Baskin v. Brown Brief and Appendix for Appellee

    United States Court of Appeals
Fourth Circuit

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

v.

D avid B row n , o n  b e h a lf  o f  h im se lf  a n d  
o th e r s  s im ila r ly  s i tu a te d ,

Appellee.

>No. 5861

BRIEF A N D  A PPEN D IX  FOR APPELLEE

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

T httrgood M arshall ,
New York, New York,

Counsel for Appellee.
R obert L. Carter ,
C onstance  B aker  M otley ,

New York, New York,
Of Counsel.



I N D E X

PAGE

Statement of Case_______________     1

Statement of Facts____________________________  2

Argument:

Preliminary Statement ______________________ 2

I—The affidavit of John E. Stansfield was insuffi­
cient on its face to require the trial judge to dis­
qualify himself _________________________  3

a. Statement Made in Dismissing Complaint As
to Three Defendants_______    5

b. Statement Made After Hearing on Prelimi­
nary Injunction _______________________ 6

c. Newspaper Reports of Statements Made at
Meeting _____________________________  7

II—The actions of the Democratic Party of South 
Carolina are subject to the prohibitions of the 
United States Constitution to the same effect as 
in the case of Rice v. Elmore_______________  8

III—Rules 6, 7, and 36 of the Democratic Party of 
South Carolina defy the prohibitions of the Four­
teenth and Fifteenth Amendments to the Federal 
Constitution ____________________________  14

Conclusion ___________________________   18



n

American Steel Barrel Co., Ex Parte, 230 IT. S. 35___  4

Berger v. United States, 255 U. S. 25_____________ 4, 8
Bnchanan v. Warley, 245 U. S. 60, 82________ :_____  13

Cravens v. U. S., 22 F. (2d) 605 _________________  4, 8
Cuddy v. Otis (C. C. A. 8), 33 F. (2d) 577__________ 8

Davis v. Schnell, 81 Fed. Supp. 872 (1949)________ 13,16

Elmore v. Rice, 72 Fed. Supp. 516, 165 F. (2d) 387, 
cert, denied 333 U. S. 875 (1948)______________2, 3, 8

Fairbank, N. K. Co., Ex Parte, 194 F. 978 (1912) _____ 4

Guinn v. United States, 238 U. S. 347 ______________ 16

Henry v. Speer, 201 Fed. 869 ___________________  4
Hill v. Texas, 316 U. S. 400, 404__________________  13

Kerr v. Enoch Pratt Library, 149 F. (2d) 212___ ___ 13,15

Lane v. Wilson, 307 U. S. 268___________________  16
Lisman, In re (C. C. A. 2), 89 F. (2d) 898 __________  8

Marsh v. Alabama, 326 U. S. 501_________________ 13,14
Minnesota & O. P. Co. v. Molyneaux (C. C. A. 8), 70 F.

(2d) 545 ____ __________ ____________ -______ ' 8
Morgan v. Virginia, 328 U. S. 373 _______ -_1.__ 17

Oyama v. California, 332 U. S. 633 13



Ill
PAGE

Parker v. New England Oil Corp., 13 P. (2d) 497 —. 4,8

Sacramento S. F. T. Co. v. Tathom (C. C. A. 9), 40 F.
(2d) 894, cert, denied 282 TJ. S. 874 ____________  8

Saunders v. Piggly Wiggly Corp., 1 F. (2d) 582 ....... 4
Shelley v. Kraemer, 334 U. S. 1_________________  13
Smith v. Allwright, 321 U. S. 649_______________ 9,12
Steele v. Louisville & Nashville R. R., 323 U. S. 192__ 13,15
Strauder v. West Virginia, 100 U. S. 303__________  13

Takahashi v. Fish & Game Commission, 332 U. S.
410 ______________________________________ 13

Truax v. Raich, 239 U. S. 33_____________________ 13
Tunstall v. Brotherhood of Locomotive Firemen, 323 

U. S. 210 ________________________________ 13,15

Virginia Ex Parte, 100 U. S. 339_________________  13
Virginia v. Reeves, 100 U. S. 313_________________  13

Wilkes v. United States (C. C. A. 9), 80 F. (2d) 285 __  8

Yick Wo v. Hopkins, 118 U. S. 356.______ _________  13

O ther A u th orities

Constitution of United States
Article I, Secs. 2 and 4, Amendments 14 and 15___  1

United States Code
Title 8, Secs. 31 and 4 3 ______________________  1
Title 28, Sec. 144 __ ________________________ 8



IV

Index  to A p p en d ix
PAGE

I—Abstracts of Proceedings on Hearing for Pre­
liminary Injunction ____________________ la.-5a

II—Testimony of W. P. Baskin on Hearing for Pre­
liminary Injunction ___ ________________ 5a-28a

III—Testimony of David Brown on Hearing for Pre­
liminary Injunction ___i____,___________ 28a-29a



United States Court of Appeals
Fourth C ircuit

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

v.

D avid B row n , on  b e h a lf  o f  h im se lf  a n d  
o th e r s  s im ila r ly  s i tu a te d ,

Appellee.

No. 5861

BRIEF FOR APPELLEE

Statem ent of Case

On July 19, 1948, the United States District Court for 
the Eastern District of South Carolina entered an order 
herein which temporarily enjoined the defendants-appel- 
lants from denying to plaintiff-appellee, and others simi­
larly situated, the right to enroll in local Democratic party 
clubs solely because of their race and color and from deny­
ing to plaintiff-appellee, and others similarly situated, the 
right to vote in the Democratic party primary of August 
10, 1948 without first presenting general election certificates 
not required of white voters and without first having taken 
the oath prescribed by the Democratic party’s rules.

The basis for this temporary injunction was that the 
acts complained of denied plaintiff-appellee rights guar­
anteed by Article I, sections 2 and 4, of the Constitution of 
the United States, and Amendments Fourteen and Fifteen 
thereof and was in violation of rights protected by Title 8, 
Sections 31 and 43.



o

On October 22, 1948, at a bearing held in the district 
court, it was found that its order of July 19, 1948 had been 
obeyed. Plaintiff amended his pleadings by striking out 
his pleas for damages. The case was then heard on a 
stipulation of facts by the parties, the testimony of wit­
nesses and oral argument. On November 26, 1948 an order 
permanently enjoining defendants-appellants from denying 
plaintiff-appellee, and others similarly situated, the above 
rights was entered by the court. The points raised by ap­
pellants on this appeal have been adjudicated by the court 
below and are set out as principle questions in appellants’ 
brief. Appellee’s reply to these questions is contained in 
the argument in this brief.

Statem ent of Facts

The Statement of Facts set forth in appellants’ brief 
is essentially correct. There are some errors and minor 
inaccuracies which will be pointed out in the argument in 
this brief. The material facts in this case are accurately 
set forth in the Findings of Fact of the District Judge and 
appear in Appendix for Appellants, pages 80 to 84.

A R G U M E N T  

Preliminary Statem ent

The decision of the district court and this Court in the 
case of Elmore v. Bice, were well known to the appellants 
in this case. Senator W. P. Baskin was one of the attorneys 
and was a witness in that case. The decisions in the Elmore 
case were known to those who drafted the 1948 rules and 
those who participated in adopting these rules because the 
rules specifically cite the decison of Judge W aking . In view 
of the fact that the appellants are all either members of the



3

State Committee or County Chairmen of the Democratic 
Party of South Carolina they must have been familiar with 
these decisions.

Although the decision in the Elmore case was technically 
only against the officials of the Richland County group of 
the Democratic Party, the precedent established in that case, 
affirmed by this Court, and certiorari denied by the Supreme 
Court, was entitled to be respected by all of the units of 
the Democratic Party of the State of South Carolina.

It is clear, however, from the action of the appellants, 
their testimony, their pleadings, and their brief in this 
Court, that they refuse to recognize the validity of the de­
cision of the trial court or the decision of this Court in the 
case of Elmore v. Rice.

Appellants’ brief filed in this Court really consists of 
only two points, (1 ) that Judge W aring  should have dis­
qualified himself pursuant to the Stansfield affidavit and; 
(2) that the decision in Elmore v. Rice was wrongly decided 
and should be overruled.

I
The affidavit of John E. Stansfield w as insufficient 

on its face to require the trial judge to disqualify  
him self.

The affidavit of appellant John E. Stansfield was filed 
just prior to the final hearing in this case. The affidavit 
includes quotations from statements made by the district 
judge in dismissing the complaint as to certain of the defen­
dants, statements made at the close of the hearing for a 
preliminary injunction after testimony and argument, and 
quotations from a newspaper article commenting upon a 
speech of the district judge made before the National Law­
yers Guild Chapter in New York City.



4

The affidavit and the brief for appellants filed in this 
Court did not make it clear that the reference to the actions 
of the officials of the Democratic Party of South Carolina 
in relation to their refusal to follow the spirit of the Elmore 
decision were made by the district judge after a full hear­
ing on the preliminary injunction and after the appellants 
had made no showing of any kind which could either factu­
ally or legally support their actions. These comments were 
made in the rulings of the District Judge on the motion 
for preliminary injunction and neither the statements from 
the bench nor the opinion filed on the motion for prelimi­
nary injunction go beyond the recognized scope of judicial 
opinion made after consideration of the evidence and argu­
ments. Failure of appellants to produce testimony on their 
behalf or to make legal arguments on their behalf cannot 
be used as the basis for later charges of bias on the part of 
the trial judge.

The decisions interpreting the old disqualification stat­
ute are clear that there must be a showing of personal bias 
against or in favor of one or more parties to the litigation. 
Henry v. Speer, 201 Fed. 869; Cravens v. U. S., 22 F. (2d) 
605; Ex parte N. K. Fairbank Co., 194 F. 978 (1912); Parker 
v. New England Oil Corp., 13 F. (2d) 497; Ex parte Amer­
ican Steel Barrel Co., 230 U. 8. 35; Saunders v. Piggly 
Wiggly Corp., 1 F. (2d) 582; Berger v. United States, 255 
U. S. 25. All of the decisions relied upon by the appellants 
and other decisions not cited by them make it clear that the 
affidavit must make an affirmance of personal bias. It is 
likewise clear from the cases that comments of the trial 
judge upon the law and/or the evidence are not within the 
rule. A reading of the affidavit demonstrates clearly that 
there is no showing of personal bias. United States Dis­
trict Judge J. W aties W aring  in refusing to disqualify him­
self made the following comment upon the affidavit:



0

“ T h e  Co u r t : There are two parts to it. The 
first complains of my decision. Well, I am of the 
opinion that the decision was right. It is in con* 
formity with the opinions in other cases, which have 
been affirmed. It is the plain law of the land, and 
certainly it is the law in this case as this case hasn’t 
been appealed from. The second one seems to be on 
the ground that I spoke in New York at a Lawyers 
meeting, which I did, based on some newspapers re­
ports, which are mostly correct, and the address was 
to the effect that I was in favor of enforcing the law. 
I assume that if I had made a speech that I believed 
in enforcing the law against murder, I would have to 
disqualify myself from trying a murder case on this 
theory. I suppose that if I had said I was in favor 
of enforcing the revenue laws, I couldn’t try any of 
the numerous illicit distilling violations. There is 
nothing to the motion. Petition dismissed. Let us 
proceed to the other motions in this case” (A68).

a. S ta tem en t M ade in  D ism issing  C om plaint A s to T hree  
D efen d an ts.

In the Appendix filed with this brief, pages la-5a, there 
appears the full statement as to the dismissing of the com­
plaint as to certain of the defendants. These defendants 
had filed motions setting forth in great detail sufficient 
grounds for dismissal as to them. These defendants made 
it clear that they did not intend to do any of the acts which 
were the basis of the complaint in this case. They made it 
clear that despite the rulings of the Democratic Party of 
South Carolina they had refused to prevent qualified Negro 
electors from enrolling or to enforce the oaths complained 
of or to in any other manner discriminate against qualified 
Negro electors. In dismissing the complaint as to these de­
fendants the district judge stated: “ I thank you for your 
returns, not personally, on behalf of the government—on 
behalf of the American people. I ’m glad to see that some



6

of our citizens realize that this country is an American 
country; that it is not a country of persecution; that it is 
not a country of minorities or parties, groups or religious 
creeds, races. I hope that the press will publish the whole 
or excerpts of the returns made by these three counties, 
and my brief remarks in regard to them” (A4a). Obvi­
ously this statement does not demonstrate personal bias 
against the appellants or in favor of the appellee herein.

b. S ta tem en t M ade A fter  H earin g  on P relim inary
Injunction .

The quotations in the affidavit as to the leaders of the 
party is a reasonably accurate statement of the remarks of 
the trial judge appearing in the transcript of testimony of 
that hearing on pages 52-53. It should be made clear that 
these statements were made at the close of the hearing for 
a preliminary injunction. It was the conclusion of the trial 
judge after the appellants had failed to put in any testimony 
attempting to justify their action and after the attorneys 
representing appellants had made it clear that they would 
not make an argument as to the law involved, but rather 
stated: “ We are going to submit, as far as the defendants 
are concerned, without argument.”

It was clear from the testimony of appellant Baskin and 
from the new rules of the Democratic Party of South Caro­
lina that their action was a deliberate and determined ac­
tion which was aimed at refusing to follow the precedent 
in the Elmore decision. There could be no doubt that the 
continuation of the practice of restricting enrollment to 
“ white” Democrats was not only a violation of the spirit 
of the Elmore decision but was in direct violation of the. 
opinion of the district judge in the Elmore case. “ The 
plaintiffs and others similarly situated are entitled to be



7

enrolled and to vote in the primaries conducted by the 
Democratic Party of South Carolina.” 72 Fed. Supp. at 
page 528. (Italics ours.)

This statement by the district judge is in keeping with 
the recognized practice of commenting upon the evidence 
or lack of evidence and other proof and the law involved in 
the case. This most certainly cannot be construed as evi­
dence of personal bias.

c. N ew sp ap er  R eports o f  S ta tem en ts M ade a t M eeting .

The remaining part of the Stansfield affidavit deals with 
the newspaper report of a speech made by the district judge 
after the hearing on the preliminary injunction. The speech 
was made in New York City at a meeting of the New York 
chapter of the National Lawyers Guild. In the first place, 
there is nothing out of the ordinary in a United States 
District Judge attending and speaking at meetings of a 
recognized national bar association. As a matter of fact it 
is a common practice and is necessary for the betterment of 
the lawyers of our country.

The district judge stated that the newspaper clipping 
was reasonably accurate and could only be interpreted as 
his determination to enforce the Constitution and laws of 
the United States in an impartial manner without regard 
to race, creed or color. His statements cannot possibly be 
interpreted as personal bias. Rather, it is clear that his 
statements demonstrate an absence of bias.

In the affidavit, as well as the newspaper clipping there 
appears to be emphasis on the fact that the district judge 
made a comment that if one of the attorneys for the ap­
pellee had not brought legal action, Negroes would not be 
voting in primary elections in South Carolina. A study of



the decision in the Elmore case, along with the background 
of disfranchisement of Negroes in South Carolina, plus the 
determined efforts to flaunt the Constitution and laws of 
the United States makes it clear that unless someone had 
brought that type of legal action, Negroes would not now 
be voting in South Carolina.

Other quotations in the newspaper article point to 
Judge W ardstg’s comment as to the question of race rela­
tions in the south. These comments could in no wise be 
interpreted as expressions of personal bias against the 
appellants.

Appellant Stansfield’s affidavit, then, is insufficient as a 
matter of law as it fails to show that personal bias and 
prejudice against affiant or any other defendant-appellant 
or in favor of plaintiff-appellee required by Title 28 U. S. C. 
144. Compare Berger v. United States, supra; with Parker 
v. New England Oil Corp., supra; Craven v. United States, 
supra; Cuddy v. Otis (C. C. A. 8), 33 F. (2d) 577; Sacra­
mento, S. F. T. Co. v. Tatkom (C. C: A. 9), 40 F. (2d) 894, 
Cert, denied 282 U. S. 874; Minnesota & 0. P. Co. v. Moly- 
neaux (C. C. A. 8), 70 F. (2d) 545; Wilkes v. United States 
(C. C. A. 9), 80 F. (2d) 285; In re Usman (C. C. A. 2), 89 
F. (2d) 898.

II

The actions of the Dem ocratic Party of South Caro­
lina are subject to the prohibitions of the U nited  States 
Constitution to the sam e effect as in the case of R ice  
v. Elm ore.

This case is the sequel to the case of Elm,ore v. Bice, 72 
F. Supp. 516 (1947), 165 F. (2d) 387, cert, denied 333 U. S. 
875 (1948), which was before this Court on appeal from 
the decision of the same court in this case almost one year



9

ago to the day. In that case the district court found that 
immediately after the decision of the United States Su­
preme Court in the case of Smith v. AllwrigM, 321 U. S. 649 
(1944) the State of South Carolina in extra-ordinary session 
called by the then Governor repealed every statutory pro­
vision regulating the primary as well as the Constitutional 
provision authorizing primary laws. Thereafter, the Demo­
cratic Party boldly excluded Negroes (1) from membership 
and (2) participation in its primary election solely because 
of race and color.

The opinion of the district judge in the Elmore case, 
supra, concluded that “ the prayer of the complaint for a 
declaratory judgment 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 pri­
maries conducted by the Democratic Party of South Caro­
lina” (72 Fed. Supp. 516, 528).

The basis for this conclusion was clearly stated as fol­
lows :

“ 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 Pri­
mary held by it is the only practical place where one 
can express a choice in selecting federal and other 
officials. Racial distinctions cannot exist in the 
machinery that selects the officers and lawmakers 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 
realistic elections are clothed with the name ‘pri­
mary’, they are equally entitled to vote there” (72 
Fed. Supp! (2d) 516, 528).

The final judgment in the Elmore case was appealed to 
this Court and the judgment of the District Court was 
affirmed and in the opinion of this Court it was made clear



10

that race and color should not play any part whatsoever in 
the election machinery of the State of South Carolina, 
whether it be in the general election, primary election, or 
any parts thereof:

“ The use of the Democratic primary in connec­
tion with the general election in South Carolina pro­
vides, as has been stated, a two step election ma­
chinery for that state; and the denial to the Negro of 
the right to participate in the primary denies him all 
effective voice in the government of his country. 
There can be no queston that such denial amounts to 
a denial of the constitutional rights of the Negro; 
and we think it equally clear that those who partici­
pate in the denial are exercising state power to that 
end, since the primary is used in connection with the 
general election in the selection of state officers. 
There can be no question, therefore, as to the juris­
diction of the court to grant injunctive relief, whether 
the suit be viewed as one under the general provision 
of 28 U. S. C. A., section 41 (1) to protect rights 
guaranteed by the Constitution, or under 28 U. S. C. 
A., section 41 (11) to protect the right of citizens of 
the United States to vote, or under 28 U. S. C. A., 
section 41 (14) to redress the deprivation of civil 
rights” (165 Fed. (2d) 387, 392).

Although, prior to the Elmore decisions, it was possible 
to argue that the constitutional guarantees relied upon by 
the appellee were not applicable to the South Carolina 
election set-up, it is now perfectly clear that the entire elec­
tion machinery of South Carolina comes within the prohi­
bition of our Constitution. However, the appellants as 
state officials of the Democratic Party of South Carolina, 
continuing their determination to use race and color as an 
effective bar to the exercise of the right to make a meaning­
ful choice of elected representatives, deliberately ignored 
the true intent of the Elmore decisions and sought to ac-



11

complish the same purpose by other devious means. As 
was pointed out in the Report of the President’s Committee 
on Civil Rights:

“ This report cannot adequately describe the 
history of Negro disfranchisement. At different 
times, different methods have been employed. As 
legal devices for disfranchising the Negro have been 
held unconstitutional, new methods have been impro­
vised to take their places. Intimidation and the 
threat of intimidation have always loomed behind 
these legal devices to make sure that the desired re­
sult is achieved.” (“ To S ecure  T h e se  R ig h t s , ”  pp. 
35-36.)

No place in either the pleadings or the briefs in this 
case have the defendants-appellants made a serious effort 
to deny that the true purpose of their action is to exclude 
Negroes solely because of race or color from participation 
in the Democratic Party of South Carolina.

On May 19,1948, at the regular Convention of the Demo­
cratic Party held in Columbia, South Carolina, rules were 
adopted in place of the rules of the party previously in 
force. Membership in the Democratic Party clubs con­
tinued to be limited, among other things, to,

“ * * * a white Democrat who subscribes to the prin­
ciples of the Democratic Party of South Carolina as 
declared by the State Convention.”

Participation in the Democratic primary was limited by 
these rules to

“ * * # all duly enrolled club members * * * if they 
take the oath required of voters in the primary; and 
in conformity with the order of Judge J. Waties 
Waring, United States District Judge, in the case of 
Elmore etc. v. Rice, et al., all qualified Negro elec­
tors of the State of South Carolina are entitled to



12

vote in the precinct of their residence, if they present 
their general election certificates and take the oath 
required of voters in the primary.”

The oath required of voters was also provided for in 
the rules and required, among other things, that,

“ I further solemnly swear that I believe in and 
will support the principles of the Democratic party 
of South Carolina, and that I (understand and) be­
lieve in and will support the social (religious) and 
educational separation of races.

“ I further solemnly swear that I believe in the 
principles of the Democratic party of South Carolina, 
and that I (understand and) believe in and will sup­
port the social (religious) and educational separa­
tion of races.”

The position of appellants in this case is made clear in 
their brief. For example, they admit that the decision now 
appealed from ‘ ‘ is virtually identical with a like holding in 
Elmore v. Rice * * * which was affirmed by this Court * * * ” 1

The true purpose of the appeal in this case is set forth 
by the appellants as follows: “ We respectfully urge on the 
Court the view that the Democratic Party of South Caro­
lina’s primaries are not state action subject to the Consti­
tutional and statutory provisions relied on by appellee, and 
that Rice v. Elmore, supra, should be modified accord­
ingly. ’ ’2

Throughout the brief for appellants, the argument made 
by the appellants in Rice v. Elmore is repeated. This argu­
ment is based on the freedom of assembly provision of the 
Constitution, the assertion that the only election provided 
by statute in South Carolina is the general election; that 
the decision in Smith v. Allwright is based solely on statu-

1 Appellant’s Brief page 38.
2 Appellant’s Brief page 45.



13

tory control of the primary machinery and that the portion 
of the decision in U. S. v. Classic relied upon by this Court 
in the Elmore case was in fact merely dicta. All of these 
points were fully argued in the Elmore case.

The brief for appellants completely ignores not only the 
effect of the decisions in regard to primaries of the type 
here involved but also ignored the applicable decisions con­
trolling so-called private action which in effect is perform­
ing governmental functions such as Marsh v. Alabama, 326 
U. S. 501; Steele v. Louisville da Nashville RR, 323 U. S. 
192; Tunstall v. Brotherhood of Locomotive Firemen, 323 
U. S. 210; Kerr v. Enoch Pratt Library, 149 F. (2d) 212.

The United States Supreme Court has also made it clear 
that racial distinctions cannot legally exist in governmental 
functions in this country. Takahashi v. Fish & Game Com­
mission, 332 U. S. 410, 420 L. ed. 1096, 1101; Oyama v. Cali­
fornia, 332 IT. S. 633, 640, 646; Shelley v. Kraemer, 334 U. S. 
1, 20, 23; Yick Wo v. Hopkins, 118 U. S. 356, 373, 374; 
Buchanan v. Warley, 245 U. S. 60, 82; Hill v. Texas, 316 
U. S. 400, 404; Strauder v. West Virginia, 100 U. S. 303, 
307, 308; Truax v. Raich, 239 U. S. 33, 41, 42; Virginia v. 
Reeves, 100 U. S. 313, 322; Ex Parte Virginia, 100 U. S. 339, 
344, 345.

Although it might not yet be clear that all types of racial 
distinctions are invalid, there is at least one area of Ameri­
can law in which it has been made clear that race or color, 
either expressed or implied, is invalid. That area is the 
right of an American citizen to qualify for and participate 
in the election of governmental officials. The most recent 
instance of the application of this doctrine is in the case of 
Davis v. Schnell, 81 Fed. Supp. 872 (1949) which was 
affirmed by the United States Supreme Court on Monday, 
March 28.* In that case, the Boswell Amendment to the

* October Term, 1948, No. 606.



14

Constitution of the State of Alabama was declared uncon­
stitutional as effectively depriving Negroes of the right to 
register although the amendment made no mention what­
soever of race or color.

The legal status of the Democratic Party of South Caro­
lina was determined in the Elmore ease. That decision' is 
in keeping with earlier and later decisions of the United 
States Supreme Court. It is admitted that the factual 
basis of the Democratic Party in South Carolina in the 
Elmore case is unchanged (A29a). The Democratic Party 
of South Carolina is no more of a private organization to­
day than it was at the time of the Elmore case.

I ll

Rules 6, 7, and 36 of the Dem ocratic Party of South  
Carolina defy  the prohibitions o f the Fourteenth and 
Fifteenth Am endm ents to the Federal Constitution.

Rule 6 which limits membership in the Democratic Party 
of South Carolina to white Democrats is in clear violation 
of the decisions in the Elmore case. The validity of such a 
provision depends upon the theory of appellants that the 
Democratic Party of South Carolina is a private organiza­
tion outside the scope of the United States Constitution. 
This theory is in conflict with the decisions in the Elmore 
case and other relevant decisions.

In other cases, the Supreme Court has recognized that it 
is not the symbols and trappings of officialdom which de­
termine 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, the Supreme Court held 
that the Fourteenth Amendment operated on the private 
owner of a “ company town” to protect the right of freedom



15

of speech. Labor unions, although private voluntary asso­
ciations, have been held by the Supreme Court subject to the 
limitations of the due process clause of the Constitution 
when exercising powTer conferred by the federal govern­
ment. Steele v. Louisville and Nashville RR, 323 U. S. 192, 
Tunstall v. Brotherhood of Locomotive Firemen, 323 U. S. 
210. Similarly this Court in Kerr Enoch Pratt Free 
Library, 149 F. (2d) 212, certiorari denied, 326 U. S. 721, 
held that where a corporation had invoked the power of 
the state for its creation and relied upon city funds for its 
operation it was in fact a state instrumentality.

The effect of Rule 6 is not only to deprive qualified Negro 
electors of the right to participate in that portion of the 
election machinery of the State of South Carolina controlled 
by the Democratic Party but sets up a dual standard for 
qualifying to vote in the Democratic primary elections. This 
is apparent from Rule 7 which provides that enrolled club 
members are entitled to vote without further qualifications 
but that qualified Negro electors are required to “ present 
their general election certificates” . This dual standard of 
qualifying to vote based solely upon race or color is in clear 
violation of the Fourteenth and Fifteenth Amendments.

Although Rule 36 did not mention race or color as such, 
the purpose of that rule and the statement of party prin­
ciples were likewise aimed at depriving Negroes of the right 
to exercise their choice of elected representatives. This is 
not only clear from the pleadings and the testimony of 
Senator Baskin but is also clear from the brief for appel­
lants. For example, in commenting upon these specific pro­
visions and rules, the appellants stated: “ Under those pro­
visions, the appellee and those for whom he sues [all quali­
fied Negro electors] were not eligible to enroll as members 
of the party or to vote in this primary, even after the elimi­
nation of that portion of Rule 6 which limits membership 
to white Democrats” (Appellant’s Brief, p. 37).



16

In the most recent decision pertinent to the instant case, 
the United States Supreme Court affirmed the decision of 
the United States District Court for the Southern District 
of Alabama in the case of Davis v, Schnell, 81 Fed. Supp. 
872 (1949), affirmed, United States Supreme Court, October 
Term, 1948, No. 606. The opinion of the District Court 
stated:

“ It, thus, clearly appears that this Amendment 
was intended to be, and is being used for the purpose 
of discriminating against applicants for the fran­
chise on the basis of race or color. Therefore, we are 
necessarily brought to the conclusion that this Amend­
ment to the Constitution of Alabama, both in its ob­
ject and the manner of its administration, is unconsti­
tutional, because it violates the Fifteenth Amend­
ment. While it is true that there is no mention of 
race or color in the Boswell Amendment, this does 
not save it. The Fifteenth Amendment ‘nullifies 
sophisticated as well as simple-minded modes of 
discrimination,’ and ‘It hits onerous procedural re­
quirements which effectively handicap exercise of the 
franchise by the colored race although the abstract 
right to vote may remain unrestricted as to race.’ 
Lame v. Wilson, 307 U. S. 268, 275, 59 8. Ct. 872, 876, 
83 L. Ed. 1281. Cf. Smith v. Allwright, supra; Guinn 
v. United States, supra."

The decision in the Boswell Amendment case declares 
invalid the latest method in the long history of efforts to 
prevent Negroes from qualifying to vote. See Guinn v. 
United States, 238 U. S. 347, Lane v. Wilson, 307 U. 8. 268.

The method of preventing Negroes from participating 
in the choice of elected officials in South Carolina is in the 
same category as to efforts to continue the white primary 
as was the Boswell Amendment effort to continue the policy 
of preventing Negroes from qualifying to vote. Both in­
genious methods were invented as a deliberate effort to



17

circumvent the Constitution and laws of the United States 
as interpreted by the courts.

Rule 36 as adopted by the 'Democratic convention in 
South Carolina is set forth in the Appendix on pages 83-84. 
As originally adopted the oath contained the provision that 
the person applying must swear that he understood and 
believed in certain principles. The words ‘ ‘ understand and’ ’ 
were later deleted by the Executive Committee of the Demo­
cratic Party. There is serious question as to whether or 
not the Executive Committee had authority to do so. It is 
not clear as to whether or not the words would have been 
returned to the oath but for the preliminary injunction in 
this case.

The oath required that a person applying to vote must 
believe in the “ social and educational separation of the 
races” and oppose “ the proposed federal so-called F. E. 
P. C. law.” In the brief of appellants it is made clear 
that the proposed oath was not only an indefinite and un­
reasonable limitation on the right to vote but that it was 
aimed at denying Negroes the right to vote. For example, 
attorneys for the appellants set forth in their brief the 
statutes which they claimed to be included in the phrase, 
“ social and educational separation of the races.” Included 
among these statutes is one requiring the segregation of 
the races in transportation. Such a statute is invalid as 
applied to interstate passengers since the decision of the 
Supreme Court in the case of Morgan v. Virginia, 328 U. S. 
373, so that it would be impossible for the average voter to 
“ understand” the exact meaning of the phrase in the oath 
he was required to make. However, the Negro applicant 
while having some doubt as to the significance of the pro­
visions themselves would have no doubt that he was being 
required to swear to oppose fair employment practices 
legislation aimed solely at preventing discrimination against



18

him in employment because of race and color. So, it is 
clear that the intent of appellants as set forth in their brief, 
quoted above, coincides with the actual effect of such a 
provision.

Appellants 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 ‘4 right ’ ’ 
which appellants assert is the absolute authority to deprive 
Negroes in South Carolina of the effective exercise of their 
right to choose members of Congress. 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 grievances. It is an organization carry­
ing on a part of the function 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 Constitutional limitations. In any 
event, appellants’ right to assemble cannot be so exercised 
so to deprive appellee of his right to vote and this Court 
so held in Bice v. Elmore, supra.

Conclusion.
W h er efo r e , it is respectfully submitted that the judg­

ment of the United States District Court for the Eastern 
District of South Carolina should be in all respects affirmed.

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

T hxjrgood M arshall ,
New York, New York, 

Counsel for Appellee.
R obert L. Carter,
C onstance  B aker  M otley ,

New York, New York,
Of Counsel.



A ppendix.

UNITED STATES DISTRICT COURT, 
E astern  D istrict  of S o u th  C arolina .

[ s a m e  t i t l e ]

Charleston, S. C., July 16, 1948, 10 a. m.

[Tr. 1]
# = * #  #  #  #

The Court: I have read the pleadings. The pleadings 
have been served. Have plaintiff’s attorneys read the re­
turns?

Mr. Marshall: We have read every return. We wish 
to make a motion as to certain—

The Court: As to individual returns first you wish to 
make a motion?

Mr. Marshall: Yes, sir.
The Court: I ’d like to hear it.

[Tr. 3]

Mr. Marshall: As to the return of C. Victor Pyle, 
County Chairman of the Democratic Party of Greenville 
County; as to the return of the defendant, James P. Sloan, 
Laurens County, and, if your Honor please, as to particu­
larly Laurens County, the affidavit was not attached, with 
the understanding between us, and we have no objection, to 
its being filed and it being considered.

The Court: That will be done, Mr. Price?
Mr. Price: Yes, sir.
The Court: Very good.



2a

Discussion

Mr. Marshall: The other one, the defendant, Julian I). 
Wyatt, Chairman of the Democratic Party of Pickens 
County.

As to these three defendants, if in order, we move that 
the temporary injunction as to them be resolved and vacated 
and they be dismissed from this action. The reason for this 
is that we consider these returns to be full and complete. 
As far as we can see, they answer each of the allegations in 
the case.

As to the return of the defendant, Mr. Purdy, it does not 
have any allegation at all concerning the oath. For that 
reason we cannot move to dismiss concerning this. As to 
the other three, we move, if in order—

The Court: Anything to say in regard to that, Mr. 
Rivers!

Mr. Rivers: The position of Mr. Purdy is that he is not 
interested in supporting the oath. His committee has not

[Tr. 4]

met, but, of course, whatever your Honor rules on that will 
be followed by the executive committee—

The Court: Well, but the question here is that plaintiff 
is moving for dismissal as to the three counties that have 
completely conformed—like Richland, that is not a party to 
the cause—and I ’m uncertain whether Mr. Purdy’s county 
should be kept within the cause or also dismissed. Is Mr. 
Purdy present?

Mr. Rivers: Mr. Purdy is present.
The Court: Does Mr. Purdy desire to amend his return 

by saying that this oath or form of oath, whether in original 
or amended form, that is prescribed by the state party will be 
administered in the primary to be held on the second Tues-



3a

Discussion

day in August of this year, or whether people will be al­
lowed to vote without taking that oath?

Mr. Purdy: I belong to the executive committee, and 
we haven’t got that. We’ve been trying to cross bridges 
as we came to them. I don’t think I would have the au­
thority to say we would or wouldn’t. The only thing I 
have authority to say is I know we are not concerned about 
oaths, and anything that the Court sees fit—about the oath, 
it doesn’t concern us, but for me to say they’ll virtually 
knock the oath out, I ’m afraid I ’m without authority.

The Court: A great many people feel as you do about 
the oath—it doesn’t concern anybody—but, as a matter of 
fact, the governing board of the State Democratic Party

[Tr. 5]
has put it in. I expect I ’ll have to keep that county in the 
case.

Mr. Rivers: If your Honor please, could not the rule 
be dismissed except as to the question of the oath?

The Court: That wouldn’t be dismissal. I ’ll take care 
of it in the opinion, and prescribe that they’ll have to wait 
in to see what the others will be ordered to do.

Mr. Rivers: Then, as I understand, our return is suf­
ficient and satisfactory to the Court except as to the oath?

The Court: That’s true. As far as Greenville, Pickens 
and Laurens Counties are concerned, I want to say, gen­
tlemen, that i t ’s extremely gratifying to me to have these 
representatives, though there are only three, and I feel 
quite ashamed that there are only three counties in this 
state that recognize not only the meaning of the decision 
made by me, because there is no private opinion in this, 
but the decision made by the Circuit Court of Appeals and 
the Supreme Court of the United States, but much further



4a

Discussion

the supreme law of the land as true Americans. I ’m glad to 
see that the governing boards of three counties in this state 
are determined to run them, irrespective of any court 
action or any coercion or any proceedings or anybody tell­
ing them what to do—that they’ve got sense enough, they’ve 
got nerve enough, and they’ve got patriotism enough to 
make a true, fair and just decision.

Mr. Price, I thank you for your returns, not person­
ally, on behalf of the government—on behalf of the Amer-

[Tr. 6]
ican people. I ’m glad to see that some of our citizens re­
alize that this country is an American country; that it is 
not a country of persecution; that it is not a country of 
minorities or parties, groups or religious creeds, races. I 
hope that the press will publish the whole or excerpts of 
the returns made by these three counties, and my brief re­
marks in regard to them.

The County Chairmen of Greenville County, Laurens 
County, and Pickens County are dismissed from this cause 
and the rule.

In regard to Jasper County, I think i t’s unnecessary to 
go further into the matter at this time. The Jasper County 
Committee apparently has not met and passed upon all the 
issues here. It has, however, taken a unique and perfectly 
fair position as far as race is concerned to date. The 
Jasper County Committee doesn’t have any enrollment 
books. It, in effect, is out of the government of the state 
party. As to those internal matters, I have no concern 
with them, and they’ll have to be adjudicated in the state 
party or in the state courts perhaps as to what effect it 
has on their primary election, but they have conformed to 
the spirit of the proceedings of the courts, of all the courts



5a

W. P. Baskin—For Plaintiff—Direct

of this country, in that they are making no discrimination 
by reason of race. They are not having any enrollment 
books. They are allowing anyone who is a registered 
elector to vote. I retain jurisdiction of that county, or 
rather the representatives of that county, only for the pur-

[Tr. 7]

pose of seeing that any order issued by this Court in re­
gard to the matter of the oath applies to Jasper County as 
well as to the others.

Anything further on behalf now—in regard to the re­
turns of all the other counties as to the issues that have 
been raised here?

I ’ll hear from the plaintiff.
Mr. Eivers: Would it be in order for Mr. Purdy and 

me to be excused?
The Court: Unless you desire to remain as interested 

spectators.
Mr. Eivers: If your Honor will excuse me, sir.
The Court: You are not required to remain.

[Tr. 8]
W. P. B a s k in , sw orn .

Direct examination by Mr. Marshall.

Q. Mr. Baskin, you are one of the defendants in this 
case? A. I  am.

Q. You are also chairman of the Democratic Party of 
South Carolina? A. I ’m chairman of the State Executive 
Committee.



6a

IF. P. Baskin—For Plaintiff-Direct

Q. You are chairman of the State Executive Committee?
[Tr. 19]

A. Yes.
Q. Of the Democratic Party of South Carolina? A. 

Correct. Yes, sir.
Q. How long have you held that position? A. Since 

April of 1947.
Q. The rules of the Democratic Party of South Carolina, 

attached to the return filed by you and other defendants, 
are the correct rules of the Democratic Party of South 
Carolina? A. They are.

Q. Are they in full force and effect as of this date? A. 
They have been in full force and effect. Still are, sir.

Q. Is the printed copy of the rules—have you compared 
them with the rules as they were adopted? A. I have not 
compared them, but they were compared by the secretary 
of the convention, and he told me they were correct. My 
reading of them, apparently they are absolutely correct. I 
don’t know of any others.

Q. Senator Baskin, will you briefly, merely for the pur­
pose of the record, give the procedure by which these rules 
are adopted? A. The Democratic Party of South Caro­
lina, every general election year, reorganizes by the calling 
of precinct club meetings. They elect precinct officers and 
delegates to the county Democratic conventions; and there­
after, on the first Monday in May, the county Democratic 
conventions are held in the forty-six counties of the state. 
Those conventions elect their officers and elect a chairman

[Tr. 20]
of the county executive committee, and elect delegates to 
the state convention and a member of the state executive 
committee, Democratic Party. Thereafter, and on the third



7a

W. P. Baskin—For Plaintiff—Direct

Wednesday in May, the state convention of the Democratic 
Party of South Carolina is held, and at that convention the 
delegates from the various county conventions, elected by 
the various county conventions, participate in that conven­
tion, appoint a rules committee, credentials committee, and 
proceed to organize the state convention, by the election of 
first temporary president and secretaries and then by 
permanent president and permanent secretaries, and the 
election of a state chairman of the State Democratic Exec­
utive Committee and vice chairman and national committee­
man and national eommitteewoman, and adopt the rules of 
the party.

Q. Do you not prior to the adopting of the rules, change 
the former rules, declare the former ones null and void! 
A. Well, the adoption of the rules themselves say in lieu of 
the rules previously in force, they are declared to be the 
rules of the party—I think that’s the wording of it.

Q. As to the former rules of the Democratic Party as 
adopted in 1946, 1944, what changes were made in the pres­
ent rules as to the qualifications for club membership? A. 
I ’m not quite in a position to answer that, I ’d have to take 
the two and compare—I think the—

Q. Club memberships are still restricted to white Demo­
crats, which is substantially the same as before? A. Yes,

[Tr. 21]
sir; before, I believe the rules provided for club membership 
and voting; that rule was put in two rules, I believe.

Q. And was there not the rule 7, as to the qualifications 
for voting in the primaries, which requires that a Negro 
present an election certificate, general election certificate, 
that rule is in full force and effect? A. That is the rule 
adopted by the party.



W. P. Baskin—For Plaintiff—Direct

Q. And will be enforced on primary day? A. That rule 
adopted by the party, of course, is administered by the 
executive committee. I ’m only its chairman, and have no 
right to vote except in case of a tie. Those rules, of course, 
are the rules of the party, but they, of course, as affected 
by any decisions of the courts, would be tempered to that 
extent.

Q. Well, absent a decision of some court—in the absence 
of a decision of some court, the executive committee and 
you as chairman intend to enforce this rule? A. I have no 
authority to enforce any rule, no method whereby it can be 
enforced.

Q. What is your authority limited to? A. To presiding 
over the state executive committee.

Q. And is the state executive committee charged with 
enforcing these rules? A. The rules provide that the state 
executive committee may make such rules and regulations 
as may be necessary to enforce and regulate the rules of the 
party.

Q. So is the executive committee operating under these
[Tr. 22]

rules? A. Yes. Yes.
Q. Do you as chairman intend to operate under these 

rules? A. Subject, of course, to any decision of the courts 
which might indicate that changes are necessary.

Q. As I said before, in the absence of such decision, you 
intend to enforce these rules? A. I can’t say I intend to 
enforce them, because I have no right to enforce them—I 
can only advise with someone who asks me what they are.

Q. Under the rules, will there be another convention this 
year? A. Under the rules, the state executive committee 
could call a special convention.



9a

W. P. Baskin—For Plaintiff—Direct

Q. Has the executive committee called such a conven­
tion? A. It has not so far.

Q. Has the executive committee taken any action to 
amend or change these rules? A. The executive committee 
has no authority to change the rules.

Q. Well, I understand that, Senator, but I just want to 
know as to whether you intend to do anything about these 
rules as to changing? A. Well, the committee has talked 
about the matter a number of times, and I ’m not sure 
whether changes will be made or won’t be made—entirely 
possible they will be made.

Q. What I ’m trying to get, Senator, is, has any action 
been taken affirmatively looking toward the future change 
of these rules? A. Well, shortly after the rules were

[Tr. 23]
adopted, the executive committee unanimously suggested 
that the word “ religious”, I think, that had been objected 
to and put in there by inadvertence be eliminated, and it was 
eliminated.

The Court: I ’d like to know about that. You 
say they suggested—to whom?

The Witness: To me, sir.
The Court: And you changed it?
The Witness: Yes, sir.
The Court: Then you have authority to overrule 

the convention and change the rules?
The Witness: No, sir; I don’t think so, sir.
The Court: You did it?
The Witness: Yes, sir; I did that.
The Court: By what authority?
The Witness: Under adjournment resolution of 

the convention.



10a

W. P. Baskin—For Plaintiff—Direct

The Court: What does that say?
The Witness: I can’t give it to you word for 

word; I can tell you approximately what it says. The 
convention adjourned subject to call by the state 
chairman, with authority to make such changes as 
may be necessary—I believe, such changes—make 
such changes as he may deem necessary or for the 
best interests of the party—and I construed that to 
mean only minor corrections which did not affect ma­
terial things.

The Court: Rule 49 says, “ These rules may be 
[Tr. 24]

amended or altered at the regular May convention 
or any State convention called specially for that pur­
pose. Provided notice to amend be given the state 
chairman at least five (5) days before the conven­
tion. ’ ’

The Witness: Yes, sir. Yes, sir.
The Court: You still think you can change these 

rules?
The Witness: We thought so—on the consensus 

of opinion, and so long as corrections, inadvertently 
done, and did not affect material changes.

The Court: You mean by that you thought you 
could change anything that you thought was change­
able and you wanted to change ?

The Witness: No, sir; no, I don’t.
The Court: You did make some changes in the 

oath, didn’t you?
The Witness: Yes, sir.
The Court: You struck out the word “ religious” ?
The Witness: Yes, sir.



-11a

W. P. Baskin—For Plaintiff—Direct

The Court: You struck out the word “ under­
stand” ?

The Witness: Yes, sir.
The Court: In other words, the oath read, “ I 

further solemnly swear that I understand, believe in 
and will support the principles of the Democratic 
Party of South Carolina?”

The Witness: Yes, sir.
The Court: You thought it would clarify the 

oath to strike out the word “ understand”, so that
[Tr. 25]

the voter would swear he would believe in something 
he didn’t understand—was that the object?

The Witness: No, sir.
The Court: Well, what was the object? Why did 

you strike out the word “ understand”—a man 
swears to something he doesn’t understand—it was 
objectionable to swear to something he understands?

The Witness: No, sir.
The Court: Mr. Baskin, just tell me what it 

means. I ’m interested in the mentality of these 
changes and of the committee-—how did the com­
mittee figure out such a thing as that ?

The Witness: Someone in the committee—I 
don’t remember who it was—-

The Court: You don’t remember who it was— 
it would be interesting ?

The Witness: No, sir. Suggested that the word 
“ understand” should be stricken—that it really was 
surplus, I think.

The Court: It was surplus for a person to under­
stand what he swears to, is that your opinion, too?



12a

W. P. Baskin—For Plaintiff—Direct

The Witness: No, sir. No, sir. That the word 
“ believe” in there was all that was necessary, the 
other was simply added to—

The Court: Now, which is the oath that is the 
oath of the party now that you intend to enforce, the

[Tr. 26]
one adopted by the convention or the one amended 
by you at the suggestion of your committee!

The Witness: The oath in these rules.
The Courts: The amended will be presented at 

the primary?
The Witness: That will be presented unless it is 

changed or unless some—
The Court: It has been your intention up to this 

time to do that?
The Witness: I ’ve made the statement before, 

we are still considering changes of the oath, and the 
committee has not foreclosed that possibility, and if 
we were to suggest changes that were material, why 
the convention of course would have to be called.

The Court: You don’t think it’s material for a 
man to say whether he understands an oath or not? 
The understanding of an oath is not, to your mind, 
or the mind of your committee, a material thing? 
I t ’s all right for a man to say “ I believe” without 
understanding—you think that’s a wholly immaterial 
matter, don’t you?

The Witness: Judge, I don’t quite agree.
The Court: You don’t care to commit yourself 

on that?
The Witness: Sir, anything I believe, I under­

stand, I think, sir.



13a

W. P. Baskin—For Plaintiff—Direct

The Court: But you are going to make people 
[Tr. 27]

generally swear to what they believe without under­
standing?

The Witness: No, sir, it was not that intention.
The Court: Well, leave it as it is. Proceed.

Q. Do you or the committee, while contemplating the 
changing of the oath, contemplate the changing of the bot­
tom: “ I further solemnly swear that I believe in and will 
support the principles of the Democratic Party of South 
Carolina, and that I believe in and will support the social 
and educational separation of races.

“ I further solemnly swear that I believe in the prin­
ciples of States’ Eights, and that I am opposed to the pro­
posed Federal so-called F. E. P. C. law.” Any discussion 
about changing that? A. There has been some discussion— 
yes.

Q. Do you consider that material or not? A. That is a 
debatable question.

Q. That is a debatable question — you don’t know 
whether i t’s material or not? A. Debatable question.

Q. As the matter stands, it will be required as a pre­
requisite to voting in the August primary, is that correct? 
A. Unless the committee changes, or an order of the Court 
directs us otherwise. The party intends to comply with all 
orders of the Court.

Q. The same as to the rule as to enrolling? . A. Yes, sir.
Q. In other words, unless a temporary injunction is

[Tr. 28]
granted, Negroes will be prevented from enrolling solely 
because of their race? A. I wouldn’t say that; no, sir.



14a

IF. P. Baskin—For Plaintiff—Direct

Q. Well, are yon going to follow the rules or not? A. 
That enrollment provision has been construed in a number 
of different ways. In various counties they have construed 
it in different ways. In some of the counties Negroes have 
been allowed to enroll and they have not been purged.

The Court: That was a construction that was 
disobedience, wasn’t it—I mean Greenville County 
says, “ I won’t follow this rule” ?

The Witness: Yes, sir.
The Court: They didn’t construe white to mean 

Negroes?
The Witness: I mean the rules and decisions of 

the Court together.
The Court: How do you construe the decision of 

the Court—by the way, let me ask you this: The 
procedure by which the precinct clubs meet, county 
and state conventions, as you described, were sub­
stantially as you described them in the case of El­
more versus Rice?

The Witness: Yes, sir.
The Court: You are familiar with that case?
The Witness: Yes, sir.
The Court: You are familiar with the opinion in 

that case?
[Tr. 29]

The Witness: Fairly so, yes, sir.
The Court: Well, you read it?
The Witness: Yes, sir.
The Court: What do you think this means: “ The 

prayer of the complaint for a declaratory judgment 
will therefore be granted by which it will be adjudged 
that the plaintiff and others similarly situated are



15a

TV. P. Baskin—For Plaintiff—Direct

entitled to be enrolled and to vote in the primaries,” 
you don’t consider that in any way binding upon 
you? Did you know that was in there?

The Witness: Yes, sir; I ’ll have to—
The Court: Then you went and joined with your 

conferees and colleagues in adopting Rule 6, which 
says the qualifications for club membership shall be 
a white Democrat; and then in Rule 7 you provide 
for a dual system of voting, one for enrolled voters— 
that is, whites—and one for Negro voters with a 
registration certificate? Yon knowingly did that?

The Witness: The rules as adopted, Judge, were 
not unanimous by any means.

The Court: I don’t ask if the rules as adopted 
were unanimous; I asked you if you had a part in it, 
and you were a part of the committee of the drafters 
of that kind of a resolution?

Mr. Tison: Now, your Honor—
The Court: I ’m going to ask this witness what 

I want. Sit down.
Mr. Tison: I demand the right to—

[Tr. 30]
The Court: Sit down.
Mr. Tison: Object as a member of the bar.
The Court: I passed an order in this case. I 

gave a decision. This witness is head of the Demo­
cratic Party of South Carolina. I wanted to know 
why—

Mr. Tison: I suggest to your Honor that he has 
the right to refuse to answer your question.

The Court: All right. If he refuses to answer, 
let him do it. You refuse to answer, Mr. Baskin?



16a

IF. P. Baskin—For Plaintiff—Direct

The Witness: No, sir.
The Court: Do you answer it?
The Witness: Yes, sir; I ’ll answer any question 

you ask, Judge.
The Court: Answer it then.
The Witness: In the preparation of the rules, I 

had serious disagreement with some members of the 
committee, sir, serious disagreement, on question of 
policy that the party should follow, and I was over­
ruled in it.

The Court: Well, I want to be fair to you. I ’m 
asking you the question in the face of your attor­
ney’s objection, not—

The Witness: Yes, sir.
The Court: Not to show you devised this. I 

want to give you the opportunity to say you didn’t 
do it—that’s my understanding?

[Tr. 31]
The Witness: I have disagreed with some of the 

rules, yes, sir.
The Court: You bowed to the vote of the major­

ity?
The Witness: The vote of the majority put that 

on us, sir. The rules as they have come out, while 
I  have made certain statements, I  have never made 
a statement, sir, that a Negro could not be enrolled, 
and I have never made a statement he should be 
purged. I have been requested for statements along 
that line, but I have never made one, sir.

The Court: In other words, the rules are the rules 
of the convention and the executive committee and 
not your rules?



17a

TV. P. Baskin—For Plaintiff—Direct

The Witness: They are not my rules; yes, sir. 
The Court: Very good. Proceed.

Q. As to your county, what about your county, Senator 
Baskin? A. My county had several Negroes to offer to 
enroll and were enrolled and not purged.

Q. When was that? A. Before the books closed on the 
22nd of June.

Q. About how many, if you know? A. I don’t know— 
some several—those who did apply is what I understand.

The Court: I didn’t quite catch that. Did he 
say some Negroes had enrolled in his county prior 
to the closing of the books?

The Witness: Yes, sir; prior to the closing of 
the books and were not purged.

[Tr. 32]
The Court: Your county is what—for the record? 
The Witness: Lee County.
The Court: In Lee County, the custodian of the 

books—
The Witness: Yes, sir.
The Court: I assume with the acquiescence of the 

county committee?
The Witness: I don’t know.
The Court: In Lee County they allowed some 

Negroes to enroll.
Mr. Marshall: And, sir, they were not purged? 
The Court: They have not been purged ?
The Witness: No, sir; they have not been.
The Court: After enrolling.
Mr. Marshall: If your Honor please, for the bene­

fit of the record, as to the material facts necessary



W. P. Baskin—For Plaintiff—Direct

for the Elmore case, I could develop them again from 
Senator Baskin, but I would assume the other side 
would not contest the testimony of Senator Baskin 
and the stipulations in the Elmore case are accurate 
and correct for the purpose of this or any other case1?

The Court: What parts of them are pertinent? 
He’s described—they are very pertinent there—he 
doesn’t know whether the organization was a private 
club or exercising a public function—we know that 
now. That was the only issue in that case. I don’t 
think anybody in that case ever attempted to say 
the primary as conducted under state law had a dual

[Tr. 33]
system of enrollment, white or black. They said it 
was a private club, and the laws didn’t apply to it. 
That’s been decided now. If there’s anything in there 
material, you might call my attention to this.

Q. The only thing—you remember your testimony in the 
Elmore ease ? A. I don’t recall it right now.

Q. You recall it in general? A. Oh, yes.
Q. About how the party operated? A. Oh, yes.
Q. Has there been any fundamental difference in the 

way the party operates this year from your prior testi­
mony? A. No, sir; not generally. Operates the same as 
before.

The Court: Practically the same, with the excep­
tion of the new enrollment, designation of whites and 
Negroes, and the oath—those are about the material 
things ?

The Witness: Yes, sir; those are what I re­
member.



19a

W. P. Baskin—For Plaintiff—Cross

The Court: Dates and time—not material things?
The Witness: That’s correct.

Q. Since this time is it true that Democractic candidates 
have continued to be elected to office in that election? A. 
I am not in a position to tell you.

Q. Were any Republicans elected in 1946? A. No, none 
in the actual primary. Of course, there have been primaries 
since then, I think—at least elections—no primaries since 
then.

[Tr. 34]

Cross examination by Mr. Tison.
Q. Mr. Baskin, there is attached to the return, which is 

verified by you, a copy of the rules. That’s a correct copy? 
A. Yes, sir.

The Court: Now, that’s a correct copy as 
amended by the executive committee?

The Witness: Yes, sir.
Q. And the oath—

The Court: I just want to get for the record very 
definitely what was the oath prescribed by the con­
vention and what changes were made.

Mr. Tison: So do I. I want the record to show 
definitely and I want the record to show that this 
copy attached to the original return is before the 
Court in evidence.

The Court: That’s the one as amended?
Mr. Tison: Yes, sir.
The Court: But the original resolution had “ un­

derstand” in it and had “ religious” in the places 
indicated by Mr. Baskin in his testimony.



20a

W. P. Baskin—For Plaintiff—Cross

Mr. Tison: I wouldn’t know one thing about that. 
I ’m only offering the copy attached to the return.

The Court: Well, I would know; I ’ve gotten it 
from Mr. Baskin, and I of course believe him. He 
made the statement. I accept his testimony in per­
fectly good faith.

[Tr. 35]
Mr. Tison: I offer that in evidence so that there 

may be no question about the rules of the party be­
ing before the Court.

Q. When was the state convention of the Democratic 
party of South Carolina held? A. May 19, 1948.

Q. Where was it held? A. In Columbia.
Q. In the Township Auditorium? A. Yes.
Q. Was the convention open to the press and to the 

public? A. It was.
Q. Do you know whether or not it was attended by a 

member or representative of the Progressive Democratic 
party of this state? A. Do I know the member?

Q. No, do you know whether at that convention there 
was in the audience a member of the Progressive Demo­
cratic party? A. A member was pointed out to me. 
Whether it was a member or not, I don’t know.

Q. Pointed out to you as a member of the Progressive 
Democratic party? Was his name given to you? A. I don’t 
recall it. I  think it was, but I don’t recall it.

Q. All right. Were the rules as adopted at that con­
vention made public? A. They were.

[Tr. 36]
Q. Were they printed and distributed to anyone who 

asked for them ? A. They were.



21a

W. P. Baskin—For Plaintiff—Redirect

Q. Is the Progressive Democratic party of South Caro­
lina a different party from the Democratic party of South 
Carolina? A. We so understand it to be.

The Court: What did you say ?
Mr. Baskin: We do understand it to be.
The Court: Do you know anything about it?
The Witness: The only thing I know about it is 

what I see in the paper.
Q. You attended the National Convention at Philadel­

phia? A. I did.
Q. When? A. This past week.
Q. Did the Progressive Democratic Party from South 

Carolina have representatives seeking to be seated in the 
representatives of the Democratic party? A. They did.

Redirect examination by Mr. Marshall.
Q. Senator Baskin, since the Democratic convention 

adopted the rules, you say there’s been wide publicity given 
to the rules? A. They were published, and people who 
wanted them could write in for them.

Q. Since that time, has not the executive committee met
[Tr. 37]

more than once on the question as to what should be done 
about three particular rules involved in this case ? A. 1 
think they have met twice.

Q. Is it not true that those meetings have been given 
wide publicity in the daily press? A. I think the press has 
reported.

Q. When was the last meeting—the closed session? A. 
I can’t recall the date. I t ’s been about two or three weeks 
ago.



22a

W. P. Baskin—For Plaintiff—Redirect

Q. About two or three weeks ago—in Columbia, was it 
not! A. That’s correct.

Q. Was it not called for the express purpose, one of the 
express purposes, to consider what should be done about the 
three provisions of these rules involved in this case! A. It 
was called for the purpose of discussing* together the rules 
of the party in the light of various suggestions that have 
come to me by letters and otherwise.

Q. Didn’t those suggestions include those three rules? 
A. Oh, yes; it included those three and some others.

Q. Involved—have you as chairman of the state com­
mittee ever invited a Negro to any of your meetings at any 
time at any place? A. No, I have not.

Q. Have you ever had any Negroes at any of your meet­
ings at any time any place? A. I don’t recall any, except 
at the state convention some were in the audience around.

[Tr. 38]
Q. In the audience you saw some? A. Yes, sir.
Q. For example, have you ever invited any in your own 

county? A. No.
Q. Have they ever been welcome? A. Well, the party 

has had its meetings, and I, for one, don’t know of any that 
have ever been turned away.

Q. Have any come to be admitted? A. Come to be ad­
mitted ?

Q. Come to be admitted to the meeting? A. I can’t an­
swer—I just don’t know.

Q. Have they ever been invited? A. I don’t think they 
have ever been invited.

Q. Since or rather just prior to the Democratic Conven­
tion, where you say the Progressive party sent delegates 
seeking to be seated, had you ever invited a Negro to par-



23a

W. P. Baskin—For Plaintiff—Redirect

ticipate in your meetings, prior to the National Conven­
tion? A. Let me understand you—I want to be perfectly 
frank.

Q. What I am trying to get at, Senator Baskin, is it not 
true that the Progressive party, the members of that party, 
as Democrats, want just as much to be in the regular Demo­
cratic party as anybody else! Isn’t that true, of your own 
knowledge? A. I don’t know about that.

Q. After the decision in the Elmore case, did not repre-
[Tr. 39]

sentatives of the Progressive party seek to come into the 
Democratic party if they could get elected to the county con­
ventions and state conventions ? A. I understand in some, 
possibly one or two counties, they made some move to get in.

Q. And were they not excluded and prevented from 
taking part in those selections ? A. The only one I know of 
where they appeared, they took part in it.

Q. In the convention ? A. Took part in the club meeting 
organizing for the convention.

Q. Which club was that? A. I think it was Dillon 
County.

Q. Dillon County? A. I think so.
Q. Did you attend the meeting in your own county? A. 

I did.
Q. Were any Negroes there? A. None were there.
Q. Is it true that Dillon County selected Negroes to at­

tend the state convention? A. I can’t answer for you, be­
cause I just don’t know. None came.

Q. Isn’t it true you ruled they could not attend it be­
cause they were Negroes? A. No, no; I did not.

[Tr. 40]



24a

W. P. Baskin—For Plaintiff—Redirect

Q. Was that done? A. No, that was not done—not be­
cause they were Negroes.

Q They happened to be Negroes? A. Someone asked 
me for a statement as to what the rules of the party per­
mitted at that time, and the reorganization rules permitted 
only a member of the party to help reorganize.

Q. Don’t your rules also provide they be white Demo­
crats—also provide? A. You mean for membership?

Q. For any action in the party? A. Yes.
Q. Then, under your rules, I ask you again, is a Negro 

eligible to take part in any of your deliberations of any 
kind? A. Under the rules of the party the membership is 
composed of whites, and Negroes are permitted to vote— 
that’s under the party rules.

Q. Can they vote in the club meetings? A. Can they 
vote in the club meetings?

Q. In the club meetings ? A. They haven’t had any since 
then, and no question.

Q. They haven’t had any club meetings since the Elmore 
decision? A. Since the convention was reorganized.

Q. Well, prior to this 1948 convention, were Negroes 
permitted to take part in the club meetings ? A. I know of 
only one instance where they appeared.

[Tr. 41]
Q. That was Dillon? A. And they took part there.
Q. Then when they came to the convention they were 

denied seats? A. I can’t answer for you because I just 
don’t know.

Q. All right. Did you see any Negroes seated as dele­
gates at the state convention ? A. I did not, no.

Q. Well, get back to the other—did Negroes take part 
in county conventions this year? A. As far as I know,



25a

W. P. Baskin—-For Plaintiff—-Recross

none did, unless it was at Dillon, and I ’m not just sure 
about that. I have no knowledge of it.

Recross examination by Mr. Tison.
Q. Mr. Baskin, the executive committee opened and 

closes the book of the party at the time, is that correct? 
A. No, Mr. Tison, the rules provide specifically when the 
books are to open and close.

Q. All right. According to the rules, the books opened 
when? A. On the fourth Tuesday in May.

Q. And closed when? A. I think it’s the last Tuesday 
in June, or fourth Tuesday in June, the 22nd.

Mr. Baskin: Anything further ?
Mr. Marshall: Except this question: The books 

could be reopened, could they not?
Mr. Baskin: Certainly. They could be reopened 

by lawful authority.
[Tr. 42]

By Mr. Tison.

Q. As far as your party is concerned, could anyone re­
open these books except a convention of the Democratic 
party duly assembled? A. No.

The Court: Couldn’t the executive committee 
open the books?

The Witness: Judge, I think so. If the execu­
tive committee as a whole were to order them opened, 
I don’t think anybody would ever question it, but I 
doubt their authority to do it under these rules— 
certain things they get by with doing.

The Court: I think that’s a true statement— 
certain things the executive committee gets by with,



26a

W. P. Baskin—For Plaintiff—Recross

but you don’t think they have the authority, is that 
the substance of it?

The Witness: Sir?
The Court: Certain things you think the executive 

committee gets by with?
The Witness: I don’t say they do. I say they 

might get by if they were unanimous. Nobody would 
be heard to oppose it, and nobody would contest, I 
think—if some contest arises, might be some ques­
tion on it.

Q. Referring to allegation 2 of the return. I don’t 
know—it’s a material proposition, I had better refer to it 
in the testimony. In the return it is alleged—if there’s no 
objection, I ’ll lead him.

The Court: Go ahead.
[Tr. 43]

Mr. Tison: I t ’s very material.
Q. I t ’s alleged in the return, paragraph 2, that: “ In a 

number of counties no qualified negro electors have applied 
for enrollment” ? A. So I understand.

Q. “ In other counties qualified negro electors have en­
rolled * * * ” ? A. That’s correct.

Q. “ In other counties qualified negro electors have been 
refused the right to enroll” ? A. That’s right.

Q. And in the fourth: “ In other counties qualified negro 
electors, contrary to the rules of the Democratic Party of 
South Carolina, did enroll on the books of the party and 
thereafter their names under due procedure were purged 
from the rolls” ? A. That’s correct.

Q. Does the county chairman of each county and the 
state executive committee, who are the parties defendant in



W. P. Baskin—For Plaintiff—Recross

this suit, have any right under the rules of the party to 
open or close the books at any time contrary to that set out 
in the rules 1 A. They do not.

Q. Have they as members of the party anything to do 
with enrollment, or is there an enrollment committee in each 
county charged with that duty? A. Enrollment committee 
in each precinct who have the responsibility of enrollment.

[Tr. 44]
By Mr. Marshall.

Q. Senator Baskin, who has possession of the enroll­
ment books in each county now? A. The enrollment books, 
I think the rules provide they are to be turned over to the 
secretary for the purpose of having them copied.

Q. Turned over to the secretary for the purpose of having 
them copied? A. Let me check. I ’m not sure. I just don’t 
remember. (Producing papers.)

The Court: Page 4, rule 12, doesn’t that cover it? 
Mr. Marshall: On top of—13, if your Honor 

please, I think, the last paragraph.
The Witness (reading): “ * # * shall transmit 

the original roll to the County Chairman,”—it’s 
chairman instead of secretary—“ and shall forthwith 
cause to be made and shall certify a eopy thereof and 
file the same with the county chairman for public in­
spection at all times.” And then provides—

The Court: In other words, the county chairman 
is the custodian of the rolls-—

The Witness: After they are made.
The Court: Excepting on election day when they 

are turned over to managers, and then they later re­
turn them?



28a

David Brown—Plaintiff—Direct 

The Witness; Yes, sir.
Q. So the defendants in this case who are the county

[Tr. 45]
chairmen now have in their possession the enrollment 
books as of now ? A. At least they are presumed to have, 
as far as I know—yes.

(The Court recessed for a few minutes.)
Mr. Marshall: There’s one point I ’d like to cor­

rect, if there’s no objection. If I may recall the 
plaintiff for one question.

The Court: Yes.

D avid B row n , re c a lle d .

Direct examination by Mr. Marshall.
Q. Mr. Brown, directing your attention to the time—this 

year to the time when you enrolled on the books of Beau­
fort County, have you at any time since that time attended 
the meetings of the Progressive party! A. No, sir.

Q. Not since that time? A. No, sir.
Mr. Marshall: If your Honor please, before we 

rest, we would like the record to show, if we can get 
agreement from the other side, that the questions that 
were raised in the Elmore case as to the necessary 
factual basis for the decision in that case are not in 
issue in this case. I understand that counsel for the 
other side is willing to so stipulate so we’ll not have 
to put on that proof again.

The Court: To what extent?
Mr. Marshall: The parties controlled the elec-

[Tr. 46]



29a

David Brown—Plaintiff—Direct

tions over a long period of years, what happened to 
the repealing of the statutes, and so forth.

Mr. Tison: We consider ourselves entirely bound 
by the decision.

The Court: On the facts set out I
Mr. Tison: I t ’s immaterial, but it’s proper that 

I should call attention to the Court that the record is 
there’s never been elections except those by the 
Democratic party where they are scattered through­
out the years—here and there elections that have 
been held in the general assembly in which there 
were only a general election—I do not state that in 
any way to refute the findings of facts. I state to 
your Honor that we consider ourselves bound.

The Court: Those were not general state-wide 
elections where there were some vacancies of indi­
viduals elected.

Mr. Tison: I ’ll go further and state they could 
not have affected the findings of fact in Elmore 
versus Rice.

[Tr. 47]



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