
it appears upon the face of the complaint that the Demo
cratic Party of South Carolina is a private voluntary asso
ciation of individuals, mutually acceptable to each other,
and is not created or regulated by virtue of any statute or
law but solely by the rules of said voluntary association;
that the plaintiff has not been deprived of any rights, priv
ileges or immunities secured or protected under the Con
stitution or laws of the United States. It further appears
that the complaint fails to state a claim against defendants
upon which relief can be granted.

Third, For a Third Defense:

1. Defendants deny each and every allegation con
tained in paragraph one (1) of the complaint.

2. Defendants deny each and every allegation con
tained in paragraph two (2) of the complaint.

3. Defendants admit the allegations contained in para
graph three (3) of the complaint.

4. Defendants have no knowledge or information suffi
cient to form a belief as to the allegations contained in para
graph four (4) of the complaint, and therefore, deny each
and every allegation contained in said paragraph four (4).

5. Defendants deny each and every allegation con
tained in paragraph five (5) of the complaint and specifi
cally deny that this action is properly brought by the plain
tiff on behalf of any other members of his alleged class.

6. Answering the allegations of paragraph six (6),
defendants deny that the persons designated in said para
graph as election managers of primary elections in Ward
9 Precinct were election managers of primary elections, and
allege in regard thereto that Clay Rice and the other de
fendants so designated were managers of the primary in
Ward 9 Precinct, Richland County, S. C .; deny that the
primary purposes of the Democratic Party of South Caro
lina are to conduct primary elections and to prepare offi

cial ballots containing the names of Democratic nominees
for use in general elections. Defendants admit that the de
fendant, John I. Rice, as Chairman, and the other defend
ants so designated in said paragraph, are members of the
Richland County Democratic Executive Committee, which
committee represents the local county unit of the Demo
cratic Party of South Carolina, but deny each and every
other allegation contained in said paragraph six (6) of the
complaint not herein admitted.

7. Defendants deny each and every allegation con
tained in paragraph seven (7) of the complaint, except that
on August 13, 1946, there was held in the State of South
Carolina and in Richland County of said State a primary
for nomination of Democratic Candidates for the House of
Representatives of the United States and various state of
ficers; that plaintiff presented himself on the 13th day of
August, 1946, to the regular polling place of Ward 9 Pre
cinct in Richland County during the regular hours that the
polling place was open and requested ballots and to be per
mitted to vote in said primary; that defendant managers
refused to permit plaintiff to vote in said primary because
he was not qualified according to the rules of the Party and
was not a White Democrat and not duly enrolled.

8. Answering the allegations of paragraph eight (8),
defendants allege that the Constitution of the United States
secures to qualified voters within the State of South Car
olina the right to cast their ballots only at the general elec
tions for representatives and senators in the United States
Congress and not the right to cast their ballots in the pri
mary conducted by the Democratic Party on August 13,
1946, but deny that Exhibit A correctly sets forth a copy of
the constitutional provisions referred to.

9. Answering paragraph nine (9), defendants deny
each and every allegation contained in paragraph nine (9)
of the complaint.

10. Defendants deny each and every allegation con
tained in paragraph ten (10) of the complaint.

14 R ice et al., A ppellants, v. E lmore, A ppellee

A p p e n d i x 15

11. Answering paragraph eleven (11), defendants ad
mit that from time to time there were statutes in South Car
olina regulating certain primaries in the State of South
Carolina, but crave reference to the original statutes for
their proper interpretation and deny the interpretation
placed thereon by the plaintiff. Defendants deny each and
every other allegation contained in paragraph eleven (11)
of the complaint.

12. Answering paragraph twelve (12), defendants de
ny the interpretation placed on the case of Smith v. All-
wright, as applied to the facts in the case now before the
Court; and further deny that the purpose of such legislative
session can be deduced from the language of the Governor’s
message therein referred to, or was as alleged in said para
graph, and in this connection defendants allege that it was
perfectly proper and permissible to take up any matter be
fore the special session of the said Legislature, as is shown
by the proclamation calling such session and by the laws
or the Constitution of South Carolina. Defendants deny
that Exhibit C is a correct copy.

13. Defendants admit the allegations contained in
paragraph thirteen (13) but crave reference to the Acts
for their proper interpretation and allege in regard there
to that the only provision in the Constitution of the State
of South Carolina, 1895, to-wit: Article 2, Section 10, men
tioning primaries was effectively repealed, the Act ratify
ing the amendment and repealing Article 2, section 10, hav
ing been approved February 14, 1945. (S. C. Statutes, 1945,
No. 11).

14. Defendants deny each and every allegation con
tained in paragraph fourteen (14) of the complaint and
deny that Exhibit D correctly sets forth a comparative table
showing the pertinent repealed statutes and the rules of
the Democratic Party in effect in 1946. Further answering,
the defendants particularly deny that the primaries in 1944
and 1946 have been conducted in essentially the same man
ner as previous to the repeal of the Acts relating to the
primaries; and in regard thereto, defendants specifically

16 R ic e et al, A p p e l l a n t s , v. E l m o r e , A p p e l l e e

allege that the Democratic primary since the adoption of
the above mentioned repealing Acts has been conducted in
a basically and fundamentally different manner in that it
has been conducted as a private voluntary association of
individuals, mutually acceptable to each other, not created
or regulated by virtue of any statute or law, but solely by
the rules of said voluntary association.

15. Defendants deny each and every allegation con
tained in paragraph fifteen (15) and allege, on the con
trary, that the way is left open for any and all political par
ties to compete in and win the election of representatives
and senators in Congress.

16. Defendants deny each and every allegation con
tained in paragraph sixteen (16) and allege, on the con
trary, that the plaintiff and others in like situation have
full and complete liberty to organize their own nominating
primary and to vote for such nominees in the general elec
tion.

17. Defendants deny each and every allegation con
tained in paragraph seventeen (17) and particularly deny
that since April, 1944 the Democratic Party has performed
in any sense the same functions it may have performed
previous to such time.

18. Answering paragraph eighteen (18), defendants
admit that there is no statutory provision in South Carolina
requiring any state officials to prepare ballots for use in the
general election, but deny each and every other allegation
contained in paragraph eighteen (18) and allege, on the
contrary, that at many general elections in the State of
South Carolina before and since 1876 political parties,
other than the Democratic, have prepared ballots for use
in the general election; that on August 13, 1946, as well as
at the present time, any political party or individual citi
zen had full liberty of preparing ballots for the general
election.

19. Defendants deny each and every allegation con
tained in paragraph nineteen (19) and allege in regard

A p p e n d i x 17

thereto that the plaintiff and others in like situation are at
full liberty to organize a political party and make their
own choice of candidates for the general election and, if
otherwise qualified under the South Carolina Constitution,
to vote for such candidates in such general election.

20. Answering paragraph twenty (20), the defendants
deny that there is any actual justiciable controversy be
tween the plaintiff and defendants cognizable by this Hon
orable Court for jurisdictional purposes.

21. Answering paragraph twenty-one (21), defendants
expressly deny the same, and allege, on the contrary, that
the claim of $5,000.00 is purely pretensive and fictitious and
so stated merely for the pretensive purpose of giving this
Honorable Court jurisdiction, but deny that such unsup
ported and undetailed claim is sufficient to furnish the
amount required to give this Honorable Court jurisdiction.

22. Answering paragraph twenty-two, defendants deny
the same; and in this connection the defendants deny that
the plaintiff has suffered or will suffer any actual damages,
or that the plaintiff is entitled to any declaration of rights
or an injunction.

23. That a true and correct copy of the Rules of the
Democratic Party of South Carolina, adopted by the Demo
cratic State Convention May 15, 1946 (corrected June 6,
1946) is attached to this Answer as Exhibit A.

18 R ic e et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

WHEREFORE, the defendants pray that the com
plaint be dismissed and for the costs of this action.
April 10,1947.
Address :
912-13 Liberty Life Building
Columbia, South Carolina.

/ S / CHARLES B. ELLIOTT
/ S / IRVINE F. BELSER
/ S / P. H. McEACHIN
/ S / J. PERRIN ANDERSON
/ S / W. BRANTLEY HARVEY
/ S / EDGAR A. BROWN
/S / Wm. P. BASKIN
A TRUE COPY. ATTEST
ESNEST L. ALLEN

Clerk, U. S. District Court,
East. Dist. So. Carolina

FILED APR 11 1947 ERNEST L ALLEN C. D. C. U.
S. E. D. S. C.

Civil Action No. 1702

ORDER

In the above entitled cause defendants filed a motion
to make the complaint more definite and certain by sep
arately stating the alleged causes of action arising under
the various statutes and subdivisions set forth in the com
plaint.

The complaint sets forth various statutes under which
it is claimed that the plaintiff is entitled to a declaratory
judgment and injunction by reason of his having been de
prived of rights as a citizen granted to him under various
articles of the constitution of the United States and stat
utes implementing the same. It would seem to be an act of
futility to redraft the complaint setting forth all the al
leged deprivations in separate causes of action and re
peating the same under each article of the constitution or
statute cited. The complaint is quite full and clear as to
the claim of the plaintiff and the defendants are certainly

A p p e n d i x 19

full advised of his claims and the basis of same. Accord
ingly, the motion to make more definite and certain (con
taining four separate paragraphs) is overruled and denied.

A further motion is made by the defendants to strike
from the complaint various allegations which are alleged
to be irrelevant, redundant, and argumentative, or plead
ing matters of law. This motion is subdivided in eight sep
arate parts. I am of the opinion that all of these various al
legations are pertinent to the issues submitted and aid in
the presentation of the precise points to be passed upon and
of such a nature as to be readily admitted or denied in an
answer. Accordingly, the motion as to all eight of its parts
is overruled and denied. Accordingly, it is

ORDERED that the motion to make more definite and
certain and also the motion to strike certain parts of the
complaint which were filed in this court on April 11, 1947,
be and the same are hereby refused.

J. W AITES WARING
United States District Judge.

A TRUE COPY. ATTEST.
ERNEST L. ALLEN

Clerk of U. S. District Court
East. Dist. So. Carolina

Columbia, S. C.,
May 15, 1947.

FILED MAY 15 1947 ERNEST L. ALLEN C. D C U
S. E. D. S. C.

Civil Action No. 1702

The court opened at Columbia, S. C., on June 3, 1947,
at 10:20 a. m. Hon J. Waties Waring Presiding

PRESENT
Ernest L. Allen, Clerk Norris M. Thomas, U. S. Marshal

APPEARANCES: Harold R. Boulware, Esq.; Robert

20 R ic e et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

L. Carter, Esq.; Thurgood Marshall, Esq.; (Marshall was
admitted to practice for the purpose of this trial)

For Plaintiff
C. B. Elliott, Esq.; Irvine P. Belser, Esq.; J. Perrin

Anderson, Esq.; W. Brantley Harvey, Esq.; Edgar A,
Brown, Esq.; Christie Benet, Esq.; William P. Baskin,
Esq.; Yancey A. McLeod; For Defendants

Plaintiff’s counsel requested the Court that he be al
lowed to withdraw Exhibit D. in the original complaint and
substitute Appendix A to plaintiff’s complaint. He then of
fered in evidence Appendix A and the Court announced that
the amendment would be allowed with the understanding
that all of the excerpts in the right hand column are taken
from the 1942 Code of the State of South Carolina. Mr.
Benet, of counsel for defendant, requested that it be un
derstood that defendants have a right to have an amend
ment to their answer to cover any mistakes that might be
included therein. Plaintiff’s counsel then requested permis
sion to withdraw Exhibit A from the complaint and have it
submitted as a part of the stipulation to be filed and de
fendants’ counsel interposed no objection to the same, pro
vided they be permitted to check said exhibits for any er
rors therein; which permission was granted by the court.

Plaintiff’s counsel then offered Appendix B through
I as a part of the complaint and requested permission to
withdraw Appendix E for the purpose of having an extra
copy of same made, which permission was granted by the
Court.

Mr. Benet, of counsel for the defendant, called the at
tention of the Court to the fact that a motion for continu
ance had heretofore been filed in Charleston, and made re
turnable on Monday, June 2. He further stated that in view
of the fact that a stipulation had been entered into in the
meantime, counsel would not press motion for a continu
ance and would cover the other grounds stated in the mo
tion in their legal argument. He then filed with the Court
Appendix A, as a part of the answer, which appendix was
allowed by the Court.

A p p e n d i x 21

The Court then directed the filing of a stipulation in
asmuch as preliminary motions had been disposed of and
when the stipulation was read Mr. Benet objected to stipu
lation 16, as not being pertinent or responsive to the al
legations of the complaint. He also objected to paragraph
20 of the stipulation as not being pertinent to the action.
Both objections were overruled by the Court.

Plaintiff’s counsel then objected to paragraph 24 of the
stipulation as being immaterial and having no bearing on
the case, which objection was overruled. Counsel for both
the plaintiff and defendant then advised the Court that in
view of the stipulation no oral testimony would be offered.
Whereupon memorandum briefs were filed with the Court
by each side and leave was granted to counsel for filing
briefs in reply, upon the condition that proposed Findings
of Fact and Conclusions of Law would be submitted to the
Court.

The Court then discussed with counsel the matter of
time for arguments and it was agreed that each side be al
lowed two hours for arguments.

Oral arguments were then entered into with Harold R.
Boulware, Esq., from 11:05 a. m. to 11:18 a. m., followed
by Thurgood Marshall, Esq., for the plaintiff, from 11:18
a. m. to 12:10 p. m., at which point a recess was taken un
til 12:25 p. m.

At 12:25 p. m. Irvine F. Belser, Esq. opened arguments
for the defendants and continued until 1 :30 p. m., at which
time a recess was taken until 3 :00 p. m. Upon re-convening
of the Court at 3 :10 p. m., following the recess, Mr. Belser
continued until 3 :45 p. m. and was followed by Charles B.
Elliott, Esq. until 4 :07 p. m.

The court adjourned at 4:10 p. m. until 10:00 a. m.,
June 4,1947.

ERNEST L. ALLEN, Clerk
A TRUE COPY. ATTEST.
EKNEST L. ALLEN

Clerk of U. S. District Court
East. Dist. So. Carolina

22 Rice et al., A ppellants, v. Elmore, A ppellee

DEFENDANTS’ APPENDIX I
RULES OF THE DEMOCRATIC

PARTY OF SOUTH
CAROLINA

In Effect since May 15, 1946
QUALIFICATIONS FOR CLUB

MEMBERSHIP
6. The qualifications for mem

bership in any club of the party
in this State, and for voting at a
primary shall be as follows, viz.:
The applicant for membership, or
voter, shall be 18 years of age, or
shall become so before the succeed
ing general election and be a white
Democrat. He shall be a citizen
of the United States and of this
State, and shall be able to read or
write, and interpret the Constitu
tion of this State. No person shall
belong to any club or vote in any
primary unless he has resided in
the State two years and in the
county six months prior to the suc
ceeding general election and in the
club district 60 days prior to the
first primary following his offer to
enroll: Provided, T h a t public
school teachers and ministers of
the gospel in charge of a regular
organized church shall be exempt
from the provisions of this section
as to residence, if otherwise qual
ified.

CIVIL CODE OF SOUTH
CAROLINA

In Effect On April 13, 1944
2355. Q U A L I F I C A

TIONS FOR PARTY MEMBER
SHIP AND VOTE— Exceptions as
to teachers, ministers and federal
employees.—

The qualifications for member
ship of such party, organization or
association in this State, and for
voting at the primary, shall be as
follows, viz.: the applicant for
membership, or voter, shall be 21
years of age, or shall become so
before the succeeding general elec
tion. He shall be a citizen of the
United States and of this State.
No person shall belong to any club
or vote in any primary unless he
has resided in the State two years
and in the county six months prior
to the succeeding general election
and in the club district 60 days
prior to the first primary follow
ing his offer to enroll: provided
that public school teachers and
ministers of the gospel in charge
of a regular organized church and
federal employees from this State
shall be exempt from the provi
sions of this section as to residence
if otherwise qualified: provided,
that the state convention of any
political party, organization or as
sociation in this State shall have
the power and authority to add to
or to limit the qualifications for
membership in such party, organi
zation or association, and for vot
ing at the primary elections there
of, if such qualifications so added
or limited do not conflict with the
provisions herein as to the age and
residence of members and voters.

A p p e n d i x 23

r u l e s o f t h e d e m o c r a t ic
PARTY OF SOUTH

CAROLINA
In effect since May 15, 1946

ABSENTEE ENROLLMENT
10 (a). That any person, who

because of absence from the State
or illness, is unable to go to the
place where the enrollment book is
kept for the purpose of entering
his or her name thereon shall be
permitted to send to the club sec
retary or the county secretary an
application in writing signed by the
person, forms for which will be
printed asking that his or her
name be placed upon the enroll
ment book; and that in cases
where such application or applica
tions are in order the club secre
tary or county secretary shall
cause the enrollment of such per
sons, and shall attest the enroll
ment by his signature.

RULES OF THE DEMOCRATIC
PARTY OF SOUTH

CAROLINA
In effect since May 15, 1946

OATH FOR ALL CANDIDATES
26 (a) Following is the form

of the oath: “As candidate for the
office of ................................ in the
Democratic primary, to be held on
the second Tuesday in August,
194.., I hereby pledge myself to
abide the results of such primary
and support the nominees of this
primary, and I declare that I am
a Democrat and that I am not nor
will I become the candidate of any
faction, either privately or pub
licly suggested, other than the
regular Democratic nomination.

CIVIL CODE OF SOUTH
CAROLINA

In effect on April 13, 1944

NONE

CIVIL CODE OF SOUTH
CAROLINA

In effect on April 13, 1944

NONE

24 R ic e et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

ADDITIONAL OATH FOR CON
GRESSIONAL CANDIDATE
26 (b) I f the candidate is

running for the United States
Senate, or for the United States
House of Representatives, this ad
ditional pledge shall be required:
“ I will support the political prin
ciples and policies o f the Demo
cratic Party of South Carolina
during the term of office for which
I may be elected.” This the . . . .
day of ................................... 194...

PROVISION FOR ADDITIONAL
CANDIDATES IN CASE OF
VACANCIES
26 (c). PROVIDED, That in

case where there be not more than
two candidates for any one office
after the time for filing such
pledges, and before the close of
the primary, should any candidate
die or become physically incapaci- NONE
tated or withdrawn, the State or
County Committee may in its dis
cretion (as the case may be) af
ford opportunity for the entry of
other candidates for the office in
volved; and should such vacancy
occur more than 10 days before the
first primary, then said committee
may make provision for other ad
ditional candidates entering the
race; but if said vacancy occur
after said 10 days, then the ballot
ing for said office shall be at such
time as may be fixed by said com
mittee and that they shall provide
for the filing of pledges.

A p p e n d i x 2 5

RULES OF THE DEMOCRATIC
PARTY OF SOUTH

CAROLINA
In Effect Since May 15, 1946

OATH TO BE TAKEN BY
VOTERS
32. The managers at each box

at the primary shall require every
voter to pledge himself to abide
the results of the primary, and to
support the nominees of the party,
and to take the following oath and
pledge, viz: “ I do solemnly swear
that I am a resident of this club
district and am duly qualified to
vote at this primary according to
the rules of the Democratic party,
and that I have not voted before
at this election, and pledge myself
to support the nominees of this pri
mary.

RULES OF THE DEMOCRATIC
PARTY OF SOUTH

CAROLINA
In Effect Since May 15, 1946

UNOPPOSED CANDIDATES
OMITTED FROM BALLOT
33 (Paragraph 2) Provided,

however, that county committees
and the state committee are di
rected to declare any candidates
without opposition nominees of the
party without having placed the
names of such unopposed candi
dates on the ballots.
ABSENTEE VOTING

47 (i) The Secretary of the
County Committee shall file with
the County Chairman, not later
than Friday noon next preceeding
the primary, a complete list of all
absentee ballots furnished appli
cants for absentee ballots, and said
list shall be kept by the County
Chairman and shall be available
for inspection.

CIVIL CODE OF SOUTH
CAROLINA

In Effect On April 13, 1944
OATH FOR VOTERS

2365 (5) The managers at
each box at the primary shall re
quire every voter to take the fol
lowing oath and pledge, viz: “ I do
solemnly swear that I am a resi
dent of this club district and am
duly qualified to vote at this elec
ts011 ............................... and that I
have not voted before at this elec
tion.”

CIVIL CODE OF SOUTH
CAROLINA

In Effect On April 13, 1944

NONE

26 R ic e et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

RULES OF THE DEMOCRATIC
PARTY OF SOUTH

CAROLINA
In effect since May 15, 1946

PROTESTS AND CONTESTS
36. The protests and contests

for county officers and members of
the General Assembly shall be filed
within two days after the day of
the declaration by the County Com
mittee of the result of the primary
with the chairman of the County
Committee. Copies thereof shall
also be served upon opposing candi
date or candidates, and said Coun
ty Committee shall hear and de
termine the same on the first Tues
day after each primary. The State
Committee shall meet on the sec
ond Tuesday after each primary or
at such other time as may be desig
nated by the chairman, to hear and
decide protests and contests as to
United States Senator, State offi
cers, Representatives and Solici
tors: PROVIDED, That no mem
ber of the County Committee shall
act in any contest wherein his
candidacy is acted on. The protests
and contests for all officers except
county officers and members of the
General Assembly, shall be filed
within five days after the election
with the chairman of the State
Committee. Copies thereof shall
also be served upon opposing can
didate or candidates.

RULES OF THE DEMOCRATIC
PARTY OF SOUTH

CAROLINA
In effect since May 15, 1946

WATCHERS AT POLLS
49. The right is hereby given

to any candidate to name and ap
point a watcher for any poll that
he may desire, the right to be

CIVIL CODE OF SOUTH
CAROLINA

In effect on April 13, 1944
2366. TABULATION OF RE

TURNS — RESULT OF PRI.
MARY— STATE COMMITTEE
PROTESTS AND CONTESTS -
APPEALS — MAJORITY VOTE.
— The protests and contests for
county officers and members of the
General Assembly shall be filed
within two days after the day of
the declaration by the county com
mittee of the result o f the election
with the chairman of the county
committee, and said county com
mittee shall hear and determine
the same at its first meeting there
after, which shall be held within
five days after said protest or con
test is filed. The state committee
shall meet on the Tuesday after
each primary or at such other time
as may be designated by the chair
man, to hear and decide protests
and contests as to United States
Senators, state officers, Congress
men and solicitors: PROVIDED,
that no member of either the coun
ty committee or state committee
shall act in any contest wherein
his candidacy is acted on. The pro
tests and contests for all officers,
except county officers and members
of the General Assembly, shall be
filed within five days after the elec
tion with the Chairman of the state
committee.

CIVIL CODE OF SOUTH
CAROLINA

In effect on April 13, 1944
2395. ASSISTANCE TO IL

LITERATE OR PHYSICALLY
DISABLED VOTER.—No person
shall be allowed within the guard
rail except as hereinafter provided.
If a voter cannot read or write, or

A p p e n d i x 2 7

granted by the County Committee,
and upon its refusal to do so the
entire matter shall be reviewed by
the State Committee, and the ac
tion taken by the State Committee
shall be final.

RULES OP THE DEMOCRATIC
PARTY OF SOUTH

CAROLINA
In effect since May 15, 1946

MUNICIPAL DEMOCRATIC
CLUBS
44. Upon a petition of a repre

sentative number of white Demo
crats in any incorporated town or
city in this State, being filed with
the county chairman, there shall
be organized a municipal Demo
cratic club in such city or town.
The Democratic club so organized
shall hold a primary to nominate
candidates for municipal offices.
Such primary shall be conducted
under such rules and regulations as

is physically disable, and by rea
son thereof did not sign the enroll
ment book, he may appeal to the
managers for assistance, and the
chairman o f the managers may ap
point two o f the watchers repre
senting different factions to assist
him in preparing his ballot: PRO
VIDED, after the voter’s ballot
has been prepared the watchers so
appointed shall immediately go be
hind the guard rail.

2404. W A T C H E R S IN
COUNTIES WITH CITY OVER
20,000 — REGISTRATION IN
CITIES OVER 20,000. — Candi
dates in all counties in which there
is a city containing twenty thou
sand inhabitants or more shall
have the right to appoint a watcher
at each polling place to look after
the interest of such candidates.
And in all cities of twenty thou
sand inhabitants or more there
shall be a party registration of
voters under regulations to be pre
scribed by the rules of the respec
tive party.

CIVIL CODE OF SOUTH
CAROLINA

In effect on April 13, 1944.
PRIMARY ELECTION IN CIT

IES OF 40,000 OR MORE
Section 2383. CLUBS AND

CLUB DISTRICTS.
Section 2400. PENALTIES

VIOLATE — OATHS ADMINIS
TERED.

Section 2400-1. T I M E —
BOARD OF COMMISSIONERS
OF ELECTION AND BOARD OF
MANAGERS OF ELECTION
CONDUCT — DUTIES OF PO
LITICAL PARTIES — CHAL
LENGE VOTERS — CANDI
DATES — BALLOTS — VOTES

28 R ic e et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

shall be prescribed by such munic
ipal Democratic clubs:

Provided, however, the county
chairman shall issue the call for
such municipal Democratic club
and act as chairman of such mu
nicipal Democratic meeting until
the group organize and elect a mu
nicipal chairman and, provided,
further, that such municipal Dem
ocratic club shall conform to the
general enrollment provisions,
qualifications for membership, gen
eral voting provisions, absentee en
rollments and voting provisions,
closing of club rolls, closing of en
rollment books and opening and
closing of polls as provided in
these rules, but may make and
provide such further rules, etc.,
for the conduct of its Democratic
primaries as it may deem advis
able.

RECEIVE ELECT — SECOND
PRIMARY — DUTIES OF SU
PERVISORS OF REGISTRA
TION — TIME REGISTER.—

Section 2400-2. GIVE AGE
AND ADDRESS WHEN EN
ROLLING — RESIDE WITHIN
CITY ENROLL OR VOTE.

Section 2400-3. RULES AND
REGULATIONS APPLICABLE.

Section 2400-4. APPLICA
TIO N -G EN ERAL ELECTION.

Section 2400-5. TIME—COM
MISSIONERS OF ELECTION
CONDUCT—DUTY OF POLITI-
CAL PARTIES — VOTERS-
CHALLENGE VOTES— CANDI
DATES — SECOND PRIMARY.
MARY.

Section 2400-6. BOOKS OF
REGISTRATION.

Section 2400-7. ELECTION
COMMISSIONERS — APPOINT
M E N T-TE R M — CITY EXECU
TIVE COMMITTEE.

Section 2400-8. PARTY PRI
MARY TO NOMINATE MAYOR
OR COUNCILMEN — TIME -
VOTERS — OATH TO VOTE —
REQUIREMENTS OF CANDI
DATES— BALLOTS — NUMBER
OF VOTES TO ELECT — SEC
OND PRIMARY.

Section 2400-9. ENROLL
MENT BOOKS — WHEN OPEN
— WHO ELIGIBLE TO ENROLL
— ISSUE CERTIFICATES TO
THOSE ENROLLED — PLACE
OF BOOKS — INSPECTION OF
BOOKS — WHAT NAMES MAY
BE PURGED — REQUIRE
MENTS TO VOTE.

Section 2400-11. ENROLL
MENT.

Section 2400-12. ENROLL
MENT BOOKS

Section 2400-13. ENROLL
MENT OATH

Section 2400-14. PENALTIES

A p p e n d i x 29

Section 2400-15. OFFICIAL
CLUB ROLL

Section 2400-16. MANAGERS
—DUTIES AS TO ENROLL
MENT BOOKS AND BOXES.

Section 2400-17. BOOTHS
Section 2400-18. TABLE FOR

MANAGERS
Section 2400-19. BALLOTS —

CONTENTS — NUMBERS —
AMOUNT.

Section 2400-20. BALLOTS—
DUTIES OF MANAGERS AS TO
VOTING— SECOND.

Section 2400-21. PERSONS
ASSIST IN VOTING.

Section 2400-22. PERSONS
ADMIT TO POLLING PLACES
AND CANVASS OF VOTE.

Section 2400-23. INTERFER
ENCE WITH MANAGERS —
OBSTRUCTION OF VOTING.

Section 2400-24. RETURNS.
Section 2400-25. P A R T Y

RULES.
Section 2400-26. PENALTIES

— OATH.
Section 2400-27. BOARD OF

COMMISSIONERS OF ELEC
TION — APPOINTMENT —
TERM — REMOVAL — VA
CANCY — COMPENSATION —
Power — CITY EXECUTIVE
COMMITTEES.

Section 2400-28. PARTY PRI
MARY NOMINATE CANDI
DATES FOR MAYOR OR COUN
CILMAN — HOW CONDUCT —
TIME — PERSONS VOTE —
VOTER’S OATH — CANDI
DATES — BALLOTS — VOTES
NECESSARY ELECT — SEC
OND PRIMARY.

Section 2400-29. BOOKS OR
ENROLLMENT — E N R O L L
MENT OF PERSONS — COR
RECT — CERTIFY — USE —
PERSONS VOTE — LOST.

30 R ic e et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

RULES OF THE DEMOCRATIC
PARTY OF SOUTH

CAROLINA
In Effect Since May 15, 1946

PENALTIES FOR VIOLATIONS
50. Each and every person,

whether candidate who enters the
primary or person who votes there
in shall by said act or acts submit
himself or herself to the rules of
the party, and any such person
who (a) has given or promised to
give any sum of money or other
valuable consideration to any other

Section 2400-30. QUALIFICA
TIONS FOR PARTY MEMBER.
SHIP — TAX RECEIPT NOT
NECESSARY ENROLL VOTE
IN PRIMARY.

Section 2400-31. ISSUE AB
SENTEE BALLOTS TO PER
SONS ABSENT OR UNABLE
VOTE IN PERSON ON AC
COUNT OF SICKNESS IN MU
NICIPAL PRIMARIES, CITIES
OF 6,000 TO 6,500 — AUTHOR
IZED.

Section 2400-32. APPLICA
TION FOR BALLOT.

Section 2400-33. DELIVERY
OF BALLOT AND INSTRUC
TIONS.

Section 2400-34. FORM OF
COUPON.

Section 2400-35. MARKING
AND MAILING OF BALLOT.

Section 2400-36. RECEIPT
AND CUSTODY OF BALLOT
FROM VOTER.

Section 2400-37. DELIVERY
OF BALLOTS TO MANAGERS.

Section 2400-38. COUNTING
OF BALLOTS.

Section 2400-39. CONSTRUC
TION — DECISIONS OF EN
ROLLMENT COMMITTEE OR
CLUB SECRETARY AS TO PER
SONS VOTE BY MAIL FINAL.

CIVIL CODE OF SOUTH
CAROLINA

In Effect On April 13, 1944
2400 PENALTIES VIOLATE -

OATHS ADMINISTERED.
Any person violating the pro

visions o f this article other than
swearing falsely, shall be guilty
of a misdemeanor and fined not
over five hundred ($500.00) dol
lars, or imprisoned not over six
(6) months, or both, at the discre
tion of the court. Any person
swearing falsely in any of the

A p p e n d i x 31

person in order to induce such
other person to vote for or against
any candidate in any primary; or
(b) has received of another any
sum of money or other valuable
consideration for voting for or
against any candidate in any pri
mary; or (c) has voted more than
once in the same primary; or; (d)
has by threats or other form of
intimidation procured or caused
any other person to vote for or
against any candidate in any pri
mary; or (e) has sworn falsely at
any primary in taking the pre
scribed oath, or has impersonated
any other person and taken the
oath in his or her name, in order
to vote in such primary; or (f)
has sold, bartered, given away or
treated any voter to any malt or
intoxicating liquors for the pur
pose of inducing such voter to vote
for or against any candidate in
any primary, or (g) who shall
carry liquor within one hundred
yards of any voting place during
the hours of the primary for the
purpose of selling same or influenc
ing voters; or (h) who shall will
fully receive any bribe, money or
liquor as a consideration for the
casting of any vote or votes; or
(i) may be called up by the county
executive committee of his or her
county, and if the charges are
proven to the satisfaction of a
three-fourths majority of that
committee may be expelled or de
barred from participating in Dem
ocratic primaries for such period
as may be determined by a three-
fourths majority of said commit
tee: provided, however, that no
person shall be expelled or de
barred from participating in Dem
ocratic primaries except as fol
lows: A written complaint signed

matters pertaining to primary elec
tions shall be guilty of perjury,
and punished as now provided by
law for perjury. The officers and
managers of all clubs, and mem
bers of the state and county execu
tive committees of political parties,
organizations or associations, are
hereby authorized to administer
oaths in all matters relating to
such primary elections, and to
swear falsely before any of them,
touching such matters shall be per
jury. The said managers shall be
sworn to conduct the election fairly
and legally, and each voter shall
be sworn as to his right to vote and
that he has not voted before at
said election.

PENALTIES FOR VIOLATIONS
— OATHS
2370 Any person violating the

provisince of this article other
than swearing falsely shall be
guilty of a misdemeanor, and fined
not over five hundred ($500) dol
lars; or imprisoned not over six
(6) months, or both, at the discre
tion of the court. Any person
swearing falsely in any of the mat
ters pertaining to the primary elec
tions shall be guilty of perjury and
punished as now provided by law
for perjury. The officers and man
agers of all clubs, and members of
the state and county executive com
mittee of political parties, organi
zations or associations, are hereby
authorized to administer oaths in
all matters relating to such pri
mary elections, and to swear false
ly before any of them touching
such matters shall be perjury. The
said managers shall be sworn to
conduct the election fairly and le
gally, and each voter shall be
sworn as to his right to vote and

32 R ic e et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

by the person preferring charges that he has not voted before at
shall be filed with the county com- said election,
mittee, charging the person with
violating any one or more of the
foregoing sections (a) through (h)
of this rule and thereafter said
county executive committee shall
fix a date for a hearing on said
complaint and shall give the ac
cused offenders at least ten (10)
days written notice o f the place
and time of such hearing, together
with a copy of the charge as filed.
At such hearing the accused of
fender shall have the right to be
heard in person, or by counsel, and
in the event the charges are proven
to the satisfaction of a three-
fourths majority of that commit
tee such offender may be expelled
or debarred from participating in
the Democratic primaries for such
period of time as may be deter
mined by a three-fourths majority
of said committee: Provided, how
ever, That any person so expelled
or debarred may appeal to the
State Executive Committee, whose
decision shall be final.

RULES OF THE DEMOCRATIC CIVIL CODE OF SOUTH

In Effect Since May 15, 1946
SECRETARIES AND

ABSENTEE BALLOTS
51. No person shall serve as

secretary of the county committee
or secretary of the State Commit
tee in any primary where he is an NONE
opposed candidate and the secre
tary of the county committee shall
file with the county chairman, four
days before the primary a list of
voters who have been sent absen
tee ballots.

PARTY OF SOUTH
CAROLINA

CAROLINA
In Effect On April 13, 1944

A p p e n d i x 33

r u l e s o f t h e d e m o c r a t ic
PARTY OF SOUTH

CAROLINA
In Effect Since May 15, 1946

VOTING MACHINES
53. Any County Democratic

executive Committee may, in its
discretion, authorize the use of
voting’ machines in any and all
polling precincts in that county,
which voting machines shall ade
quately preserve the secrecy of bal
lots and shall be sufficient in num
ber to adequately care for the
voters.

CIVIL CODE OF SOUTH
CAROLINA

In Effect On April 13, 1944

NONE

Civil Action No. 1702

STIPULATION

For the purpose of this action only and for no other
purpose whatsoever and without waiving hut expressly re
serving the rights of the defendants under their motion
filed in this cause to strike certain portions of the Com
plaint as irrelevant, redundant, argumentative or as plead
ing matters of law, and without waiving but expressly re
serving the rights of the Plaintiff and the Defendants to
object to any of the facts herein stipulated on the ground
of irrelevancy or redundancy, the attorneys for the Plain
tiff and the attorneys for the Defendants hereby stipulate
as follows:

1. All parties to this action, both Plaintiff and De
fendants, are citizens of the United States and of the State
of South Carolina and are resident and domiciled in said
State.

2. The Plaintiff at all times material to this action was
and is a duly and legally cpialified elector under the Con
stitution and laws of the State of South Carolina, and sub
ject to none of the disqualifications provided for voting un
der the Constitution and laws of the State of South Caro
lina.

34 R ic k et al., A p p e l l a n t s , v. E l m o r e , A p p e l l e e

3. Defendants, Clay Rice, Mrs. A. B. Parker, Leone
Bennett, Mrs. Sam Carter, Jr., Charles Stork, Mrs. H. E.
Snipes, Mrs. Earl Lightsey and Mrs. E. L. Koon, at all
times material to this action, are and were managers of the
Democratic Primary in Ward Nine Precinct, Richland
County, South Carolina. Defendants, John I. Rice as Chair
man, and Defendants, Lane L. Bonner, Anne Agnew,
Charles S. Henry, R. Cliff Harper, Fred T. Harrell, J. W.
Land, Jr., J. B. Heine, B. J. Engle, C. D. Wilson, J. L.
Brazell, Frank L. Taylor, A. S. Coleman, B. F. Turner,
J. L. Cotton, George N. Nungezer, C. E. Newman, H. F.
McLendon, F. H. Livingston, Dell Booth, J. 0. Riley, J. W.
Corman, D. T. Cloaninger, J. Y. Reese, C. P. Wingard,
S. J. Kinsley, James H. Hammond, E. V. Neeley, D. F.
Martin, Thomas E. Grigsby, F. N. Franklin, E. E. Dority,
J. W. Ford, J. L. Sites, Ware Carnes, Mrs. F. H. Clark,
Harold Douglas, J. W. Shealy, W. H. Koon, W. T. J.
Lever, V. F. Fundeburk, W. F: Wheeler, W. J. Clark, A. B.
Langley, J. E. Belser, Jr., G. C. Keefe, Clarence Richards,
R. K. Gibson, D. M. Winters, J. F. Freeman, Kenneth R.
Kreps, Ollie Mefford are members of the Richland County
Democratic Executive Committee.

4. The Richland County Democratic Executive Com
mittee represents the local county unit of the Democratic
Party of South Carolina.

5. The primary purpose of the Democratic Party of
South Carolina is the promotion “ of good government of
our State” according to the ideas of the members of the
Party and in carrying out that purpose it conducts nom
inating primaries and thereafter prints its ballots for use
in the General Elections with the names of its nominees
thereon which ballots are distributed by party officials and
placed at the General Election precincts in South Caro
lina for use by any electors who choose to use such ballot
in voting in any such General Election in South Carolina.

6. The officials of the Democratic Party of South Caro
lina and the officials of the Republican Party of South
Carolina and the officials of other political parties of South
Carolina prior to the General Election in November, 1946,

A p p e n d i x 35

each prepared and printed separate ballots showing the
names of the nominees of their own party and distributed
such ballots to the General Election polling places in the
State of South Carolina for use, in the General Election
of November, 1946, by any elector who might wish to use
same in casting his or her vote in said General Election.
In addition, ballots were cast and counted in said General
Election for persons other than the nominees of any pol
itical party as will be seen from the Supplemental Report
of the Secretary of State of South Carolina attached hereto
which report is correct and may be referred to without
formal proof.

7. On the 13th day of August, 1946, there was held
by the Democratic Party of South Carolina in the State
of South Carolina and in Richland County of said state a
Primary for nomination of Democratic nominees for the
House of Representatives of the United States and various
state offices.

8. The Plaintiff and about ten other qualified negro
electors under the Constitution of the State of South Caro
lina presented themselves on the 13th day of August, 1946,
to the regular polling place of Ward Nine (9) Precinct in
Richland County, South Carolina, of the Democratic Party
of South Carolina, during the regular hours that the poll
ing place was open and requested ballots and requested
to be permitted to vote in said Democratic Nominating
Primary. The Defendants, Clay Rice, Mrs. A. B. Parker,
Leone Bennett, Mrs. Sam Carter, Jr., Charles Stork, Mrs!
H. E. Snipes, Mrs. Earl Lightsey and Mrs. E. L. Koon,
Primary Managers of said Ward Nine (9) Precinct re
fused to permit them to vote in said Democratic nominat
ing primary because they were not white Democrats and
were not duly enrolled. In so refusing them to vote in said
Democratic nominating primary such Primary Managers
were acting pursuant to the rules and instructions of the
Defendant, John I. Rice, acting as Chairman of the Rich
land County Democratic Executive Committee and of the
members of the Richland County Democratic Executive
Committee who were acting pursuant to the rules adopted

by the Democratic Party of South Carolina on May 15,
1946, which rule, among other things, limited membership
and voting in said primary to white Democrats.

9. During the past three General Elections there have
been various factions of so-called Democrats, viz., Regular
Democrats, Southern Democrats, Progressive Democrats
and there have been several factions of the so-called Repub
licans, viz., Regular Republicans and Tolbert Republicans,
all of whom have chosen their nominees and have printed
and furnished ballots for use by any elector in the General
Election in South Carolina with names of their nominees
thereon. Any political party or any person may write or
print and make available its or his own ballots for use in
the General Election and any person can vote for any per
son he chooses to vote for in any General Election whether
or not such person is the nominee of any political party.

10. A number of the Statewide Statutes formerly reg
ulating the primaries of all political parties in South Car
olina were repealed at the 1943 Session of the General As
sembly of South Carolina effective June 1, 1944, and on
April 20, 1944, the General Assembly of South Carolina,
after a session of less than a week, passed one hundred and
fifty acts repealing all existing statutes which contained
any reference directly or indirectly to primary elections
within the State, including an act calling for the repeal of
Section 10 of Article II of the Constitution of South Caro
lina 1895, the only Constitutional provision mentioning
primary elections, and set in motion the machinery to re
peal that provision. Subsequently, and on February 14,
1945, the Constitution of South Carolina was so amended
by Ratification of the General Assembly of South Carolina
of said Constitutional Amendment.

11. That the copy of Rules of the Democratic Party of
South Carolina dated May 15,1946 (corrected June 6,1946)
attached to the Answer of Defendants, are the correct rules
of the Democratic Party of South Carolina and have been
in effect since May 15, i946.

36 R ice et al., A ppellants, v. Elmore, A ppellee

A ppendix 37

12. Since May 15, 1946, among the qualifications for
club membership and voting in nominating primaries of
the Democratic Party of South Carolina are—“ The appli
cant for membership, or voter, shall be 18 years of age or
shall become so before the succeeding General Election and
be a White Democrat. He shall be a citizen of the United
States and of this State and shall be able to read or write,
and interpret the Constitution of this State ’ ’, the plaintiff
at all times material herein was and is over 18 years of age,
is a Negro, a citizen of the United States and of South
Carolina and is able to read, write and interpret the Con
stitution of South Carolina. The plaintiff was not qualified
for membership in the Democratic Party of South Caro
lina because he is not a White Democrat.

13. Neither the State of South Carolina, nor any of its
political subdivisions pays any part whatsoever of the ex
penses of the conduct of the Democratic Party of South
Carolina or of any other political party or of any party
primary.

14. Exhibit “ A ” attached hereto consists of certain
excerpts from the State Constitution of South Carolina
and such excerpts are agreed to be correct but do not con
tain all of the provisions of the State Constitution of South
Carolina and any party to this action may quote from any
provisions of the State Constitution of South Carolina.

15. Exhibit “ B ” , including tables one, two and three,
hereto attached are agreed to be accurate and correct.

16. Exhibit “ C” , attached to the plaintiff’s original
complaint is agreed to be accurate and correct.

17. In the Democratic primary of August, 1946, 290,223
votes were cast for the office of Governor. In the Democratic
primary held on September 3, 1946, 253,589 votes were
cast for that same office. In the general election of Novem
ber 12, 1946, there were 26,326 votes cast for the office of
Governor.

18. Although the statute law of South Carolina re
quires liquor stores to close on election days, the liquor

stores in South Carolina were not closed on August 13,
1946, nor on September 3, 1946, the days the nominating
primaries were held in South Carolina by the Democratic
Party of South Carolina.

19. In General Election years, during the past twenty
(20) years and up to and including 1946, the then existing
Democratic Party of South Carolina prepared ballots giv
ing only the names of its nominees for use in general elec
tions by any elector who might choose to use same. These
ballots were distributed by the then existing Democratic
Party of South Carolina to all of the polling places through
out the State of South Carolina in the subsecpient general
elections.

20. Since 1900 every Governor, Member of the Gen
eral Assembly, United States Representative and United
States Senator of the State of South Carolina elected by
the people of South Carolina in the general elections was
a nominee of the then existing Democratic party of South
Carolina.

21. During the past twenty-five years the Democratic
party of South Carolina has been the only political party
in South Carolina which has held state-wide primaries for
nomination of candidates for federal and state offices. It
is agreed that the term “ Democratic Party of South Caro
lina” used in Stipulation 21 means the Democratic Party
of South Carolina in existence at the respective times state
wide primaries were held.

22. The Democratic Party of South Carolina is not
chartered under any law.

23. The attached ballots are correct samples of ballots
available in Richland County, South Carolina, in the gen
eral elections of 1944 and 1946; number one being a South
ern Democratic Ballot for 1944; number two being a Re
publican Ballot for 1944; number three being a Regular
Democratic Ballot for 1944; number four being a Regular
Democratic Ballot for Congress for 1946; and number five
being a Republican Ballot for Congress for 1946.

38 R ice et a l., A ppellants, v . E lmore, A ppellee

A ppendix 39

24. The federal census shows that in many of the coun
ties of South Carolina the Negroes outnumber the whites.

25. The Democratic Party of South Carolina has been
since May 15, 1946, and still is, organized and set up and
conducts its nominating primaries in accordance with the
Rules of the Democratic Party of South Carolina adopted
May 15,1946 (corrected June 6, 1946).

The foregoing are all of the material facts in this
action and no testimony will be taken.

/ s / HAROLD BOULWARE,
/ s / THURGOOD MARSHALL,

Attorneys for Plaintiff.
/ s / CHRISTIE BENET,

• / s / IRVINE F. BELSER,
Attorneys for Defendants.

Columbia, S. C.,
June 3, 1947.

Civil Action No. 1702

The court opened at Columbia, S. C., on June 4, 1947,
at 10 a. m., Hon. J. Waties Waring, Presiding.

PRESENT
Ernest L. Allen, Clerk Norris M. Thomas, U. S.

Marshal
APPEARANCES: Same as June 3, 1947.
Upon the opening of the court Judge Waring requested

the filing of a stipulation or oral testimony relative to the
regulations of the Democratic Party in 1942 and 1944. Re
sponsive thereto, the rules of the Democratic Party of
South Carolina adopted May 20, 1942, were offered in evi
dence as the court’s Exhibit No. 1, and a stipulation was
filed as to the State Convention of May 15, 1946. Honor
able William P. Baskin, Chairman of the Democratic
Party of South Carolina was then called as a court wit
ness and was sworn over the objection of counsel for the
defendants.

40 R ice et al., A ppellants, v. Elmore, A ppellee

Upon conclusion of Mr. Baskin’s testimony, arguments
were resumed with Mr. Benet for the defendants from
11:55 a. m. to 12:41 p. m .; Thurgood Marshall, Esq. in re
ply from 12:42 p. m. to 1 :10 p. m.

At the conclusions of arguments the Court granted
leave to counsel to file additional briefs with the Clerk at
Charleston, on or before June 16, 1947, with the condition
that proposed Findings of Fact and Conclusions of Law
accompany these briefs.

The court adjourned at 1:12 p. m. until 10:00 a. m.
June 5, 1947.

ERNEST L. ALLEN, Clerk
A TRUE COPY, ATTEST,

ERNEST L. ALLEN,
Clerk of U. S. District Court
East. Dist. So. Carolina

TRANSCRIPT OF TESTIMONY

Civil Action No. 1702
Columbia, S. C., June 3! and 4,1947.

B efore:
HON. J. WATTES WARING, U. S. DISTRICT

JUDGE.
Appearances:

HAROLD R. BOULWARE, ESQ., of counsel,
THURGOOD MARSHALL, ESQ., of counsel, and
ROBERT L. CARTER, ESQ., of counsel, attorneys for

the Plaintiff.
C. B. ELLIOTT, ESQ., of counsel,
IRVINE F. BELSER, ESQ., of counsel,
J. PERRIN ANDERSON, ESQ., of counsel,
W. BRANTLEY HARVEY, ESQ., of counsel,
EDGAR A. BROWN, ESQ., of counsel,
CHRISTIE BENET, ESQ., of counsel,
W ILLIAM P. BASKIN, ESQ., of counsel, and
YANCEY A. McLEOD, ESQ., of counsel, attorneys for

the Defendants.

A ppendix 41

The Co u r t : Elmore versus Rice and others. I under
stand that a stipulation of counsel—counsel informed me
that they were in the process of filing a stipulation in lieu
of verbal testimony. Is that correct?

Mr. B o u lw a r e : That’s correct, sir.
The Co u r t : Well, it may be presented. I think it better

be read in open Court.
Mr. B o u l w w a r e : Sir, before we read the stipulation,

if the Court pleases, we have two pleadings we would like
to correct. At the same time I would like to present my
associate Mr. Thurgood Marshall, Avho is a member of the
United States Circuit Court of Appeals, Fourth Circuit,
also a member of the Maryland bar, a member of the United
States District Court for the District of Maryland, and the
United States Supreme Court. Your Honor", I move that
he be admitted to this Court for the purposes of this case.

The Co u r t : Motion granted.
Mr. B oulware : Thank you, sir.
The Co u r t : A correction of the pleadings, you say?

_ Mr. B oulware : Yes, sir, if your Honor, please. The
plaintiff would like to withdraw exhibit D and resubmit it
in a corrected form as plaintiff’s appendix A.

The Co u r t : Which is exhibit D?
Mr. B extet: If your Honor please, we have no objection

to that with this exception—
The Court : One minute—which is exhibit D ?
Mr. B enet : Comparison of the provisions of the Code

and rules.
The Co u r t : Yes, the rules and Code.
Mr. B extet : We have no objection. In fact, we agreed

with counsel that, subject to your Honor’s ruling, it could
be done, except we wish it to show what date those com
parisons were made.

The Co u r t : Y ou mean whether these are the present
rules or not?

Mr. B extet : N o, sir, we haven’t had a chance to check
them, and we know that some provisions of the Code which
they have there came from the Code itself, and the sections
have been amended. We wanted it clear what date that ap
pendix was based on. Then we have an appendix we think

42 Rice et al., A ppellants, v. E lmore, A ppellee

will clear up any questions as to when particular statutes
were repealed.

The Court : I think, with that qualification, the amend
ment should be granted. Can you furnish that date noAv?

Mr. B oulware : On the amended Code of Laws of South
Carolina, 1942.

The C ourt : Then the comparison between the excerpt
from the rules and the excerpt from the statute is based
on the 1942 Code?

M r. B o u l w a r e : T h a t’s right, your Honor.
The C o u r t : That answer your objection, Mr. Benet!
Mr. B e n e t : Not entirely. You see, there are certain

provisions in the Code of 1942 which have been repealed
and amended before this action was brought. They had only
access to the Code; they haven’t got some amendments that
came into the provisions and statutes they have set down
from the Code.

The C o u r t : Y ou mean amendments subsequent to
1942?

Mr. B e n e t : Yes, sir.
Mr. B oulware : If your Honor please, all that will be

taken up in argument.
The C o u r t : I ’ll allow the amendment, with the provi

sion all these are from the 1942 Code, and leave to you to
show they have been amended. All these on the righthand
side. Is this the schedule you are furnishing in lieu of ex
hibit D?

Mr. B o u l w a r e : Yes, sir.
Mr. B enet : One other thing, your Honor, we would re

serve the right to make amendment to our answer if it is
necessary, to cover any misstatement of fact as to these
parallel—

The C o u r t : I ’ll allow that.
Mr. B o u l w a r e : The plaintiff would also like to with

draw exhibit A of the plaintiff’s complaint, and we’d like
to have it attached to the stipulation which will be herein
after referred to.

The C ourt : Exhibit A contains excerpts from the—

A ppendix 43

Mr. B o u lw a r e : Constitution of South Carolina, 1895,
and we would like to have it withdrawn, and have it sub
mitted with the stipulation.

The C o u r t : Part of the stipulation?
Mr. B o u lw a r e : Yes, sir, but still referred to as ex

hibit A.
Mr. B e n e t : We have no objection, your Honor, with

the reservation we have not had time to* read the exhibit.
We think it s right—haven’t had time to check this morn
ing.

The Co u r t : You’ll have leave to file any objections or
anything that is not correct.

Mr. B o u lw a r e : Plaintiff also wishes to submit appen
dices B to I, which are tabulations of votes in the first pri-
ary, first and second primaries from the years 1936 to 1946.
If your Honor please, we also have appendix E. We have
only one copy. We would ask the Court to allow us to sub
mit it now and withdraw at the end of the case to have other
photostatic copies made.

The Co u r t : What is that?
Mr. B o u l w a r e : They are tabulations of votes cast in

the Democratic primary in South Carolina from 1936 to
1946, and are admitted by oral stipulation to be correct.

The Co u r t : That’s admitted, M r. Benet?
Mr. B e n e t : We admit they are correct statements. We

reserve the right to object to them as not responsive to the
pleadings.

The Co u r t : I ’ll allow it, with that reservation. As to
one of them, you say there are not sufficient copies ?

Mr. B o u l w a r e : Appendix E, sir. Throughout plain
tiff’s complaint, tabulation of votes in the Democratic pri
mary for the year 1940.

The Court : I ’d like when the exhibits are filed for them
to stay here. How long will it take to have them photo
stated?

Mr. B oulware : About two hours.
The Co u r t : You’ll have it done right here?
Mr. B o u l w a r e : Yes, sir.

The Co u r t : I ’ll allow it to be withdrawn for that pur
pose. I want them in right away though— want all exhibits
and everything in.

Mr. B o u lw a r e : This is appendix E.
The Court : Any further preliminary matters ?
Mr. B o u lw a r e : That’s all, sir, for the plaintiff.
Mr. B e n e t : If your Honor please, we noted a motion

before your Honor returnable last Monday in Charleston.
In view of the fact that we have now reached an agreement
with counsel on the other side, as to the stipulation for tes
timony, we’ll not press that motion at this time. In other
words, we withdraw the portion of it that asks for contin
uance, and we will, unless your Honor would rather hear
us, we’ll argue the other questions when they come up later
in the case.

The Co u r t : I ’d rather try the whole case at one time.
I think it ought to be done. I made up my mind if I was to
continue on anything, I ’d continue everything.

Mr. B enet : I want to say we had the finest cooperation
with counsel on this stipulation. Both sides have worked
on it. We hope it has all the essentials which your Honor
would need in determining the case. At the time we noted
the motion returnable Monday, which your Honor couldn’t
hear at that time, in one of the supporting affidavits we
stated that Mr. Baskin, who is one of the counsel, had suc
ceeded Mr. Pierce as Chairman of the Democratic Party,
Mr. Pierce having died since action was brought. In that
stage of the case, Mr. Baskin felt, and we agreed, that
he being now State Chairman, should withdraw as counsel
because of the possibility that he would have to take the
stand as a witness. In view of the fact that we have agreed
on witnesses, and that no other testimony be offered, we
would like to ask your Honor to let us withdraw that state
ment, and let Mr. Baskin continue as counsel in the case.

The C ourt : Statement withdrawn, and Mr. Baskin will
continue as counsel in the case.

Mr. B e n e t : And Mr. Yancey A. McLeod of the Bich-
land County bar.

The C o u r t : Add Mr. McLeod’s name.

44 Rice et al., A ppellants, v. Elmore, A ppellee

A ppendix 45

Mr. B enet : We reserve and do not waive the matters
raised in our motion to strike, and will later object to all
stipulations which are not responsive to the allegations of
the complaint if your Honor had granted our request to
strike.

The Co u r t : Let the record show that.
Mr. B e n e t : I think that’s all, sir. Just one thing more:

We have an appendix. We agreed with counsel they could
put in a parallel column document as appendix to the com
plaint, and they agreed with us, subject to your Honor’s
approval, that we might put in an appendix to our answer,
giving our comparison of the rules and Code or Constitu
tion. W e’d like your Honor’s approval.

The Co u r t : I ’ll allow that. When is it to be done?
Mr. B e n e t : We have it ready, hut we are checking one

or two items. We ’ll have it ready in the morning, in time__
The Court : Counsel for the plaintiff understand that,

and no objection?
Mr. M a r s h a l l : Yes, sir, the same rights—we reserve

the same rights to their exhibits as they to ours.
Mr. B e n e t : We reserve ours to the complaint—as now

filed does not constitute a cause of action. We will argue
that in the process of the case.

The Court: Yes, sir.
Mr. B e n e t : Just one matter of information, your

Honor: Attached to the original stipulation which has been
signed and will be handed your Honor, of course there are
certain ballots, in what we gave counsel and what we have
ourselves and what we’ll have to refer to. We simply have
a typewritten copy of those ballots— don’t have enough
ballots to attach the same to the stipulation given then—

The Co u r t : Those are printed ballots—ballots used?
Mr. B e n e t : Yes, sir. Counsel understands—
Mr. M a r sh a l l : Yes, sir, I Avonder if we could agree for

the sake of the record, the thing is very interesting, the
size of them— showing they all are the same size and met
the requirements of the law ?

The Co u r t : Yes, I think you are entitled to that. Let
it he stated that the copies of the ballots are the same size
and shape as the ballots themselves that were put in.

Mr. B enet : If your Honor please, the statute requires
that the ballots in the general election shall be printed on
white paper of a certain weight. It does not state the length
of the ballot; your Honor thoroughly understands that.
There may be one person voted for it, may be eight or ten
—the length of the ballot is not the same—but it is a fact
that the type of ballot, white paper, with the printing of
the office and of the man running and the width, are pro
vided by the statute, but the length is not covered.

M r. M a r sh a l l : That’s perfectly all right.
The C o u r t : Let that statement go in the record. It

satisfies you?
Mr. B o u lw a r e : Yes, sir.
Mr. B e n e t : That’s the general election ballot we are

talking about, your Honor.
The Co u r t : Let it stand.
Mr. B e n e t : I think that’s all the preliminary state

ments we want to make.
The C ourt : The preliminary statements having been

disposed of, we’ll go into testimony by way of stipulation,
as I understand it, Let one of counsel read. Furnish me
with a copy, please, or the original. (The Court was handed
a copy by counsel.)

The Co u r t : This has been signed?
A ttorneys : Yes, sir.
The C o u r t : I want it initialed. (Counsel initial.)
The stipulation read and copied at p ages___ of this

Appendix.
The Court : It isn’t necessary to read the exhibits. I ’ve

looked them over and seen them.
Mr. B e n e t : Your Honor, at this time, in order that

your Honor may be fully advised of our position, we ob
ject to 16, stipulation 16, as being pertinent or responsive
to the allegations of the complaint, that is the exhibit at
tached to the complaint, giving Governor Johnston’s state
ment, and we move to have that stricken, which your Honor
did not strike.

The C ourt : You take the position that it is improperly
before me, or that it is incorrect?

46 R ice et al., A ppellants, v. E lmore, A ppellee

A ppendix 47

Mr. B e n e t : N o, sir, we don’t say—it ’s correct—we
corrected—

The Co u r t : If it ’s correct, I ’ll allow it to stand.
Mr. B e n e t : Then, your Honor, we want to also object

to No. 20, stipulation No. 20, which says since 1900 every
governor has been a member of the then existing Demo
cratic Party.

The Court : This says nominee.
Mr. B e n e t : Yes, sir, nominee. We don’t think that

has any bearing on the issues of the case, any reference
we wish stricken from the complaint. We just want to call
your Honor’s attention to the fact that we object to this
as not being competent or pertinent to the action.

The Co u r t : At this time motion refused.
Mr. M a r sh a l l : We object to 24, sir, which is com

pletely immaterial, has no bearing whatsoever on this case.
The C o u r t : Well, I don’t know at this time whether

it does or not. It seems to me—I thought perhaps you had
put that in there.

Mr. M a r sh a l l : We most certainly did not.
The C o u r t : I ’m going to leave it in.
Mr. M a r sh a l l : All right, sir.
The Co u r t : Well, I have the stipulation before me.

As I understand then, there’s no further testimony. Neither
side desires to put in any testimony? What says plaintiff?

M r. B o u l w a r e : N o, sir, no further testimony.
The C o u r t : Defense?
M r. B e n e t : N o, sir, we have no testimony.
The Co u r t : Gentlemen, if you desire to proceed with

the argument, I ’ll hear you. Now at the pretrial confer
ence I requested the filing of briefs. To date, neither side
has followed that request. I wished to have an opportunity
of reading them before coming here. None of counsel has
done it.

You may proceed with the argument.
Mr. B enet : With regard to the brief which defendants

are now filing, since I appeared before your Honor in
Charleston last week, we have done nothing but work on
this ease, and I ’ll say counsel for the other side has done
the same thing. The main thing was to get the stipulation,

48 Rice et al., A ppellants, v . Elmore, A ppellee

and it took a great deal of time and discussion. We were
not able, either one of us, and I ’ll state that for counsel
on the other side—and it was not possible for us to have
briefs written in an intelligent form until we agreed on
the stipulation. That’s why we, and I think in fairness to
the other side, they, have not furnished you with a copy
earlier. The stipulation was only filed this morning. We
are filing the brief, original and a duplicate, with your
Honor, but we’ll have certain changes on the last page in
view of one or two things filed in the stipulation this morn
ing. |

Mr. B oulware : We have submitted the original and a
copy.

The Co u r t : Have you exchanged briefs'? I t ’s custom
ary here for each side to furnish the other with a copy.
Have you a copy for the plaintiff’s counsel? I think you’d
better give him one now. Has the plaintiff got one for the
defense?

Mr. B oulware : Yes, sir.
The C o u r t : Hand it to them.
Mr. B enet : I meant that copy to be for counsel. I didn’t

think you’d care for a copy.
One thing more, your Honor, at this time. As your

Honor sees, this is the first time we have seen each other’s
briefs. W e ’d like your Honor to give us a reasonable time
to file—

The Co u r t : After I hear oral argument, I ’ll give yon
time to file briefs, and attach to the briefs proposed find
ings of fact and conclusions of law for use in the final de
cision in accordance with the civil rules requiring findings
of fact and conclusions of law.

(Messrs. Boulware and Marshall argued to the Court
in behalf of the plaintiff.)

(Mr. Belser argued to the Court in behalf of the de
fendants. During the course of Mr. Belser’s argument,
the Court sa id ):

The Co u r t : I notice that the statutes regulating pri
maries in this state were repealed in April or May, April
I think it was, 1944. The rules of the party which I have
before me, adopted in May, 1946, I think—what were the

A ppendix 49

rules of the party between those dates, and how did the
convention adopt the rules in the 1946 convention? I ’d like
information on that.

(The Court recessed until 3 p. m., June 3, 1947.)

CONTINUED AT AFTERNOON SESSION,
JUNE 3, 1947, 3 P. M.

(Mr. Belser continued his argument to the Court in
behalf of the defendants. Mr. Elliott argued to the Court
in behalf of the defendants.)

(The Court adjourned until June 4,1947, at 10 a. m.)

CONTINUED AT MORNING SESSION,
JUNE 4, 1947, 10 A. M.

Mr. B e n e t : Just before we adjourned yesterday, your
Honor asked about the rules of 1944. Mr. Baskin has a stip
ulation, which he explained—

The Co u r t : I wanted to amplify that. Now this case
is a case that ought to decide the primary question for
South Carolina. This case, I assume, is going to the Su
preme Court of the United States irrespective of what
might happen. Therefore, I think we ought to have a com
plete, clear-cut, frank record. Now, I think the records show
me that a stipulation or statement can’t be agreed upon—
I’ll call for testimony—that the primary organization is
and was substantially the same before and after the en
actment of the statute—isn’t that a fact?

Mr. B e n e t : N o, sir.
The Co u r t : All right, I want some testimony on the

subject.
Mr. B e n e t : I ’m going into—
The Co u r t : I want testimony—I don’t want argument.

It may not be true. I think you ’ll have to put somebody up
who’s familiar with the organization—a member of the
party in 1942.

Mr. B e n e t : 1942?
The Co u r t : All right. Mr. Benet, if you can’t stipulate

on that, I want testimony.

50 Rice et al., A ppellants, v. Elmore, A ppellee

Mr. B e n e t : If your Honor please, we haven’t talked
to counsel on the other side about that stipulation.

The C ourt : Put somebody up.
Mr. B enet : The burden is on the plaintiff.
The Co u r t : I can almost take judicial notice of it. I

thought everybody knew how an election was run—
Mr. B e n e t : We haven’t the slightest objection. 1942,

1944, 1946 already—
The C ourt : Have you got 1942 and 1944 there ?
Mr. B e n e t : Haven’t 1942.
The Co u r t : Y ou say Mr. Baskin stipulated—Mr. Bas

kin is going to make the statement?
Mr. B e n e t : He was going to make a statement, your

Honor, in regard to a stipulation we reached with the other
side—

The Co u r t : I think h e ’d better take the stand, put in
testimony. I don ’t see why we don ’t have facts.

Mr. B e n e t : We haven’t the slightest objection to—
The C o u r t : I ’m not suggesting you are concealing

facts, hut I want to know. There’s no use to have another
case later. I thought we all knew how a primary was run.
I t ’s very serious as to whether or not it ’s legal or illegal.
I ’m not saying it is illegal, but isn’t it the same organiza
tion ?

Mr. B e n e t : I didn’t quite catch the last statement?
The Co u r t : Isn’t it the same organization?
Mr. B e n e t : N o, sir, it is not. You can see distinctly on

the parallels we set up here on the statutes and the rules.
The statutes, of course, are in evidence, don’t require any
proof, and the rules have been admitted as correct, which
are attached to our answer, ’46 rules.

The Co u r t : I want a statement as to the convention
held in 1942—was there not?

Mr. B e n e t : Yes, sir.
The Court : Let it be' admitted on the record. And

following that convention there was a primary from which
officers are selected, is that correct?

Mr. B e n e t : 1942? Yes.
The C ourt : Were there club meetings held in accord

ance with the rules in 1944? Were there club meetings held

A ppendix 51

in accordance with the rules in 1944— 1942 rules in 1944—
do you want to make this statement or not?

Mr. B ask in : Yes, sir.
The Co u r t : I think you’d better take the stand, Mr.

Baskin.
Mr. B a s k in : All right, sir.
Mr. B e n e t : If your Honor please, we think that the

burden of proof in this case is on the plaintiff.
The Co u r t : Oh, I think so, too, but I ’m sitting here in

a court of equity. I want facts.
Mr. B e n e t : I s your Honor calling Mr. Baskin, or is

plaintiff calling him?
The Court : I ’m calling him.
Mr. M a r sh a l l : I t ’s perfectly agreeable if Mr. Benet

wants for the record to show that we call him as an adverse
witness—he is, obviously.

The C o u r t : I think I ’ll call him as the Court’s witness.
I want facts. Take the stand, Mr. Baskin.

Mr. B e n e t : In order to protect our rights in the mat
ter, we have come here to meet the complaint as pitched by
the plaintiff, which is on actions in 1946, and we, therefore,
object to testimony going back into what happened in years
prior thereto.

The C o u r t : Let the record show the objection. Let the
record show the Court overruled the objection and called
Mr. Baskin as a witness for the Court.

William P. Baskin, sworn:
D irect E xa m in a tio n

Q. M. Baskin, you are a resident and citizen of South
Carolina ?

A. I am, sir.
Q. You are a member of the State Senate?
A. I am, sir.
Q. How long have you been a member?
A. Ten years.
Q. You are a member of the Democratic party?
A. I am, sir.
Q. Were you such in 1942?
A. I was.

Q. Have you or can you obtain for me a copy of the
rules of the party of 1942 ?

A. Yes, sir, I have a copy.
Q. You have a copy?
A. Yes, sir, it is a marked copy, which is my own per

sonal copy, but I have a copy.
The Co u r t : Will you furnish it to the Court?
(The witness handed the Court papers.)
The Co u r t : 1942. Mark that in evidence.
Q. Now, following this, the convention of 1942, was

there a primary held in South Carolina?
A. There was.
Q. In which candidates ran and officers were selected?
A. Yes, sir.
Q. Thereafter, in 1944, were club meetings held in ac

cordance with the party rules throughout the State?
A. In 1944?
A. Yes, in accordance with the party rules.
Q. In accordance with the party rules, were club meet

ings held?
A. Yes, sir.
Q. Delegates selected for the county conventions?
A. Yes.
Q. Officers of the club elected?
A. Yes, sir.
Q. County conventions held and delegates and officers

selected for the State?
A. Yes, sir.
Q. A State convention held?
A. Yes, sir.
Q. And rules adopted?
A. Yes, sir.
Q. Officers for the party selected?
A. Yes, sir.
Q. And were rules published in 1944?
A. There were, sir.
Q. And have you a copy of that?
A. Yes, sir, that was the stipulation.
(Witness produces papers.)
The Court : Put those in.

52 R ick et al., A ppellants, v. Elmore, A ppellee

A ppendix 53

Clerk : You wish to file this additional stipulation?
Mr. B a s k in : Yes, sir.
The Court : Let me see it.
Q. Were you a member of both those 1942 and 1944

conventions ?
A. I was not a member of either of the conventions.
Q. You were not a delegate?
A. I was not a delegate.
Q. You are familiar with them, however?
A. Yes, sir, I was a member of it—
Q. Following the 1944 convention, and in accordance

with the rules, were primaries held for the selection of
nominees ?

A. Yes, under the 1944 rules.
Q. Under the 1944 rules, and those candidates were

selected as Democratic nominees?
A. Yes, sir.
Q. And ran the general election?
A. They didn’t run, Judge, because nobody runs a gen

eral election.
Q. They were elected in the general election?
A. Yes, sir.
Q. And following that, in 1946, did the clubs meet?
A. Yes, sir, under the 1944 rules.
Q. Under the 1944 rules. Were the meetings of the

clubs substantially as they had always been?
A. There were a number of differences in the 1944

rules.
Q. There were a number of differences in the 1944

rules as to the qualifications for voting??
A. The qualifications for voting were different from

the previous rules.
Q. As to age?
A. No, sir, not in 1944, but in 1946 they were.
Q. In 1944, what were the differences?
A. I would have to check them for you.
Q. I mean anything material?
A. Yes, sir, I think in 1944 a provision was put in for—

pledged to support the nominees of that primary.
Q. What?

54 Rice et al., A ppellants, v. Elmore, A ppellee

A. Pledged to support the nominees of that primary.
Q. A pledge to support the nominees?
A. Yes, sir.
Q. The same method for officers elected, executive

committeemen, electing delegates to the convention—the
county conventions and state conventions—the same ma
chinery, in other words, was used?

A. The same general method.
Q. The same general method, and then the 1946 con

vention, state convention, convened, and adopted these 1946
rules ?

A. That is a fact.
Q. And they are here now—under which the party op

erates ?
A. That is correct.
Q. Entirely free from state statute?
A. Yes, sir, entirely free.
Q. Any questions for the witness on behalf of the plain

tiff?
M r. M a r sh a l l : N o, sir.
The Court : Any questions on behalf of the defendants!
Mr. B e n e t : Will you indulge me one moment?
The Court : If you gentlemen want a few moments for

consultation, I have no objection.
Mr. B e n e t : Yes, sir, we’d be glad for it.
Mr. M a r sh a l l : We want to try to check these rules,

if your Honor please.
(All counsel confer.)
The Court : Does plaintiff waive cross examination or

desire it?
Mr. M arshall : I want to ask one or two questions.
The C ourt : Go ahead.

Cross E xa m in a tio n

By Mr. M a r sh a l l :
Q. I want to ask Senator Baskin, after looking at the

’42 rules, at 32, as to whether or not the oath for voters
wasn’t inconsistent in the ’42 rules, page 10?

A. Page 10?
Q. Page 10.

A ppendix 55

A. Rule 32.
The Co u r t : What is it—1942 or 1944?
Mr. M arshall: 1942 rules, sir.
The Court : 1942.
A. I pledge myself to abide by the results of the pri

mary and support the nominees of such party, state and
national,—

Q. Were the 1942 rules changed, the oath each voter
took in the primary election in 1942 ?

A. Yes, I just hadn’t looked back at them.
Q. The Court : What were the 1944 rules in regard to

the national?
Clerk : The ’44 are attached to the last stipulation.
Mr. Ba s k in : If you let me pick another pamphlet I

have, I ’ll tell you the differences.
The Co u r t : Certainly.
(Witness consults papers.)

■ Mr. B askin : In the oath for candidates, the 1942 rules
took out the word “ election” .

The Court : Which rules ?
Mr. B a s k in : 1944.
The Co u r t : 1944— “ election” ?
Mr. B a s k in : The 1944 rules referred to primary elec

tions—referred to statute— the rules of 1944 took out the
word “ election” — changed the date from July to August—
and took out “ of the party, state and national” — so that the
rule read, “ support the nominee of the primary” .

The Court : Just nominee of this primary?
Mr. B a s k in : Of this primary, yes, sir. There were

numerous changes in 1944 because of the statutes coming
off the books, and, in fact, the party was an association
without statutory control.

Mr. M arshall : If your Honor pleases, our copy
doesn’t agree with it, I ’m talking about the 1944 rules. Rule
No. 32.

The C ourt : Suppose you look at that, 1944, look at the
rule book— the clerk will give it to you.

Mr. B a s k in : N ow, where is it?
Mr. M arshall : Rule 32, appearing on page 9.

66 R ice et al., A ppellants, v. E lmore, A ppellee

Mr. B a s k in : The 1944 rule read, “ I do solemnly swear
that I am a resident of this club district and am duly quali
fied to vote at this primary according to the rules of the
Democratic party, and that I have not voted before at this
election, and pledge myself to support the nominees of this
primary. ’ ’

Q. Has not the rule of 1946—is it not true that 1946 is
exactly the same?

The C ourt : Show him the 1946 rules.
Mr. B a s k in : It is the same, (consulting papers)
Q. The same. So that in 1942, 1944 and 1946, the oath

for voters practically was the same ?
A. No, it is not.
The Co u r t : He has indicated a change from 1942 to

1944.
Q. Change in the one word “ election” in the first sen

tence.
A. No— addition—the ’42 rule required the voter to

support the nominee in the ensuing general election. The
’44 and ’46 rules required them only to support the nominee
of the primary.

Mr. M a r sh a l l : That is all.
The C o u r t : Any questions?

E xamination

B y Mr. B e n e t .
Q. Now, Mr. Baskin, in regard to the calling of the 1944

convention, or meeting, will you state to the Court how that
was called?

A. After the session in 1944, when all the statutes were
removed governing primary elections, and the general as
sembly introduced the act to repeal the constitutional pro
vision, article 2, section 10, the party rules then no further
had any statutory support, and the chairman, Mr. Smith,
asked—

The Co u r t : Mr. Winchester Smith?
Mr. B a s k in : Yes, sir.
A. (cont) ask the former party officials and members

to go ahead and call club meetings under our rules without
statutory help. Those club meetings were called, and they

A ppendix 57

did come to the convention of 1944 which was held in May,
after the statutes were repealed in April, and that conven
tion organized itself into the Democratic party of South
Carolina. There is no holdover from one to the other.

Q. As a matter of fact, wasn’t that convention faced
with the facts that there were no statutes then applicable
to the conduct of primaries by any parties'?

A. It was, sir, and that convention made numerous
changes in the rules.

Q. In its rules, that is?
A. Yes, sir, in its rules.
Q. The rules of the Democratic party?
A. Yes, sir, even going so far as to remove a number

of rules with reference to municipal primaries, and setting
up a short, municipal general rule. It also provided for vot
ing machines in primary elections, which the statutes had
not previously authorized, and other things.

Q. What about absentee ballots, if anything?
A. Let me see that, (indicating) It provided a method

for absentee enrollment and absentee ballot.
Q. Had there been any such provision in the rules prior

to that time ?
A. Yes, sir, there was a provision in the prior rules,

but it was changed entirely.
Q. Well, that, as a matter of fact—
A. Changed materially rather, not entirely.
Q. That was largely due to taking care of men in the

service, wasn’t it?
A. Correct, sir.
Q. Now, Mr. Baskin, I ’ll ask you to look at the first

paragraph in the rules of 1944, No. 1—let’s see the ’44 rules
—paragraph 1, doesn’t that say that say at the convention
of the Democratic party of the State of South Carolina be
gun and holden at Columbia on the 17th day of May in the
year 1944, the following rules are ordained and established
in place of the constitution and rules of the party hereto
fore in force, which are hereby declared null and void?

A. They do, sir.

58 R ice et al., A ppellants, v. Elmore, A ppellee

Q. State whether or not any action as far as you know
was taken under the preceding rules after that convention
of 1944?

A. After the convention of 1944? No act of the party
was taken under the preceding rules.

Q. All right, sir. Under the rules of the party—that is
the 1946 rules—turn to the answer there—what rules are
those ?

A. Those are the ’46 rules.
Q. The ’46 rules. What preamble, if any, is there to

those rules?
A. That has, at the convention of the Democratic party

of the State of South Carolina begun and holden at Colum
bia on the 15th day of May in the year 1946, the following
rules are ordained and established in place of the constitu
tion and rules of the party heretofore in force, which are
hereby declared null and void.

Q. Since those rules were adopted at that time, has any
action, so far as you know, been taken under the rules of
1944?

A. None whatsoever, sir.
Q. So, the Democratic party of South Carolina today,

of which you are chairman, 1 understood you to testify?
A. I am, sir.
Q. Is set up and established under what rules?
A. The ’46 rules.
Q. The 1946 rules?
A. Yes, sir.
Q. And the rules of 1942 and 1944 have no application

to it, the set up of the Democratic party of today?
A. Not a bit, sir.
The C ourt : Let me interrupt that, the 1946 rules has

something about corrected in June—what does that mean?
Mr. B a sk in : After the convention, the secretary next

day published the 1946 rules. Immediately when they came
to my desk, I realized there were errors, and he was called—

The C ourt : Clerical errors ?
Mr. B a s k in : Clerical errors, yes, sir,— corrections.
The Co u r t : Corrections as to the printing of it?
Mr. B a sk in : Yes, sir.

A ppendix 59

Q. As far as the 1946 rules are concerned, what pen
alty, or provision, if any, is included in that rule or in those
rules, for non-observance or violation of those rules?

A. We have only in our rules today the penalty of ex
pulsion from the party.

Q. Before the statutes were repealed, what penalty was
there ?

A. Every penalty for perjury or fraud—penalties of
jail or fine, penalties of the Courts.

Q. None of those are now included?
A. None.
Q. Or pertinent to the operation of the South Carolina

Democratic party under the rules of 1946, which are the
controlling rules at this time?

A. That’s correct, sir.
Q. What about voting machines ?
A. The rules of 1946 permit voting machines in pri

maries.
Q. Was there such a provision heretofore?
A. There was none.
Q. What about age qualifications wdien the statutes

were in force?
A. The ’46 rules permit a person eighteen years of age

to vote. All previous rules confined it to twenty-one. The
’46 rules add one other thing, Mr. Benet, that was that a
person must be able to read and write or interpret the con
stitution.

The Co u r t : Y ou say that was added in ’46?
Mr. B a s k in : Yes, sir.
The Co u r t : W asn’t that in the old rules?
Mr. B a sk in : No, sir.
The C o u r t : It was in the statutes?
Mr. B a s k in : N o, sir.

Mr. B a s k in : What was the question, please?
The C ourt : I asked if the old rules or statutes—
Mr. B a sk in : Not in the primary statutes, I ’m not posi

tive about the general election statutes.
Q. Mr. Baskin, in the 1946 rules now in effect, is there

a provision for absentee enrollment?

60 R ice et at, A ppellants, v. E lmoke, A ppellee

A. There is, sir. I ’d like to have the paper I prepared,
(consults papers)

Mr. B e n e t : If your Honor will permit me, I ’d like to
hand up the appendix—we have got a parallel column here,
sir, and I think it might make it a little clearer on the ques
tions I am going to ask.

Mr. B a s k in : We gave them copies.
Q. Now, Mr. Baskin, you have a copy of the defend

ants’ appendix in your hand, have you not?
The Court : Stipulated that should be filed, was it not?
Mr. M a r sh a l l : Yes, sir, we filed one stipulation—could

file one— and both sides reserving, respectively.
Q. In the first one, speaking of qualifications for club

membership, rule No. 6, you have already testified that the
applicant for membership or voter should be eighteen years
of age, and so forth, is that correct?

A. That’s correct.
Q. Now, in the parallel column is section 2355 of the

civil Code, what did it state should be the age ?
A. Twenty-one years of age.
Q. Twenty-one years of age. Now, at the bottom of the

code section is a provision: provided, that the state conven
tion of any political party, organization or association in
this State shall have the power and authority to add to or
to limit the qualifications for membership in such party,
organization or association, and for voting at the primary
elections thereof, if such qualifications so added or limited
do not conflict with the provisions herein as to the age and
residence of members and voters. Is there any such provi
sions in the rules ?

A. None.
Q. None whatsoever. On the next page, on absentee

enrollment, do the rules provide under Section 10 (a) any
person, who because of absence from the State or illness,
is unable to go—may enroll?

A. They do.
Q. Any such provision in the code?
A. There was not.

A ppendix 61

Q- There was not. As to the oath for candidates under
the 46 rules, what have you to say as to the oath set out
there, under 26 (a), (b) and (c) of the rules?

A. They were in the rules but no statutes.
Q. No statutes on that. On the next, as to oath to be

taken by voters?
A. Let me explain myself, When I say no statutes, I

mean no statutes in April 1944, prior to the session.
By the Court :
Q. What about prior to that?
A. I don’t know of any prior statute, Judge, but we

had limited it to a definite date, which is the date before
the special session.

E xam in a tio n
By Mr. B en e t , cont.:
Q. In other words, in order that it may be clear on the

record, Mr. Baskin, all the rules you are talking about here,
May, 1946, were amended at that time on account of cleri
cal errors ?

A. Yes, sir.
Q. The statutes you are talking about were in effect

April 13,1944, is that correct?
A. That is correct.
Q. As to rule 32, oath to be taken by voters, contrast

that with the code section 2365.
A. The rule provided that the managers at each box

at primaries shall require every voter to pledge himself to
abide by the rules of the primary and to take the following
oath and pledge: 1 do solemnly swear that I am a resident
of this club district and am duly qualified to vote at this
primary according to the rules of the Democratic party,
and that I have not voted before at this election, and pledge
myself to support the nominees of this primary.

Q. What did the statutes require?
A. The statute did not have that provision, and pledge

myself to support the nominees of this primary.
The Co u r t : The statute did or did not?
Mr. B a sk in : Did not.
Mr. B enet : Did not.
The Co u r t : Had no oath?

Mr. B a s k i n : Had an oath—it had no provision—this
oath was, “ I do solmnly swear that I am a resident of this
club district and am duly qualified to vote at this election,
and that I have not voted before at this election. ’ ’

Q. You point out that the rules add, “ and pledge my
self to support the nominees of this primary.” All right.
Now, as to rule 33, paragraph 2, on unopposed candidates
omitted from ballot. What does the rule require or pro
vide?

A. Provides that county committees and the state com
mittee are directed to declare any candidates without op
position nominees of the party without having placed the
names of such unopposed candidates on the ballots.

Q. Any statutory provision to that effect?
A. None.
Q. Absentee voting, 47 (i), what about that?
A. Provides that the Secretary of the County Commit

tee shall file with the County Chairman, not later than Fri
day noon next preceding the primary, a complete list of all
absentee ballots, and said list shall be kept by the County
Chairman and shall be available for inspection.

Q. Any statutory provision?
A. None.
Q. Point out the difference between rule 36 and 2366,

which applies to protests and contests?
A. The essential difference between the two is that

under the statute, if you wanted to protest an election, you
appealed within two days, and your hearing was had by the
county committee before the next Tuesday, at which time
it would come before the state committee, all within one
week.

Q. What about the rules?
A. Under our rules, you appeal within two days, you

have until the next Tuesday to appear before your county
committee and the next Tuesday before your State, which
gives ample opportunity for appeal or protest. The statute
did not give it.

Q. The statute did not give it. Rule 49, now, watchers
at the polls. What do the rules provide on that?

62 Rice et al, A ppellants, v. Elmore, A ppellee

A ppendix 63

A. The rules provide that any candidate may appoint a
watcher at all polls.

Q. Any poll he desires?
A . Yes, sir, but the statutes only provided that candi

dates in counties where there was a city o f twenty thousand
or more could appoint a Avatcher.

Q. Was a provision in 2395 about when a person is
physically disabled?

A. Only for a voter if he couldn’t write his own ballot,
he could ask for the watcher from the booth from both sides.

Q. Just specifically for one disabled voter?
A. Correct. Our rules provide a general watcher.
Q. Y ou r rules proAude a general Avatcher. Now , Ave

come to the next, municipal democratic clubs, rule 44,
shortly stated, provide Avhat?

A. It provided that upon a petition by a representative
number of Dem ocrats, that a municipal club could be or
ganized provided that club conducted a prim ary— or sub
stantially— in accordance Avith the rules of the party.

Q. Now, we have set out there, Mr. Baskin, on that
page and the next page, the statutes that Avere in effect on
April 13, 1944, regarding municipal elections or prim aries
Avhich Avere repealed, H oav m any Avere there?

A. There Avere forty statutes, different statutes, on the
books regulating municipal prim aries, in conflict Avith the
other, in varying sizes of toAvns and cities— all of them Avere
on the books. Our rule of tAvo paragraphs takes the place of
forty statutes.

Q. Forty statutes?
A. Yes, sir.
Q. N oav, we come to penalties for violation, and you

have already testified that under the rules of the party, the
only penalty would be expulsion from the party?

A. Yes, sir.
Q. For violation of the rules?
A. Yes, sir.
Q. That’s the entire rule 50 set out in this parallel

column ?
A. It is.

64 R ice et al., A ppellants, v. Elmore, A ppellee

Q. Under Section 2400 and 2370 of the statutes, what
were the penalties there?

A. The penalties were fines of not more than $500.00,
nor more than six months in jail.

Q. Penal statutes?
A. Penal statutes.
Q. There, section 2400 speaks of perjury, isn’t that cor

rect?
A. What?
Q. Section 2400 speaks of perjury?
A. Yes, sir.
Q. The only provision in the rule as you stated, is ex-

plusion from the party for violation?
A. The party, after the statutes were removed, became

a voluntary association, and it provided only for expulsion
from that association for violations of its rules.

Q. Now, rule 51, secretaries and absentee ballots, is
there a rule in the party rules of May 15,1946 on that ?

A. There is in our party rules of 1946, but there was
none in the statute.

Q. What does your rule provide?
A. Our rule provides that the secretary of county com

mittees, that is, the county Democratic executive commit
tee, or state Democratic executive committee, can not act
if he is an opposed candidate. In other words, he would not
be authorized to pass upon anything that might affect his
candidacy.

Q. Any such provision in the code?
A. None.
Q. None in the code—what about voting machines, un

der section 53 of the rules?
A. Authorizes county executive committees at their

discretion to use voting machines in primaries, but there
was no such provision in the statutes for primaries.

Q. Now, Mr. Baskin, referring to the appendix which
was filed by plaintiff in this case, and referring to our rule
12—you’ve got our rule 12 there—

A. Yes, sir, I ’ve got it.
Q. Under the rules of the party, where is it provided

that county conventions should meet?

A ppendix 65

A. At the county seat.
Q. Under statute 2360, where was it provided that

county conventions should meet?
A. According to this appendix—
Q. Just a minute—
A. This appendix is in error. The appendix is in error;

the appendix says county seat under the statute, but it was
the court house under the statute—our rules state county
seat.

The Co u r t : Not very much difference, is there, Mr.
Baskin ?

Mr. B a s k in : Yes, sir, considerable difference—under
the statute, they met in the court house, a public building,
under our rules, they met at the county seat.

The Co u r t : Doesn’t the statute say—read me that—
Mr. B a s k in : Yes, sir. (consults papers)
Mr. B a s k in : Every general election year county con

ventions shall be called by the county committee to meet
on the First Monday in May, at the county seat—I ’m
wrong.

The Co u r t : County conventions—I ’ve attended them
and they didn’t meet in the court house.

Mr. B ask in : Maybe I ’m wrong. Let me be positive, sir.
My memory— (consults papers)

Mr. B e n e t : Your Honor, it looks like our parallel col
umn seems to be in error on that. .

Mr. B a sk in : It apparently is.
The Co u r t : Suppose we pass on.
Q. Now, Mr. Baskin,—
A. Yes, sir.
Q. Were these major differences you have pointed out

between the rules of the Democratic party of South Caro
lina, adopted in 1946, and the statute— state whether or not
the Democratic party of South Carolina is set up under the
rules of 1946, and operates under those rules ?

Mr. M a r s h a l l : I f your H onor pleases, I have quite a
little evidence— I want to object— I certainly object to that,
calling for a conclusion of the witness.

66 R ice et al., A ppellants, v. E lmore, A ppellee

The C o u r t : Well, I ’ll allow him to ask that. I put the
witness up. I ’m going to allow cross examination. It is my
witness.

Q. All right, Mr. Baskin, you heard the question—you
have already testified you are state chairman of the pres
ent Democratic party, that’s true!

A. I am, sir.
Q. State whether or not the Democratic party of South

Carolina was organized, set up and now operates under the
rules of 1946, which are attached as an exhibit to the an
swer of the defendants in this case?

A. The Democratic party operates and did operate in
1946 under the 1946 rules. It was set up at the convention
of 1946, under the 1944 rules, which were adopted after re
peal of the statutes.

Q. As to operation now, what is it operating under?
A. 1946 rules.
Q. The 1946 rules.
Mr. B e net : You may have the witness.

E xamination

By Mr. M arshall.
Q. Senator Baskin, in your appendix one, when you

speak of no statutes—what I am trying to get clear is, did
you include in the statements none—there—did you assume
in that that those statutes that were repealed in 1944 were
not in existence in 1944?

A. No, we did not.'
Q. I mean, for example, there was an absentee ballot

provision in existence in 1944?
A. There was an absentee ballot, yes, but I think what

ours show, there was no absentee enrollment.
Q. There was a provision for absentee ballot?
A. Yes, sir.
Q. You read from the first paragraph of the rules in

1944, the rules in 1946. Would you mind also reading the
first paragraph of the rules of 1942?

A. At the convention of the Democratic party of the
State of South Carolina begun and holden at Columbia on
the 20th day of May in the year 1942, the following rules

A ppendix 67

are ordained and established in place of the constitution
and rules heretofore in force, which are hereby declared
null and void.

Q. No substantive difference in the first paragraph of
any of those ?

A. There is none, except the fact that when the party
reorganized, it reorganized completely.

Q. Been doing that?
A. Yes.
Q. There’s nothing sustaining them doing that in 1944,

was there?
A. No.
Q. And each convention meets and repeals all the other

laws and starts out again?
A. Yes, prior conventions had little to do because the

statutes regulated that. The conventions of 1944 and 1946
had the duty of providing for every contingency—complete
regulations—had no statute to back it.

Q. How many additional regulations did they pass in
1942 they didn’t have—in 1944 they didn’t have in 1942?

A. I don’t—
Q. The rules would show?
A. The rules would show.
Q. You said a difference in the municipal elections—

I want you to point out the substantive difference in the
rules of 1944 as to congressional elections, substantive dif
ference, in the 1942 and 1944 rules on that point.

A. The 1942 rules provided for municipal Democratic
clubs, upon a petition signed by fifteen persons of qualified
voters, as shown by the books of registration.

Q. I ’m speaking as to congressional elections.
A. You asked me about municipal—I ’ll have to read

from the municipal—
Q- I think you misunderstood—I said excluding the

question of municipal elections, will you point out as to
congressional elections the difference, substantial differ
ence, between the 1944 and 1942 rules?

A. There was an additional oath for congressional can
didates in the Democratic primary.

68 Rice et al, A ppellants, v. E lmore, A ppellee

Q. Additional oath!
A. Additional oath.
Q. And—
A. Let me explain that. That oath provided that a can

didate running for the United States Senate or for the
United States House of Bepresentatives, this additional
pledge shall be required: I will support the political prin
ciples and policies of the Democratic party of South Caro
lina during the time of office, to which I may be elected.

Q. That applied to the candidates?
A. Yes.
Q. All right. What substantial difference—with that in

mind, could you give me other substantial differences, if
we assume that is substantial? Any other material differ
ence in the way the 1944 primary was run and the way the
1942?

A. There are numerous differences. The 1944 primary
allowed an eighteen year old to vote—I mean the ’46 did.

Q. 1944, I want just now?
A. 1944?
Q. 1944 and 1942.
A. The 1944 permitted a club secretary of a precinct to

enroll any persons in the armed forces, whereas the 1942
did not.

Q. Weren’t many in the armed forces in 1942, were
there ?

A. No, no. The 1944 permitted absentee enrollment to
be made by a person, kinsman or friend, and only on ap
plication in writing and not supported by oath as in 1942.

Q. I ask you, Senator Baskin, wasn’t that also for the
purpose of men in the service?

A. It was.
Q. Other differences, rather—
A. I can give you other differences.
Q. That’s what I ’d like to have, sir.
A. The 1942 rules provided for the filing of rolls with

the clerk of the court of the county; the 1944 provides for
filing them with the party county chairman.

Q. Any others?

A ppendix 69

A. The 1942 rules provide for an application to a judge
of competent jurisdiction for any person who may be off
of the roll and who wanted to get on, and the 1944 rules
provided he shall apply to the county chairman. The 1942
rules provide that the original enrollment book shall be
filed in the clerk of court’s office. The 1944 rules provide it
shall be filed with the county chairman of the party. The
1942 rules provide that all candidates must subscribe to
a pledge required by an act of the general assembly, and
file that pledge with the clerk of the court of common pleas.
The 1944 rules provide that he must file a pledge under
these rules with the secretary of the county committee.

Q. That’s the candidate, did you say?
A. Yes.
Q. That doesn’t apply to the voters at all—the voters,

now?
A. Yes, as to voters.
Q. Go right ahead, that’s what I want.
A. The 1942 rules provide he must support the nomi

nees of the party, state and national, and “ of the party,
state and national” , were stricken, and the words, “ this
primary” , put in.

Q. In 1944?
A. In 1944, you support the nominee of the primary;

in 1942, support the nominee of the party, state and na
tional.

Q. Go right ahead, sir.
A. The 1942 rules provide for the closing of the polls

in a number of cities, different hours, and the 1944 rules
cut out those various cities, and leave it to the county com
mittee.

Q. Is that particular provision pertinent to Richland
County?

A. In Columbia, yes.
Q. In Columbia?
A. Under that provision, Columbia would have had to

close at six o ’clock—under the rules closed at four.
Q. Two hours difference in the time the polls are open?
A. Yes. And in the oath to be taken by voters, the 1942

rules provide that the voter must pledge himself to support

the nominees in the ensuing general election, and “ in the
ensuing general election” was eliminated in the 1944 rules?

Q. When you say support a candidate, successful can
didate of a primary election, what could you possibly mean?

A. What?
Q. When you say you pledge to support the success

ful candidate of a primary election, what else could you
mean other than in the general election?

A. I don’t know.
Q. Go right ahead— any more?
A. The 1942 rules provide that the rules of the party

may be amended or altered at the regular May convention
or state convention—no, at the regular May convention or
any state convention called especially for that purpose,
the call of which shall specify the changes to be made.
There was added in 1944—provided that notice to amend
be given the state chairman at least five days before the
convention. That was done for this reason: Before the 1944
convention, the statutes governed. A t the 1944 convention,
there were no statutes, and the convention provided for
amendments.

Q. Any other changes, material to congressional elec
tions ?

A. I have already pointed out the one about municipal
elections, you want it pointed out?

Q. I ’m trying to restrict it to what you consider ap
plied to a congressional primary?

A. Voting machines, in Section 10, were added. The
county executive committee could, at its discretion, use vot
ing machines.

Q. Is there any recognized material difference in the
conduct of an election between the voting machine and the
Australian ballot other than the one that the voting ma
chine is easier to operate and harder to tamper with—any
thing other than that?

A. Frankly, I ’m not familiar with voting machines.
Q. Isn’t it true that voting machines are considered

the safest method of having a clean election?
Mr. B enet : We have no objection to that statement,

but what that’s got to do—it applies to no question—

70 R ice et al, A ppellants, v. Elmore, A ppellee

A ppendix 71

The Co u r t : N o, I don’t think a provision allowing vot
ing machines sheds any material light—

M r . M a r s h a l l : I withdraw the question.
Q. Anything else, Senator Baskin?
A. The rule on absentee voting, as it appeared in the

statute and the rules of 1942, were changed and simplified.
Just numerous little small changes, the effect of which was
to make it easier for a person to vote absentee if he were
away out of the United States or in the armed forces.

Q. Well, as I mentioned before, that was passed pri
marily to take care of the armed services, wasn’t it?

A. Yes, sir.
Q. May I ask you one question, Senator Baskin, you

are in the Senate of the General Assembly. Was any con
sideration given to the same provision for general elections
at that time ?

Mr. B enet : If your Honor please, we question whether
that has any competency, as to what was considered in the
general assembly, as to general elections. No question is
raised here about general elections.

The C o u r t : Y ou wish to find out whether any law was
passed?

Mr. M a r sh a l l : Y es , sir.
The Court : He can ask whether any act was passed.
Mr. B e n e t : I f your Honor please, I don’t know what

it is that counsel is driving at. We don’t see what bearing
this would have upon the question he raises here in his
complaint.

The C ourt : I am doubtful whether it sheds any light
on it myself. I ’ll hear it. I f it doesnt’ shed any light, I
won’t use it.

Q. Were any acts passed in the general assembly as to
general elections, simplifying absentee voting?

A. The special session of 1944 passed an act author
izing absentee voting in general elections, but that was ma
terially different from the act which was repealed author
izing absentee ballot in primaries.

Q. Any other sections there?
A. The word “ election” was stricken and “ primary”

used. Of course, that is—

72 R ice et al., A ppellants, v. Elmore, A ppellee

Q. In the oath, you mean?
A. In numbers of places in the rules. I don’t know

about in the oath.
Q. However, it is true that in both the 1944 and 1946

rules, you require your voters to take an oath that he hasn’t
voted in this election, isn’t that true? Rule 32, I believe it
is—rule 32?

A. These rules say so, but I am quite positive that the
convention amended that, and that is a clerical error. I
could verify that if you want me to.

Q. Senator Baskin, is this the rule? Maybe I will get it
straight once and for all—is this the rules of the Demo
cratic Party of 1944 and 1946?

A. As far as I know they are correct—that’s the only
thing in them I see that I remember was different.

Q. Is this a copy of the rules given to officials, to elec
tion managers, primary managers?

A. They were.
Q. This is the book they used, is it not?
A. That is correct.
Q. And under this, aren’t they required to administer

the oath as it appears in this book, to the electors who come
in to vote? On a question on examination by Mr. Benet,
you raised the question about the watcher being different
from the statute. Isn’t the section you read from in the
1944 rules essentially the same as in the 1942 rules on
watchers ? Rule 49, in the 1942 rules ?

A. I think it is the same as in the 1942 rules, yes, sir.
Q. 1942 and 1944 are the same?
A. Yes, sir, the rules are, but not the rules and the

statute.
Q. Senator, how long have you been a registered Dem

ocrat— registered Democrat— enrolled Democrat?
A. A Democrat doesn’t register in the party; he en

rolls.
Q. How long have you been an enrolled Democrat—

about ?
A. Let me see—twenty-two years.

A ppendix 7 3

Q. And during that time, you have been more or less
familiar with the Democratic party of South Carolina, have
you not?

A. During the last few years.
Q. Isn’t it true that although the Democratic party at

each convention adopts new rules and regulations, isn’t it
true that the personnel of the party is run through from
year to year—the same except as to those who die?

A. Oh, no, the personnel changes materially from year
to year.

Q. You mean that the Democratic party of South Caro
lina today is different from the one in 1946?

A. In many respects, yes, as to persons in it.
Q. What do you mean—you go to some other party?
A. Different officers, club officers, different county offi

cers, different state officers.
Q. I ’m not speaking of officers, I ’m speaking of the

membership in general?
A. Oh, membership, yes, sir.
Q. The membership runs the same year in and year out

with few exceptions?
A. With some exceptions.
Q. With some exceptions. Is it true that the conven

tion rules and regulations, that there are some changes
made from convention to convention?

A. Prior to the convention of 1944, the changes were
very, very minor or very, very few.

Q. Very few?
A. The convention of 1944 and the convention of 1946

made substantial changes.
Q. The convention of 1944 and the convention of 1946

made substantial changes. Prior to that time, they made
minor changes, is that correct?

A. Of course, it was governed by statute. I mean it—I
mean all primaries were governed by statute.

Q. All governed by statute prior to that time?
A. Yes, sir.
Q. Senator Baskin, I am, of course, unfamiliar with

how this election is run. When this oath is administered,

74 Rice et al., A ppellants, v. Elmoke, A ppellee

they require a man to take an oath the same way he takes
it in the courtroom? How is the oath administered?

A. A fellow simply says: “ You solemnly swear to sup
port the nominees” — or whatever the oath is—“ support
the nominees of the party and haven’t voted elsewhere in
this primary.”

Q. With the variation you mentioned—they took an
oath under the statute—or with the exception of that varia
tion, they administer the oath the same way—the same gen
eral type of an oath, don’t they?

A. With the exception of the variation, as to state and
national and as to ensuing general election.

Q. So that, as a matter of fact, isn’t it true that there
is no way in your rules, there is no way in the way the con
duct of a primary has been carried out for the voter who
votes in the Democratic party election in South Carolina
to know whether he is taking an oath under the statute or
under the rules and regulations, unless he reads them—is
that true ? Is there anything you can point to to show that is
not true?

A. Numerous people wouldn’t know where the oath
came from.

Q. Senator Baskin, I don’t know whether you need
time on it—Rule 28 of all three of the sets of rule, being
specifically actual conduct of the primary elections, the
manner in which it shall be conducted, aren’t rules 28 and
29 of the 1942, 1944 and 1946 rules almost identical?

A. No, there are material differences.
Q. That’s what I wanted to get in the rules.
A. The 1942 rules provide or direct a primary election

on the last Tuesday in July, and the second and third pri
mary, each, two weeks thereafter.

Q. In the ’42 rules?
A. ’42.
Q. Let’s read rule 28 as you have it.
A. All right. See the 1942 rule had a direct primary

election and a second and third two weeks thereafter, with
this proviso, that the county committee of any county shall
be at liberty to order the elections, under these rules or by
statute. The 1944 rules took out “ or by statute” , and cut

A ppendix 75

out “ election” , and changed the primary from two weeks
between them to four weeks between them, which was im
possible under the statutes.

Q. How about rule 29?
A. There appears to have been no change made.
Q. So that, with the exception of the time element, with

the exception of the removing of the words, “ or by stat
ute” , there’s no material difference in these sections, that
is, how the primary shall be conducted in these three sets
of rules? Is that correct?

A. Those are the changes, yes.
Q. Restricting ourselves now to the 1942 election, am

I correct that the 1942 election was run—
Mr. B e n e t : If your Honor please, we object to going

back to the 1942 election.
The Co u r t : Objection overruled. Proceed.
Q. The primary held in 1942—I wanted to ask of you,

as to whether it was run pursuant to the statute or run
pursuant to the rules of the Democratic party, or run pur
suant to both?

A. In the pimary?
Q. Yes, sir—1942?
A. The actual primary was run pursuant to the stat

utes. The rules were the same.
Q. Well, what did you give to the people who conducted

the primary election— statutes or rules?
A. Gave them rules.
Q. What did they follow the statutes or the rules?
A. Followed rules.
Q. In the 1944 and 1946 primaries, what did you give

the election managers to run the election by?
A. The rules.
The Court : Any further questions for the defendants ?
B y Mr. B e n e t :
Q. In 1942 and 1944, state whether or not the rules

followed the statute?
A. In 1942 and 1944?
Q. In 1942, first?
A. In 1942, the rules did follow the statute.
Q. What about 1944?

76 Rice et al., A ppellants, v. E lmoke, A ppellee

A. There was no statute for the rules to follow. The
rules were substantially different.

Q. Early in the examination, the question was asked
you as to whether or not the convention, before 1944, re
pealed laws—has the convention ever had the right to re
peal laws?

A. Never has a right to repeal laws—has a right to
repeal its rules, but if it repealed a rule contrary to the
statute, the statute would still have to be complied with.

Q. The statute would govern?
A. Yes, sir.
Q. Look at rule 28 again that counsel was asking you

about. Is there any change as to time between the second
and third primaries, if it ’s necessary to have a second and
third primary?

A. Yes, sir, changed from two, as the statute and rule
provided, to four weeks.

Q. Look down there about the eighth line, it says the
second and third primary each three weeks successively
thereafter?

A. That’s the ’46 rules.
Q. The 1946 rules?
A. The 1942 was two; the 1944, four; the 1946 was

three.
Q. That’s another difference, isn’t it? Just one last

question, Mr. Baskin, as chairman of the party, you having
succeeded Mr. Thomas B. Pearce who died since this ac
tion was brought—is that correct?

A. Yes, sir.
Q. State whether or not the testimony you have given

as to the rules applies to the conduct of the party in Rich
land County?

A. It does.
Q. You say it does?
A. Yes, sir.
The Co u r t : Either side desire to put anything else

in?
Mr. M a r sh a l l : No, sir.
(The Court recessed for ten minutes.)

A ppendix 7 7

The Co u r t : N ow , gentlemen for the defense, you have
not consummated your argument. You may proceed.

Mr. B enet : It had been my purpose to discuss in the
beginning of my argument the difference between the 1946
rules and the statutes which were repealed. In view of the
testimony taken, and the questions asked by your Honor
and counsel on the other side and myself—

The Co u r t : I think Mr. Baskin has pointed those out
very fully.

Mr. B enet : One question I should have asked him, your
Honor, and I ’d like to call attention to it, in the rules of
1946 which have been repeatedly stated here, made a part
of our answer, that Rule 50, which is set out in that parallel
column which he did not read, begins with, Penalties for
Violations. Each and every person, whether candidate who
enters the primary or person who votes therein shall by
said act or acts submit himself or herself to the rules of
the party— I merely wanted to call that to your Honor’s
attention, and then to the penalty provisions under the
statute.

(Mr. Benet argued to the Court in behalf of the de
fendants.)

(Mr. Marshall argued to the Court in rebuttal in be
half of the plaintiff.)

The Court : I wish to express m y thanks to all of coun
sel, and also to Mr. Baskin, the witness, who enlightened
me considerably on certain things I wished to know.

There was some mention of a desire to file briefs. Any
and all counsel will have leave to file briefs within ten days
with me. I would like to have them sent to the Court at
Charleston which is my residence, and any matters that
you desire to reiterate there or any matters that have
arisen as a result of this hearing and argument today will
be considered by me. I ’ll give you to the 14th, or rather,
the 15th, of June. Well, gentlemen, I ’ll be glad to receive
such briefs from you. I have been greatly enlightened by
your arguments, and, as you see, I had to read the briefs
very hurriedly. You didn’t furnish them to me as early as
I would have liked to have had them. I shall enjoy read
ing your additional briefs, and hope to read the case and

78 Rice et al, A ppellants, v. Elmore, A ppellee

reach a decision as early as possible, which will certainly
be confined—the Court will now adjourn until tomorrow
morning at ten o ’clock.

I certify that the foregoing is
a correct transcript of my notes.

KATHERINE KLAUBER,
Official Reporter.

Civil Action No. 1702

OPINION

Plaintiff, George Elmore, is a duly and legally qualified
elector under the Constitution and laws of the United
States and of the State of South Carolina and is subject
to none of the disqualifications for voting thereunder. This
suit is brought by him to test the legality of the action of
the defendants in not permitting him and other qualified
Negro electors to vote in the Democratic Party’s Primary
held on August 13, 1946, in Richland County, which Pri
mary was held for the purpose of nominating candidates
on the Democratic ticket for the House of Representatives
of the United States, and for various State offices. The
rules of the Democratic Party restrict voting in its pri
maries to white persons. The plaintiff, George Elmore, is
a Negro. Some of the defendants are election managers of
Ward 9 precinct in Richland County, South Carolina, and
the others are members of the Richland County Democratic
Executive Committee which has general charge and super
vision of the conduct of the primaries and other functions
of the Democratic Party in Richland County. This action
is brought by the plaintiff on behalf of himself and others
similarly situated.

The action is based upon the alleged rights of the plain
tiff under the Constitution of the United States and par
ticularly under Article 1, Sections 2 and 4, and the Four
teenth, Fifteenth, and Seventeenth Amendments. The jur
isdiction of the court is invoked under Title 28 USCA, Sec
tion 41; Subdivision 1, Subdivision 11 and Subdivision 14,

A ppendix 79

and a declaratory judgment with injunction prayed for
under Title 28, USCA, Section 400. It is alleged that the
plaintiff and others in like situation have been deprived
of the civil rights guaranteed them under Title 8, USCA,
Section 31, which is as follows:

“ 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
subdivision, 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 contary notwith
standing. ’ ’
And Title 8, USCA, Section 43, which is as follows:

“ Civil action for deprivation of rights:
Every person who, under color of any statute, or

dinance, regulation, custom, or usage, of any State or
Territory, subjects, or causes to be subjected, any citi
zen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an ac
tion at law, suit in equity, or other proper proceeding
for redress.”

It is admitted and stipulated that the plaintiff George
Elmore and certain other Negroes who were qualified to
vote under the Constitution of the State of South Carolina
presented themselves on August 13, 1946, at the regular
polling place of Ward 9 Precinct in Richland County, South
Carolina, during the regular hours that the polling place
was open and requested ballots and permission to vote in
the Democratic Primary, and that these requests were re
fused on the ground that they were not enrolled because

80 R ice et al., A ppellants, v. Elmore, A ppellee

they were not white Democrats; and that this refusal by the
Primary Managers was in pursuance of the rules and in
structions of the Chairman of the Richland County Dem
ocratic Executive Committee and the members of such Com
mittee who were acting pursuant to the rules of the Demo
cratic Party of South Carolina then in force, particularly
because such rules limited membership to persons of the
white race.

Upon the hearing of the case it was decided that the
Court would first pass upon the question of a declaratory
judgment and injunction, and that the prayer for money
damages (alleged in the complaint to be $5,000.00) would
be deferred for future submission to a jury in case it was
determined that the plaintiff had stated and shown a cause
of action.

Under Title 28 U. S. C. A. Section 41, Subdivision 11,
the District Courts are given original jurisdiction of all
suits “ to enforce the right of citizens of the United States
to vote in the several states,” and the Federal Courts have
undoubted jurisdiction over the right to vote in a primary
provided it is determined to be an integral part of the elec
tion machinery of the State. United States v. Classic, 313
U. S., 299; Smith v. Allwright, 321 U. S., 649. On the ques
tion of jurisdiction, see also

Nixon v. Herndon, 273 U. S., 536;
Nixon v. Condon, 286 U. S., 73;
Lane v. Wilson, 307 U. S., 268;
Chapman v. King, 154 Fed. (2d), 460.

Of course there has never been any serious question
that the Constitution of the United States recognized the
right of the Federal Government to control General Elec
tions in which Federal Officers were chosen. However, it was
for many years a doubtful question as to whether the fed
eral jurisdiction and federal laws extended to primary elec
tions. The issue was squarely faced in the famous case of
Newberry v. U. S., 256 U. S., 232 where the Court had to de
termine whether legislation attempting to regulate pri
maries was constitutional. The Court was evenly divided,

A ppendix 81

four to four, on the question as to whether the federal gov
ernment could regulate primaries. But the Justices voted
five to four in declaring the act then under consideration
unconstitutional, it having been passed before the Seven
teenth Amendment was adopted. But even at so early a
date, four of the Justices in an opinion by Mr. Justice
Pitney, took the position that a primary election should not
be treated as a thing separate from the final election but
should be considered as so closely related to the final elec
tion that proper regulation is essential. The dissenting
opinion discusses the matter at some length, is enlighten
ing, and sounds as though it were enunciated by the present
Supreme Court in view of its recent decisions to which I
hereinafter advert.

Over the course of years, there has been a constant j[
flow of litigation relative to the right to vote in elections
as well as in primaries. This has been particularly true in
certain of the states wherein various restrictions were im
posed in attempts to impede the rights of Negroes to vote.
A number of cases which have been discussed at length and
cited in briefs submitted to me denied the right of the Fed
eral government to supervise primary elections even
though they were created and regulated by state statutes.
It might he interesting to follow and discuss many of these
but since the decisions in the Classic and Smith cases,
supra, these older cases have really become of interest only
from an historic standpoint. Perhaps the outstanding one
of these is Grovey v. Townsend, 295 U. S., 45. And under
the law as laid down by that case, confirming and supple
menting many other eases (which I deem unnecessary to
cite for reasons above stated) a state had the right to en
act laws governing primary elections and a political party j
operating thereunder might restrict the voters in the p r i- /
mary conducted by it according to racial distinctions. The:
Court there took the definite position that the privilege o f
membership in a party, with the right to vote for its nom)
inees, is different from the right to vote in a General
Election.

But the views of the Supreme Court of the Unitem,
States in regard to these matters has suffered a drastic?

82 Rice et al, A ppellants, v. E lmore, A ppellee

I and complete change. And so far as we are at present con-
S cerned with the law of the land, except fop an interest in
f prior views showing changes and development of the law,
| we need hardly look back of 1941 when the famous case

of United States v. Classic (313 U. S. 299) was decided, and
f a few years later in 1944 Smith v. Allwright (321 U. S.,
649). These two cases now completely control and govern

1 the matters under discussion.
In South Carolina for many years the Democratic

Party has conducted primary elections for the choice of
municipal, county, state and federal officers. It is a matter
of common knowledge that for a great many years the
Democratic Party has completely controlled the filling of
offices in the State of South Carolina. For the purpose of
this case and as shown by the stipulations, certain dates
are fixed, and it is agreed that since 1900 every Governor,
member of the General Assembly, United States Bepresen-
tative and United States Senator for the State of South
Carolina, elected by the people of this State in the General
Elections, was the nominee of the then existing Democratic
Party of South Carolina, and that during the past 25 years
the Democratic Party of South Carolina has been the only
political party in this State to hold State-wide primaries
for the nomination of candidates for Federal and State of
fices. The Constitution of South Carolina of 1895 recog
nized the primary as a part of the election machinery of
the State and authorized the General Assembly to enact
laws to govern these primaries. Article II, Section 10, is as
follows:

“ Primary elections.— The General Assembly shall
provide by law for the regulation of party primary
elections and punishing fraud at the same.”

Article II of the Constitution is entitled “ Bight of Suf
frage,” and the whole Article, consisting of 15 sections,
covers suffrage, including registration and elections, which
goes to show that the State recognized a primary as an
integral part of the elective process.

In accordance with the right given by the Constitu
tion, the General Assembly from time to time adopted,

A ppendix 83

modified, and amended the laws regulating primary elec
tions, and in 1915 a complete comprehensive revision of the
election laws, declaring and regulating the primary, was
adopted.

We may therefore say without fear of contradiction
that the Democratic Primary in South Carolina was regu
lated and controlled by direct State action and was an in
tegral part of the election laws of the State. Prior to the
decision in the Classic case, supra, there could be no doubt
that a Negro had no right to be admitted to the primary
elections or become a member of the Democratic Party in
this State. But the decision in the Classic case threw a
doubt on this. And in 1944 with the decision in Smith v.
Allwright, supra, the status was entirely changed, and then
instead of being even a doubtful matter, it was clearly evi
dent that the Democratic Party in South Carolina, as then
constituted and acting under the statutes enacted by its
State, no longer had the right to limit its members to whites
and to exclude Negfoes.

And this was clearly recognized by the officers and
those in charge of the Democratic Party, as well as State
and Federal officials, who were the same in many cases. As
a matter of fact, the then Governor of the State of South
Carolina, Olin D. Johnston (now United States Senator
from this State) issued a proclamation calling for an Ex
traordinary Session of the General Assembly of South
Carolina to convene on April 14, 1944. In that proclamation
(dated April 12, 1944) he stated one of the specific pur
poses of the session was for “ the purpose of safeguard
ing our elections, the repealing of all laws on the statute
books pertaining to Democratic Primary elections.” The
General Assembly convened and received a message from
the Governor in which he elaborated the purpose for which
the extraordinary session was called and urged that it be
limited “ to the consideration of matters pertaining to elec
tions and election laws. ’ ’ The Governor reviewed his former
recommendations and the action of the General Assembly
in 1943 in repealing certain primary election statutes (it
was evident that this action had been taken because of the

fears aroused by the Classic case, supra). The Governor
then pointed out that the United States Supreme Court
in a Texas decision (referring of course to Smith v. AlU
wright, supra) had reversed its former ruling “ so that it
now becomes absolutely necessay that Ave repeal all laAvs
pertaining to primaries in order to maintain Avhite suprem
acy in our Democratic Primaries in South Carolina.”
Among other things, the Governor also said:

“ I know that the white Democrats in South Caro
lina Avill rally behind you in this matter o f repealing all
prim ary laAvs from the statute hooks. I have always be
lieved in action and not m erely in words, especially
when the protection and the preservation o f morals
and decency in governm ent is involved. Now, is the
time fo r us to act.

“ I regret that this ruling by the United States
Supreme Court has forced this issue upon us, but we
must meet it like men. I further regret that certain
agitators within and without South Carolina are tak
ing advantage of this situation to create strife and dis
sension at the present time. These agitators are not
friends of either race, but they are creating strife and
dissension to further their own selfish gain.

“ H istory has taught us that we must keep our
white Dem ocratic prim aries pure and unadulterated so
that we m ight protect the Avelfare and homes o f all the
people o f our State.

“ Throughout my administration I have opposed
outside interference with the local government of this
State. It is not my purpose now to agitate the race
question, hut in the interest of good government and
for the protection of all the people of our State it is
necessary that we face this problem in a calm, delib
erate and statesmanlike manner.

“ The Attorney General’s Office, with the assist
ance of the Solicitors of this State, have been working
diligently for several days upon the matter of finding
all primary laws upon the statute books that must be

84 R ice et al, A ppellants, v. E lmore, A ppellee

A ppendix 85

repealed so that ive might have a free, white Demo
cratic primary which can nominate its candidates free
and untrammeled without legislative sanction.

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

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

Thereafter, at this extraordinary session, lasting from
April 14 to April 20, 1944, the General Assembly repealed
a large number of statutes (approximately 150) all re
lating to State regulation of primaries and their organiza
tion and government or to elections held thereunder. The
work seems to have been completely and thoroughly done
insofar as I am informed. Every trace of statutory regula
tion of party primaries was expunged from the statutes of
this State. The General Assembly also adopted appropriate
legislation looking to a repeal of that section of the Con
stitution providing for laws governing primaries (herein
before referred to), and at the next General Election this
portion of the Constitution was repealed and is no longer
in effect. Thus, because of the Smith v. Allwright decision,
the State of South Carolina eliminated from its Constitu
tion and statutes all regulation of political parties and
primary elections, and there is now no statutory control
either civil or criminal.

And the contention of the defendants in this case is
that the State having thus completely renounced control
of political parties and primaries held thereunder, these
party primaries are private matters, subject to the de
terminations and whims of its members, and that they may
include or exclude members as they desire, according to
racial or any other tests.

On the other hand, the contention of the plaintiff is
that the Democratic Party subsequent to 1944, and today,
is the same party and organization as it was before; that
it carries on and performs the function of choosing Fed
eral, State and other officers, and is the real and only or
ganization where the determination of selection of officers
can be had; and that it is the only place where a citizen
can exercise his right of suffrage where it will be of any
use or moment. In other words, the plaintiff and those
whom he represents, thas is to say, Negroes who are quali
fied electors and citizens of this State, take the position that
officers of the State and United States are chosen in South
Carolina in the Democratic Primary, and that the General
Election is a mere formality, following the primary choices.

The stipulations in this case show that in the Demo
cratic Primary of August 1946 (the one in which plaintiff
was denied the right to vote) there were cast for the office
of Governor of the State 290,223 votes, whereas in the Gen
eral Election in November of that year the votes for that
same office amounted to only 26,326. It is further shown that
since 1900, every Governor, and all members of the General
Assembly, and also all United States Representatives and
United States Senators, elected by the people of South Car
olina in the General Elections, were the nominees of the
then existing Democratic Party of the State; and that dur
ing the past 25 years the Democratic Party is the only po
litical party in this State which has held state-wide pri
maries for the nomination of candidates for Federal and
State offices.

As heretofore stated, a change in the attitude of the
courts in regard to the applicability of federal law to pri
maries came about in 1941, and the famous case of United
States v. Classic, 313 U. S. 299, was decided. The Court
spoke through the able and comprehensive opinion of Mr.
Justice (later Chief Justice) Stone. In that case, which
arose in Louisiana, an indictment was returned against the
Commissioners of Elections conducting a primary election
(under the Louisiana law) to nominate a candidate of the
Democratic Party for Representative in Congress. They

86 R ice et al., A ppellants, v. Elmore, A ppellee

A ppendix 87

were charged with fraud in the conduct of the election and
the question in issue was whether the federal statutes ap
plied to the defendants’ actions in interferring with the
right of qualified voters to cast their ballots and the right
of candidates to have their votes properly counted. The Su
preme Court of the United States in unmistakable language
declared that the primary election as conducted in the State
of Louisiana was an integral part of the election machinery
and that the Constitution and laws of the United States cov
ered the conduct of the same where it was used to choose a
congressman. Mr. Justice Stone says (pages 318 and 319):

“ Long before the adoption of the Constitution the
form and mode of that expression had changed from
time to time. There is no historical warrant for suppos
ing that the framers were under the illusion that the
method of effecting the choice of the electors would
never change or that, if it did, the change was for that
reason to be permitted to defeat the right of the people
to choose representatives for Congress which the Con
stitution had guaranteed. The right to participate in
the choice of representatives 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 suc
cessful candidate 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 pro
tected by Article 1, § 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 primary which invariably, sometimes
or never determines the ultimate choice of the repre
sentative. 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
representative is in fact controlled by the primary be
cause, as is alleged in the indictment, the choice of can

didates at the Democratic primary determines the
choice of the elected representative. Moreover, we can
not close our eyes to the fact, already mentioned, 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 com
mented upon by the concurring Justices in Newberry
v. United States, supra, 263-269, 285, 287.

“ Unless the constitutional protection of the integ
rity of “ elections” extends to primary elections, Con
gress is left powerless to effect the constitutional pur
pose, and the popular choice of representatives is
stripped of its constitutional protection save only as
Congress, by taking over the control of state elections,
may exclude from them the influence of the state pri
maries.”
Particular attention should be called to that part of

the opinion above quoted where the Court says: “ Where
the state law has made the primary an integral part of the
procedure of choice, or where in fact the primary effective
ly 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, § 2.” (Emphasis added.) So
it will be seen that the Court presents an alternative, name
ly, where by state law the primary is declared a part of
the procedure, or where it amounts to the same. The posi
tion of the plaintiff in this case is based squarely upon that
language.

In 1944 the Supreme Court of the United States de
cided the equally famous case of Smith v. Allwright, 321
U. S. 649. That case arose in Texas. Smith, a Negro cit
izen of Harris County, Texas, brought a suit for damages
against Allwright and others who were election judges,
the claim being based upon the refusal of these officials to

88 Rice et al., A ppellants, v. Elmore, A ppellee

A ppendix 89

give Smith a ballot or permit him to cast one at the primary
for the nomination of a Democratic candidate for the
United States Senate and House of Representatives and
for various state offices. The refusal is alleged to have been
solely because of the race and color of the proposed voter.
The action is brought on the ground of violation of Title
8, IJSCA, Sections 31 and 43, in that the petitioner who de
prived of the rights secured to him by Article I, Sections
2 and 4 of the Constitution of the United States and of
the Fourteenth, Fifteenth and Seventeenth Amendments
thereof. The District Court denied the relief sought, bas
ing its decision upon the authority of Grovey v. Townsend,
supra. The Supreme Court agreed to review the matter up
on a petition for certiorari to resolve the claimed inconsist
ency between the decision in the Grovey case and the Clas
sic case, supra. The decision in the Smith case followed
completely the argument and decision in the Classic case,
and especially repudiated and directly overruled the Grovey
case.

The Smith case, following the Classic case, holds in ef
fect that a primary is an integral part of the election ma
chinery. It is true that in Texas the primary was covered
by statutes. Nevertheless, the Court holds that a federal
court must for itself examine into the facts. The opinion
by Mr. Justice Reed (at page 662) says:

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

and again at page 664:
“ The United States is a constitutional democracy.

Its organic law grants to all citizens a right to partici

pate in the choice of elected officials without restriction
by any State because of race. This grant to the people
of the opportunity for choice is not to be nullified by a
State through casting its electoral process in a form
which permits a private organization to practice racial
discrimination in the election. Constitutional rights
would be of little value if they could be thus indirectly
denied. Lane v. Wilson, 307 U. S. 268, 275.”
Now it is clear from the consideration of the two fore

going leading cases that the law of our land has been ma
terially changed since the early decisions that gave to the
state a free hand in organization, governing and using pri
mary elections. A primary conducted in accordance with
state law is distinctly a part of the election machinery and
in such a primary it is a violation of the constitutional and
statutory rights of any cpialified elector to exclude him from
voting by reason of race or color.

Before further considering the facts in the case at bar,
it is proper to consider a very recent case particularly re
lied upon by the defendants, which is that of Chapman v.
King, decided by the Circuit Court of Appeals for the Fifth
Circuit in March 1946, and reported in 154 Fed. 2d 460.

Portions of the opinion in that case are closely in line
with the arguments submitted by defendants. But in order
to understand the full implication and meaning, it is proper
to review the entire case from its inception. King, a Negro,
brought suit against Chapman and others, members of the
Democratic Executive Committee of Muscogee County,
Georgia, to recover damages for alleged deprivation of the
right to vote in a Democratic Primary. The case was
heard by the District Court for the Middle District of
Georgia, and the District Judge filed full and complete
findings of fact, conclusions of law, and opinion. See King
v. Chapman, 62 Fed. Supp., 639. That case was a suit
brought under Title 8, USCA, Sections 31 and 43, seeking
damages for deprivation of civil rights guaranteed by the
Constitution, especially the Fifteenth Amendment. The
Georgia Primary statutes restrict voters therein to whites.
The District Court says (Page 650):

90 R ice et al., A ppellants, v. Elmore, A ppellee

A ppendix 91

“ The Democratic Party is the dominant and con
trolling political party in Georgia. No other party has
held a statewide primary during the past 40 years.
Since 1900 Democratic nominees for United States
Senator, members of the House of Representatives,
Governor, and other Statehouse officers, nominated at
primaries, have been elected in the ensuing general
election. The nominees at the 1944 Primary were so
elected.

“ So, we conclude from this long established prac
tice that the primary is in fact an integral part of the
electoral process of this state. It may fairly be said that
it is the hub of the process. When the Democratic Party
holds a primary in this state, the system is substanti
ally the same, in substance and objective, as the Texas
and Louisiana systems.

“ As I understand the holding and the meaning of
Smith v. Allwright, it is controlling here.

“ The defendants acting as the duly constituted au
thorities of the Democratic Party, in refusing to permit
plaintiff to vote in the Primary of July 4, 1944, solely
on account of his race and color, deprived the plaintiff
of a right secured to him by the Constitution and laws
of the United States, and was in violation of the Four
teenth, Fifteenth and Seventeenth Amendments.

“ Plaintiff has a cause of action and is entitled to
recover. Appropriate orders will be entered.”
The Court held that the plaintiff was entitled to dam

ages. The case was appealed to the Circuit Court of Ap
peals. The decision of the District Court was affirmed in the
following language (Page 464):

sions enforced by the State and when these exclusions
are prohibited by the Fifteenth Amendment because
based on race or color, the persons making them effec
tive violate under color of State law a right secured by
the Constitution and laws of the United States within
the meaning of the statute which is here sued on.”

I The defendants in the case at bar quote some of the
/language of the opinion of the Circuit Court of Appeals
I which seems to agree with their views. All of this, however,
j is obiter dicta since the appellate court affirms the decision
I of the District Judge, whose decision is squarely based up

on the language hereinabove quoted. The Circuit Court of
Appeals having affirmed the District Court, the defendant
in the original suit filed a petition for writ of certiorari to
the United States Supreme Court but this was denied (327
U. S. 800). Argument has been made that the denial of cer
tiorari approves all of the language of the Circuit Court of
Appeals, but of course this argument is without basis. It
was the defendant who petitioned the Supreme Court. He
lost the case in the District Court, lost it in the Circuit
Court of Appeals, and the Supreme Court refused to inter
fere with either decision. Therefore the denial of certiorari
may be considered as an affirmance of the District Court s
views and decree. Of course in passing upon a petition of
certiorari, the Supreme Court looks to decision and the re
sult and not to dicta which do not sustain the final result.
Moreover,

“ The denial of a writ of certiorari imports no ex
pression of opinion upon the merits of the case, as the
bar has been told many times.” United States v. Car

92 R ice et al., A ppellants, v. E lmore, A ppellee

ver, 260 U. S. 482-490; Atlantic Coast Line B. Co. v.
Powe, 283 U. S. 401-403.

It has been suggested that the action of the State in
repealing all of the suffrage statutes amounted to a depri
vation of the right of suffrage. The doctrine is somewhat
novel but interesting. The argument is that under the law
of South Carolina, as it stood before April 1944 and as
construed by the Supreme Court decisions, Negroes had a

A ppendix 93

right to vote in the primary as then constituted. And, there
fore, when the legislature took action, although this action
was in the form of repeal, it deprived these citizens of a
right which they then had, and that the act of the legisla
ture, while negative in form, was really positive. It has also
been suggested that inaction by a State may amount to de
nial of equal protection. See Catlette v. U. S., 132 Fed. 2d
902, 907 (4th CCA Opinion by Dobie, C. J., citing McCabe
v. Atchison T. & S. F. By. Co., 235 U. S. 151; Gaines v. Can
ada, 305 U. S. 337.) However, I think it unnecessary to
elaborate this further as this opinion will rest upon entirely
different grounds.

And so this case must be determined by examining the
status of the present Democratic Primary in the State of
South Carolina. The foregoing statement of the legal effect
of the Classic and Smith decisions was clearly recognized
by Governor Johnston when he called the extraordinary
session of the South Carolina General Assembly in 1944,
and we are therefore forced to examine what has happened
since and the result of the abrogation of those statutes and
as to whether the Democratic Party of South Carolina has
sloughed its official skin and become a private organization.
At the hearing of the cause, counsel filed stipulations of
agreed facts, but concluding the more light should be shed
upon the situation, so that all facts would be available to
this Court and the matter might be decided for all time, the
Trial Judge, of his own motion, called a witness to the stand
to testify more fully as to the workings of the Democratic
Party, its primaries and machinery. The Chairman of the
State Democratic Executive Committee took the stand and
testified quite frankly and freely.

From the stipulations and the oral testimony and from
examination of the repealed statutes and of the rules of the
State Democratic Party which were put in evidence, we
may briefly summarize the organization and methods of the
Democratic Party in this State, both before and after 1944.
Prior to 1944, as shown by the statutes set forth in the Code
of South Carolina and from an examination of the rules of
the party published in 1942, the general setup, organization

94 R ice et al., A ppellants, v. Elmore, A ppellee

and procedure of the Party may be generally stated as fol
lows: In the year 1942 (a year wherein certain primaries
and general elections were to be held) organizations known
as clubs in various wards (in cities), voting precincts, or
other subdivisions, met at a time and places designated by
the State organization. The members of these clubs were
the persons who had enrolled to vote in the primary held
two years before and whose names were on the books of the
clubs, which were the voting lists used at such preceding
primary. At these club meetings, officers were elected, in
cluding a County Executive Committeeman from each club
and also delegates to a County Convention. Shortly there
after a County Convention was held in each County in the
State, where the delegates elected its Convention officers,
including a member of the State Executive Committee and
delegates to the State Convention. And shortly thereafter
a State Convention was held, at which these delegates from
the County organizations assembled, elected their presid
ing officers and a Chairman of the State Executive Com
mittee (composed of one committeeman from each County),
and made rules and regulations for the conduct of the Party
and of primaries. These rules and regulations were in con
formity with the statute law of the State. The State Execu
tive Committee was the governing body and the Chairman
its chief official. The Convention repealed all previous lules
and regulations and adopted a new set, these being how
ever substantially the same as before with some slight
amendments and changes, and of course new provisions for
dates of primaries and other details.

A ppendix 95

detailed changes, the one side attempting to show that the
changes were of form and not of matter, and the other at
tempting to point out material changes. One of the main
items of change was to strike out the word “ election”
throughout the rules. It was undoubtedly the intention of
the parties in charge of revamping the Democratic Party
to eliminate the word “ election” wherever it occurred in
the rules, substituting instead the word “ primary” or
“ nominating primary.” In 1944 the State Convention also
elected delegates to the National Democratic Convention
as it had always done in years of Presidential Elections.

In 1946 substantially the same procedure was used in
the organization of the Democratic Party and another set
of rules adopted which were substantially the same as the
1944 rules, excepting that the voting age was lowered to 18
and party officials were allowed the option of using voting
machines, and the rules relative to absentee voting were
simplified (absentee voting had heretofore been controlled
by certain statutes repealed in 1944. See Code of South Car
olina, Sections 2406-2416). It is pointed out that the word
“ election,” although claimed to have been entirely elimi
nated, was still used in Rules 25, 27, 32 and 48.

All of these matters are heavily stressed in arguments
and in briefs submitted to me. I find them interesting, per
haps significant, hut hardly controlling. The intention of
the General Assembly and of the parties in charge of the
Democratic Party in this State to eliminate “ election”
from the rules seems to have been clear and distinct, and
it is fair to assume that leaving the word “ election” in a
few of the rules was a mere oversight. On the other hand,
the changing of the voting age and allowing voting ma
chines to be installed were minor matters of procedure and
cannot be considered to materially affect the question.

And so we are faced with the final decision as to
whether or not the present Democratic Party of South Car
olina, because it is no longer governed by State statutes, is
a private organization and (as was said in argument) must
be treated as a private, business or social club, with which

the State and National governments have no concern; or
is it after all the determining body in the choice of National
and State officers in South Carolina, or to use the old
homely illustration, is it the same horse although of a some
what different color?

And so it becomes necessary to consider the real ef
fect of the repeal of the primary statutes of 1944. It is con
ceded that there is now no law in South Carolina, in its
Constitution or on its statute books, governing primaries;
and the defendants take the position that the United States
Constitution and the laws enacted thereunder apply only
to the acts of the State as represented by its legal enact
ments. But when we compare the present status of the
Democratic Primary in this State, it is materially differ
ent from its status prior to 1944? As has been said, it is
common knowledge that during the long years following
the war between the states and the adoption of the Thir
teenth, Fourteenth and Fifteenth Amendments to the Con
stitution of the United States there have been repeated at
tempts to restrict voting privileges in many parts of this
country. The constitutional amendments following the
bloody conflict of the 1860s came upon and to a people to
tally unprepared for the change in the status and relation
ship of the white and black races. The potential voters in
the former slave holding states were about doubled by the
new federal laws and every effort was made to prevent a
deluge of untrained, unlettered, and unprepared citizens
from taking over control of the state government. That
these efforts and the methods adopted were both born of
necessity may be argued with show of reason. But many
years and several generations have passed since the time
such necessity arose and existed. Constitutions, Statutes
and litigation from time to time have clarified and modern
ized the matter of suffrage in these United States.

It may be and in fact is a fascinating study to deter
mine whether a universal suffrage is the best method of
governing a country. In the golden days of Greece, there
were many slaves. The Roman Empire had many opinions
and changes as to granting suffrage to people of other and

96 R ice et at, A ppellants, v. Elmore, A ppellee

A p p e n d ix 97

conquered lands. The idea of free voting and suffrage prac
tically disappeared in the Middle Ages, and even today in
many countries the right to cast a ballot is extremely lim
ited and in some only the members of the one party con
trolling the country, even though that party be made up of
a minority of its inhabitants, may cast a ballot. But in these
United States the time has passed for a discussion of
whether we should have universal suffrage, irrespective of
our views as to its desirability. The Constitution and laws
of the United States provide for it and forbid discrimina
tion because of race or creed. A free ballot to be freely ex
ercised by all the citizens is the established American way
of government. In the argument in this case, frequent ref
erence was made to the desirability or undesirability of
whites and blacks voting in the same primary, and it was
suggested that the Negroes have a separate primary from
the whites. It was further suggested that the parties in
South Carolina are substantially the same as private clubs;
and that a private club has a right to choose its member
ship and the members to determine with whom they wish
to associate. Of course that is true of any private club or
private business or association, but private clubs and busi
ness organizations do not vote and elect a President of the
United States, and the Senators and members of the House
of Representatives of our national congress; and under the
law of our land, all citizens are entitled to a voice in such
selections. It has been stated, and I believe it is a fact, that
South Carolina is the only State which now conducts a pri
mary election solely for whites. Since the Classic case Ne
groes are voting in the Louisiana Primaries. Since Smith
v. Allwright, Negroes are voting in Texas, and even in
Georgia since Chapman v. King Negroes vote in the Demo
cratic Primaries. I cannot see where the skies will fall if
South Carolina is put in the same class with these and
other states.

It is true that the General Assembly of the State of
South Carolina repealed all laws relating to and governing
primaries, and the Democratic Party in this State is not
under statutory control, but to say that there is any ma

98 R ic e e t a l., A p p e l l a n t s , v . E l m o r e , A p p e l l e e

terial difference in the governance of the Democratic Party-
in this State prior, and subsequent, to 1944 is pure sophis
try. The same membership was there before and after, the
same method of organization of club meetings, of delegates
to County Conventions, delegates to State Conventions, ar
ranging for enrollment, preparation of ballots, and all the
other details incident to a primary election. Of course there
were some changes from time to time to meet changing con
ditions. There has always been and probably always will
be necessity for some amendments and modifications. An
examination of the primary statutes running back through
the years will disclose amendments and minor changes in
them also from time to time. The lowering of the voting
age and the permission to use voting machines were merely
incidents in the conduct of the primaries. To say that this
is not the action of the State is evading the facts. Title 8,
USCA, Section 31 refers to any “ constitution, law, custom
usage or regulation of any state.” The method used in the
present Democratic Party of South Carolina is distinctly
the same “ custom and usage” that has been in use long
before 1944. As a matter of fact, it is a continuing and
continuous process and has been so for many years, and
the repeal of the statutes heretofore referred to makes
practically no difference whatsoever in its life and growth.
When the General Assembly, answering the call of Gov
ernor Johnston, met in extraordinary session, it was wholly
and solely for the purpose of preventing the Negro from
gaining a right to vote in the primaries as granted under
the doctrine of the Smith v. Allwright case. There was no
concealment as to the reason for this call. And although
the General Assembly had repealed all of the laws on the
subject, the State Democratic Party, composed of the same
persons who voted in the primaries two years before, had
its meetings in its same clubs in the same precincts, had
the same land of County Conventions and delegates, had
the same kind of State Conventions and delegates, and
adopted rules that were almost verbatim to the statutes
that had been repealed. While the General Assembly re
pealed the laws governing the primaries, the people of the
State assembled in convention and enacted practically the

A p p e n d ix 99

same rules. These may not be laws or statutes in name but
they certainly amount to “ custom, usage or regulation”
and are the acts of the people. There was no evasion in the
purpose of the Governor and members of the General As
sembly and why should there now be evasion of the issue
here presented? For too many years the people of this
Country, and perhaps particularly of this State, have
evaded realistic issues. In these days when this Nation and
the Nations of the world are forced to face facts in a real
istic manner, and when this conutry is taking the lead in
maintaining the democratic process and attempting to show
to the world that the American government and the Ameri
can way of life is the fairest and best that has yet been
suggested, it is time for us to take stock of our internal
affairs.

“ Our case for democracy should be as strong as
we can make it. It should rest on practical evidence
that we have been able to put our own house in order.

“ For these compelling reasons, we can no longer
afford the luxury of a leisurely attack upon prejudice
and discrimination. There is much that state and local
governments can do in providing positive safeguards
for civil rights. But we cannot, any longer, await the
growth of a will to action in the slowest state or the
most backward community.

“ Our National Government must show the way.”

The foregoing words were spoken by the leader of the
Democratic Party, President Truman, in an address de
livered on June 29, 1947.

It is time for South Carolina to rejoin the union. It is
time to fall in step with the other states and to adopt the
American way of conducting elections.

I am of the opinion that the present Democratic Party
in South Carolina is acting for and on behalf of the people
of South Carolina; and that the Primary held by it is the
only practical place where one can express a choice in se
lecting federal and other officials. Racial distinctions can-

100 R ice et at, A ppellants, v. Elmore, A ppellee

not exist in the machinery that selects the officers and law
makers of the United States; and all citizens of this State
and Country are entitled to cast a free and untrammelled
ballot in our elections, and if the only material and real
istic elections are clothed with the name “ primary” , they
are equally entitled to vote there.

The prayer of the complaint for a declaratory judg
ment will therefore be granted by which it will be adjudged
that the plaintiff and others similarly situated are entitled
to be enrolled and to vote in the primaries conducted by the
Democratic Party of South Carolina, and the defendants
and their successors in office will be enjoined from exclud
ing qualified voters from enrollment and casting ballots by
reason of their not being persons of the white race. Ap
propriate findings of fact and conclusions of law and an
order carrying the foregoing into effect will be entered.

/ s / J. W ATIES WARING
United States District Judge

Charleston, S. C.,
July 12,1947.
A TRUE COPY. ATTEST.
ERNEST L. ALLEN

Clerk of U. S. District Court
East. Dist. So. Carolina
(Filed July 12,1947, Ernest L. Allen, C. D. C. U. S. E.

D. S. C.)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

FINDINGS OF FACT

Civil Action No. 1702
1. All parties to this action, both plaintiff and defend

ants, are citizens of the United States and of the State of
South Carolina and are resident and domiciled in Richland
County in said State.

A ppendix 101

2. The plaintiff at all times material to this action was
and is a duly and legally qualified elector under the Consti
tution and laws of the State of South Carolina, and sub
ject to none of the disqualifications provided for voting un
der the Constitution and laws of the State of South Caro
lina.

3. Defendants Clay Rice, Mrs. A. B. Parker, Leone
Bennett, Mrs. Sam Carter, Jr., Charles Stork, Mrs. H. E.
Snipes, Mrs. Earl Lightsey and Mrs. E. L. Koon, at all
times material to this action, are and were managers of
the Democratic Primary in Ward 9 Precinct, Richland
County, South Carolina, and the other defendants were and
are members of the Richland County Democratic Execu
tive Committee.

4. The Richland County Democratic Executive Com
mittee represents the local county unit of the Democratic
Party of South Carolina.

5. On August 13, 1946, there was held by the Demo
cratic Party of South Carolina in the State of South Caro
lina and in Richland County a primary for the nomination
of Democratic nominees for the House of Representatives
of the United States, for the Governor of South Carolina,
and various other State and County offices, and on that day
the plaintiff and a number of other Negroes, all qualified
electors under the Constitution of the State of South Caro
lina, presented themselves at the regular polling place of
Ward 9 Precinct of Richland County, South Carolina, dur
ing the regular hours that the polling place was open and
requested ballots and permission to vote in the said pri
mary, but the managers refused to permit them to vote be
cause they were not white Democrats and were not duly
enrolled, and in this refusal the managers were acting pur
suant to the rules and regulations of the Democratic Party
of South Carolina and the instructions of the Chairman and
members of the Richland County Democratic Executive
Committee.

6. Prior to 1943 primaries were held in South Carolina
by the Democratic Party of that State in conformity with

102 R ice et at, A ppellants, v. Elmore, A ppellee

the statutes of the State (enacted under authority of Ar
ticle II, Section 10 of the Constitution of the State) and of
the rules of the said Party adopted at State Conventions
held every two years.

7. A number of the statewide statutes regulating the
primaries of political parties in South Carolina were re
pealed at the 1943 Session of the General Assembly of
South Carolina, effective June 1, 1944. On April 20, 1944,
the General Assembly of South Carolina passed approxi
mately 150 acts repealing all existing statutes which con
tained any reference directly or indirectly to primary elec
tions within the State, including an act calling for the re
peal of Secion 10 of Article II of the Constitution of South
Carolina (1895), the only Constitutional provision mention
ing primary elections, and set in motion the machinery to
repeal that provision. Subsequently, and on February 14,
1945, the Constitution of South Carolina was so amended
by Ratification by the General Assembly of South Carolina
of said Constitutional Amendment.

8. The 1944 Special Session of the General Assembly
of South Carolina was called by the Governor for the spe
cific purpose of repealing all statutes relating to primary
elections in order to allow the Democratic Party of this
State to continue to limit its membership to whites.

9. The 1944 Convention of the Democratic Party of
South Carolina, following the same procedure as in past
general election years, on May 17, 1944, repealed the old
rules and adopted new rules governing the party.

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

11. The 1946 rules extended the age limit to all white
Democrats over 18 years of age, and added some other
minor changes but were substantially the same as those of
1944.

A ppendix 103

12. The general method of operating the Democratic
Party of South Carolina such as election of delegates to
County and State Conventions, election of officers, execu
tive committeemen, and holding of County and State Con
ventions has been in the same general manner since April,
1944, as before that time.

13. There has been no material change since April,
1944, in the manner in which primary elections have been
conducted in South Carolina from the manner in which
they were conducted prior to April, 1944.

14. During the past 25 years the Democratic Party of
South Carolina has been the only political party in South
Carolina which has held state-wide primaries for nomina
tion of candidates for Federal and State offices.

15. Although the officers of the Democratic Party of
South Carolina vary from year to year, the membership
remains essentially the same.

16. The Democratic Party of South Carolina has al
ways restricted its membership and eligibility to vote in
primaries to white persons.

17. In each general election year, the Democratic Party
of South Carolina repeals all existing rules and adopts new
rules for the conduct of the party and primaries for the
ensuing years.

18. All primaries in South Carolina prior to and sub
sequent to April, 1944, have been conducted in conformity
to the rules promulgated by the Democratic Party of South
Carolina in each successive general election year.

19. There is no General Election ballot in South Caro
lina. The only printed ballots available in General Elections
in South Carolina are ballots prepared by the political par
ties giving only the names of their respective candidates.

20. Since 1900 every Governor, member of the Gen
eral Assembly, United States Representative, and United
States Senator of the State of South Carolina elected by
the people of South Carolina in the General Elections was

a nominee of the then existing Democratic Party of South
Carolina.

21. In 1946 for the office of Governor 290,223 votes
were cast in the first Democratic Primary held in August;
253,589 votes were cast in the second primary held on Sep
tember 3, 1946; and only 26,326 votes were cast in the Gen
eral Election for the office of Governor.

CONCLUSIONS OF LAW
1. This court has jurisdiction of this case under the

United States Constitution, Article I, Secions 2 and 4, and
the Fourteenth and Fifteenth Amendments; and also under
Title 8, USCA, Section 31 and Section 43; and also Title
28, USCA, Section 41, Subdivisions 1, 11 and 14; and also
Title 28, USCA, Section 400.

2. In the election machinery of the State of South Car
olina, the primary is an integral part of the procedure of
choice of elected officials of South Carolina, including
United States Senators and Representatives, and the Dem
ocratic Primary of South Carolina effectively controls the
choice of these elected officials of South Carolina.

3. The Democratic Primary in South Carolina is the
only election at which a qualified elector can make a mean
ingful choice of elected officials within the meaning of the
United States Constitution.

4. The Democratic Primary of South Carolina is sub
ject to the provisions of Article I, Sections 2 and 4 of the
United States Constitution.

5. The defendants in conducting the Democratic Pri
mary of 1946 were performing an essential governmental
function of the State of South Carolina and in doing so were
subject to the provisions of the Fourteenth and Fifteenth
Amendments to the United States Constitution.

6. There is an actual controversy between the parties
and pursuant to Title 28, USCA, Section 400 it is hereby
declared and adjudged that the policy, custom and usage

104 Rice et al., A ppellants, v. Elmore, A ppellee

A ppendix 105

by which qualified Negro electors are denied the right to
vote in Democratic Primary elections in South Carolina for
United States Senators and United States Representatives
is in violation of Article I, Sections 2 and 4 of the United
States Constitution, and that said policy, custom and usage
is likewise in violation of the Fourteenth and Fifteenth
Amendments to the United States Constitution.

7. The plaintiff is entitled to a permanent injunction
forever restraining the defendants and their successors
from maintaining the policy, custom and usage of prevent
ing qualified Negro electors from voting in primary elec
tions for United States Senators and United States Rep
resentatives.

8. The plaintiff is entitled to a trial by a jury of the
question of what damages he has suffered.

J. WATTES WARING,
United States District Judge.

Charleston, S. C.,
July 12, 1947.
A TRUE COPY. ATTEST.
ERNEST L. ALLEN,

Clerk of U. S. District Court,
Eastern District, South Carolina.

(Filed July 12, 1947, Ernest L. Allen,.)

Civil Action No. 1702

ORDER
In accordance with the opinion, findings of fact and

conclusions of law filed in the above-entitled case, it is

ORDERED
1. That the plaintiff, George Elmore, and others sim

ilarly situated, are hereby declared to be duly qualified
electors of the State of South Carolina and entitled to vote
in the Democratic Primaries as conducted by the Demo

106 R ice et al., A ppellants, v. Elmore, A ppellee

cratic Party of the State of South Carolina; and the pol
icy, custom and usage of the defendants in denying plain
tiff and other qualified Negro electors the right to vote in
Democratic Primary elections in South Carolina solely on
account of their race or color is unconstitutional as a vio
lation of Article I, Sections 2 and 4 of the Constitution of
the United States and of the Fourteenth and Fifteenth
Amendments thereof.

2. That the defendants, and each of them, and their re
spective successors in office, are permanently restrained
and enjoined from denying qualified Negro electors the
right to vote in Democratic Primary elections in South Car
olina solely because of race or color.

This Court has not passed upon the demand of the
plaintiff for damages and the plaintiff may within a rea
sonable time apply for a trial and hearing on that subject
if he be so advised.

/ s / J. W ATIES WARING,
United States District Judge.

Charleston, S. C.,
July 12, 1947.
A TRUE COPY. ATTEST.
ERNEST L. ALLEN,

Clerk of U. S. District Court,
Eastern District, South Carolina.
(Filed July 12, 1947, Ernest L. Allen, C. D. C. U. S. E.

D. S. C.)

PORTION OF DESIGNATION OF RECORD DATED
AUGUST 15, 1947, CONTAINING “ POINTS”

YOU WILL TAKE NOTICE that for the convenience
of all parties concerned, defendants-appellants state below
a Statement of Points, with the reservation, however, that
in view of the fact that appellants are proposing to incor
porate a complete record of all proceedings and evidence
in the action as and for the record on appeal, no such state
ment of points is actually required under the existing rules

A ppendix 107

of court and appellants expressly reserve the right to raise
any other additional points which may occur or appear to
them to be desirable in the course of the preparation of the
argument or at the hearing on the appeal:

1.
The Court erred in failing to sustain defendant’s mo

tion to dismiss the Complaint for lack of jurisdiction, in
asmuch as it appeared upon the face of the Complaint that
no constitutional rights of the plaintiff were involved.

The Court erred in assuming jurisdiction of this cause
and undertaking to grant the relief prayed for for the rea
son that it appeared from all the evidence taken in the cause
that no constitutional rights of the plaintiff were involved
and hence the Court was without jurisdiction of the sub
ject matter of this action.

3.
The Court erred in failing to sustain defendants’ mo

tion to dismiss the Complaint for failure to state facts suf
ficient to constitute a cause of action for the reason that it
appeared upon the face of the Complaint that the plaintiff
was not entitled to the relief demanded.

4.
The Court erred in failing to find the Democratic Party

of South Caroina was, at the time complained of by the
plaintiff, a private, voluntary association, wholly unregu
lated by statute and hence fully authorized to fix its own
rules for membership without violating any constitutional
rights of the plaintiff.

5.
The Court erred in failing to find as a matter of fact

that the Democratic party of South Carolina, at the times
complained of, was a private, voluntary association ante
dating any statutory regulation and that upon the repeal
in 1943 and 1944 of the statutes regulating said association,
the said party resumed its status as a private, voluntary as
sociation, with full power to fix its rules of membership
without violating any constitutional rights.

108 R ice et al., A ppellants, v. Elmore, A ppellee

6.
The Court erred in holding that the Democratic party

of South Carolina was an agency of the State of South Car
olina, it being submitted that said holding was wholly un
supported by any proper evidence.

7.
The Court erred in holding that the policy, custom and

usage by the defendants in denying qualified Negro electors
the right to vote in Democratic Primaries in South Carolina
solely on account of race or color was unconstitutional as
a violation of Article I, Sections 2 and 4 of the United
States Constitution and of the Fourteenth and Fifteenth
Amendments.

8.
The Court erred in permanently restraining and en

joining the defendants from denying qualified Negro elec
tors the right to vote in Democratic Primary elections in
South Carolina solely because of race or color.

9.
The Court erred in finding and deciding that there has

been no material change since April, 1944, in the manner in
which primary elections have been conducted in South Car
olina from the manner in which they were conducted prior
to April, 1944.

10.
,The Court erred in failing to find that there were num

erous substantial differences in the rules of the Democratic
Party after the repealing statutes of 1944 as compared with
the rules and statutes governing said party previous to
such repeal.

11.
The Court erred in holding that in the election ma

chinery of South Carolina, the primary is an integral part
of the procedure of choice of electing officials of South Car
olina, including United States Senators and Representa
tives and that the Democratic primary of South Carolina
effectively controls the choice of these elected officials of
South Carolina.

A ppendix 109

12.
The Court erred in holding that the Democratic Pri

mary in South Carolina is the only election at which a qual
ified elector can make a meaningful choice of elected officials
within the meaning of the United States Constitution.

13.
The Court erred in failing to hold that there was no

action on the part of the State of South Carolina in deny
ing the plaintiff the right to vote in the Democratic pri
maries, and that there being no state action, plaintiff was
not deprived of any constitutional rights.

14.
The Court erred in failing to hold that there could be

no violation of plaintiff’s constitutional rights in the re
spects complained of unless the Democratic primary was
by statute made an essential part of the electoral process
so that it was necessary by statute to vote in the primary
in order to have any effect in the General Election.

15.
The Court erred in failing to hold that the Democratic

primary and the Democratic party were not, at the time
complained of by the plaintiff, by statute made an essen
tial part of the electoral process in the State of South Car
olina for the choice of United States Congressmen or Sen
ators.

16.
The Court erred in holding that the Democratic pri

mary of South Carolina is subject to the provisions of A r
ticle 1, Sections 2 and 4 of the United States Constitution.

17.
The Court erred in holding that the defendants in con

ducting the Democratic primary of 1946 were performing
an essential governmental function of the State of South
Carolina and in doing so were subject to the provisions of
the Fourteenth and Fifteenth Amendments to the United
States Constitution.

110 R ice et al., A ppellants, v. E lmore, A ppellee

18.
The Court erred in holding that the Democratic pri

mary conducted at the times alleged in the complaint was
an election within the meaning of Article 1, Sections 2 and
4 of the United States Constitution and of the Fourteenth
and Fifteenth Amendments.

19.
The Court erred in holding that the plaintiff had been

deprived of civil rights guaranteed under Title 8 U. S.
C. A., section 31.

20.
The Court erred in holding that Title 8 U. S. C. A., sec

tion 31, created a cause of action or authorized any suit to
be brought thereunder.

21.
The Court erred in failing to find in his “ findings

of fact and conclusions of law” the facts in their entirety
as stipulated by counsel of record and as set forth in the
Stipulation.

22.
The Court erred in failing to hold that it had no juris

diction to render a declaratory judgment in this case for
the reason that there was no actual justiciable controversy
between the plaintiff and the parties defendant.

23.
The Court erred in holding and ordering that all qual

ified electors had the right to vote in all Democratic pri
maries, for the reason that such attempted relief was not
only unwarranted by the facts and the law, but exceeded
the relief demanded in the Complaint.

24.
The Court erred in failing to grant the defendants’

motion for an order making the complaint more definite and
certain by separately stating the alleged causes of action
therein contained, for the reason that such an order would
have facilitated and clarified the hearing of the action.

A ppendix 111

25.
The Court erred in failing to grant defendants’ mo

tion to strike certain allegations of the Complaint for the
reason that such allegations were irrelevant and the con
tentions therein served only to confuse and decloud the true
issues.

26.
The Court erred in failing to hold that it is a univer

sally established rule of law that in private voluntary asso
ciations, such as the Democratic party of South Carolina,
which is wholly unregulated by statute, the membership has
a complete and unrestricted delectus personarum, that is a
choice of membership, and no one can complain of the vio
lations of any Constitutional rights by being excluded from
membership therein.

27.
The Court erred in failing to hold that the Smith v.

Allwright and like cases, including the Classic Case, are
to be distinguished from the case at bar in that in such cases
the nominating primary involved was by statute made an
essential part of the statutory electoral process so that it
was by statute made necessary to vote in the primary in
order to cast any effective vote in the general election, and
such cases depended wholly upon the existence of such stat
utory control of the primary.

28.
The Court erred in failing to hold that in view of the

fact that the State of South Carolina does not, and did not
at the times complained of in the Complaint, by any law or
by any statute regulate the Democratic nominating primary
and the defendants at the times complained of were not act
ing under color of any State statute or law of the State of
South Carolina, but the said defendants were acting wholly
under the rules of the Democratic party enforceable only
by expulsion from the party, the Federal Courts are wholly
without jurisdiction of this controversy and without juris
diction to enter any declaratory judgment.

112 R ice et al., A ppellants, v. Elmore, A ppellee

29.
The Court erred in failing to hold that the Courts are

under a positive obligation to protect the traditional and
Constitutional rights of the citizens of this State and of the
Democratic party of South Carolina to choose membership
of their party under the Constitutional right to life, liberty
and the pursuit of happiness and under the constitutional
provision “ peaceably to assemble” . (Amendment No. 1 of
the United States Constitution.)
Columbia, S. C.,
August 15, 1947.

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