Smith v Allwright Transcript of Record

    TRANSCRIPT OF RECORD

U N I T E D  S T A T E S

CIRCUIT COURT OF APPEALS
FIFTH CIRCUIT.

No. 10382

LONNIE E. SMITH,
Appellant,

versus

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

Appellees.

Appeal from the District Court of the United States for 
the Southern District of Texas.

(ORIGINAL RECORD RECEIVED JULY 9/42.)



INDEX
PAGE

Appellant’s Designation of Contents of Record on
Appeal ...................................................................  1

Caption ............................................................................... 3

Plaintiff’s First Amended Bill of Complaint...............  4
Appendix “A ”—Article 2956 of the Revised Civil

Statutes of Texas—Absentee V o tin g .......... 16

Appendix “B”—Article 2954 Qualifications for 
Electors in Article 6 of the Texas Constitu­
tion .................................................................  22

Article 2955 of the Revised Civil Statutes
of Texas ..................................................  22

Appendix “ C”—Summary and Comparison of 
Provisions, of Revised Statutes of Texas 
for Elections ..................................................  24

Appendix “D”—Summary of Election Statistics 28 
Texas Population—Voting Age .......................  58

Answer of defendants to Plaintiff’s First Amended
Bill of Complaint ................................................  59

Stipulation of Facts ........................................................  71
Exhibit marked Pltf. #  1—Instructions to Holders 

of Election, Harris County Democratic Ex­
ecutive Comm ittee......................................... 77

Findings of Fact and Conclusions of Law ................. 80

Final Judgment, entered 5/30/42 ............................  85



n

INDEX—Continued.
PAGE

TRANSCRIPT OF TESTIMONY:
Colloquy between Court and Counsel...................  88
Statement made by Mr. Marshall, Counsel for

Plaintiff .............................................................  92
Colloquy between Court and Counsel..................... 93
Statement made by Mr. Perry, Counsel for De­

fendant ............................................................... 95

Evidence for Plaintiff:
Testimony of Lonnie E. S m ith ..........................  96
Colloquy between Court and Counsel ..........  101
Testimony of S. E. Allwright .......................... 103
Statement made by Mr. Marshall, Counsel

for Plaintiff ............................................. HI
Statement made by Mr. Perry, Counsel for

Defendant ................................................. 116
Testimony of E. B. Germany ...........................  118
Deposition of C. A. B utcher...............................  129

Evidence for Defendants:
Testimony of Charles E. Kamp .....................  134

Appeal Bond .....................................................................
Notice of Appeal ................................................................ H8
Clerk’s Certificate ..............................    H9



DESIGNATION OF CONTENTS OF RECORD ON
APPEAL.

Filed June 6, 1942. •

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE SOUTHERN DISTRICT OF TEXAS, 

HOUSTON DIVISION.

Civil Docket No. 645.

LONNIE E. SMITH,

Plaintiff,
versus

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

Defendants.

Plaintiff, Lonnie E. Smith, hereby designates the follow­
ing portions of the record, proceedings and evidence to be 
contained in the record on his appeal taken in this cause 
to the Circuit Court of Appeals for the Fifth Circuit:

1. Plaintiffs Amended Complaint, filed April 25, 1942.

2. Appendixes A, B, C and D of Original Complaint, 
filed November 15, 1941.

3. Defendants’ Amended Answer, filed April 25, 1942.

4. Depositions of E. B. Germany and C. A. Butcher, 
filed April 25, 1942.



2

5. Testimony of Charles. E. Kamp, filed April 25, 1942.

6. Stipulations of Facts, for both plaintiff and defend­
ant, filed April 25, 1942.

7. Complete Question and Answer Transcript of the 
evidence as prepared and filed by J. E. McGinness, Official 
Court Reporter.

8. Plaintiff’s Exhibit Number One, filed April 25, 1942.

9. Findings of Facts and Conclusions of Law, filed May 
11, 1942.

10. Judgment entered May 30, 1942.

11. Notice of Appeal filed June 5, 1942.

12. Appeal Bond.

13. This designation of Contents of Record and agree­
ment thereto.

Dated this 5th day of June, 1942.
THURGOOD MARSHALL, 

(Thurgood Marshall)
W. J. DURHAM,

(W. J. Durham)
H. S. DAVIS, JR.,

(H. S. Davis, Jr.) 
Attorneys for Plaintiff- 

Appellant.
409% Milam Street, 

Houston, Texas.

Service of a true copy of the foregoing designation of 
contents of record on appeal is hereby acknowledged, and



3

it is agreed that the foregoing portions of the record, pro­
ceedings and evidence in the case constitute all of the 
record, proceedings and evidence on the trial of the case, 
omitting only formal matters and repetitions, and the de­
fendants, S. E. Allwright and James J. Liuzza, do not de­
sire to designate any further material to be included in the 
record.

Signed this 5th day of June, 1942.
GLENN A. PERRY,

(Glenn A. Perry)
Attorney for Defendant.

3 CAPTION.

In the District Court of the United States for the Southern 
District of Texas, Holding Sessions at Houston.

Lonnie E. Smith, Suing on Behalf of Himself and on Behalf 
of Other Qualified Negro Voters in the State of Texas, 
Plaintiff,

vs. Civil Action No. 645.
W. D. Miller, County Clerk of Harris County, Texas, and 

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

Be It Remembered, That in the above entitled and num­
bered cause, lately pending in said Court, in which Final 
Judgment was rendered at the Regular February, 1942, 
Term of said Court, to-wit: On May 30, 1942, the Honor­
able Thomas M. Kennerly, Judge of the District Court of 
the United States for the Southern District of Texas, pre­
siding, the following proceedings were had, to-wit:



4

FIRST AMENDED BILL OF COMPLAINT.

4 Filed April 25, 1942.

(Title Omitted.)

To the Honorable Judge of said Court:
Now comes the plaintiff, Lannie E. Smith, suing on be­

half of himself and all other qualified Negro voters simi­
larly situated in the State of Texas who are believers in 
and adherents to the tenets and principles of the Demo­
cratic Party, and with leave of the Court first had and 
obtained, files this, Plaintiffs First Amended Bill of Com­
plaint in lieu of and in substitution of the Original Bill of 
Complaint heretofore filed in this Cause on the 15th day 
of November, 1942, and for such Amended Complaint he 
complains of the defendants, S. E. Allwright, Election 
Judge, and James J. Liuzza, Association Election Judge, 
48th Precinct of Harris County, Texas, acting as adminis­
trative officers of the State of Texas, and who unlawfully 
denied the plaintiff and other qualified Negro voters the 
right to vote in the statutory Democratic primary election 
in Texas on July 27, 1940, and August 24, 1940, solely be­
cause of race or color; and respectfully shows to this Hon­
orable Court as follows:

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 
sum of $3,000.00. The jurisdiction of this Court is also 
invoked under subdivision 11 of Section 41 of Title 28 of 
the United States Code, this being an action to enforce the



5

right of a citizen of the United States to vote in the State 
of Texas. The juridiction 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 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 of the United States, viz., Sections 2 and 4 of Article 
I, and Amendments Fourteen, Fifteen and Seventeen to 
said Constitution, and of rights secured by laws of the 
United States, viz., Sections 31 and 43 of Title 8 of the 
United States Code, all of which will appear 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 question 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 qualified electors and denied the right to cast 
ballot at the Democratic primary elections in Texas, 
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. That all parties to this action, both plaintiff and de­
fendants are citizens of the United States and of the State 
of Texas, and are resident and domiciled in said State.

4 / That the plaintiff, Lonnie E. Smith, is colored, per­
son of African descent and of Negro blood. He is a native 
born citizen of the United States, is more than twenty-one 
(21) years of age, has resided in Precinct No. 48 in Harris 
County, Texas, continuously for a period of more than six



fi

(6) years next preceding the filing of this complaint and 
has his poll tax receipt for the year of 1939, issued prior 
to January 31, 1940, as required by the laws of the State 
of Texas. Plaintiff at all times mentioned herein was 
and is a duly and legally qualified elector under the Con­
stitution and laws of the United States and of the State 
of Texas, and is subject to none of the disqualifications 
provided for voting under the Constitution and laws of 
the State of Texas or of the United States. Plaintiff is a 
believer in the tenets of the Democratic Party; plaintiff 
has never voted for any other candidates than those of the 
Democratic Party. He was at all times complained of 
herein and is now ready and willing to take the pledge 
required by law in Texas of all persons voting in the Dem­
ocratic Primary elections.

5. That this is a class action authorized by Rule 23-a 
of the Rules of Civil Procedure of the District Courts of 
the United States. The rights involved are of common 
and general interest to the members of the class repre­
sented by the plaintiff, namely, Negro citizens of the 
United States and residents of the State of Texas simi­
larly situated who are duly qualified electors under the 
Constitution and laws of the United States and of the State 
of Texas. 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, without supecifi- 
cally naming said members herein.

6. That on the 27th day of July, 1940, a Statutory Dem­
ocratic primary election was held in the State of Texas, 
and in Harris County in said State, for nomination of can­
didates for United States Senator, Members of the United 
States of Representatives, Governor and other officers pur­
suant to the mandate of Article 3100, et seq., of the Revised 
Civil Statutes of Texas. That prior to the 1940 Statutory



7

Democratic Primary election, defendant S. E. Allwright 
was duly appointed and qualified as Judge of Elections 
for Precinct No. 48 in Harris County, Texas, and prior to 
said election defendant James J. Liuzza was duly ap­
pointed and qualified as Associate Judge of Elections in 
Precinct No. 48; both of said defendants were appointed 
and acted solely under authority of Articles 3104 and 3105 
of the Texas Revised Civil Statutes.

7. That the Constitution of the United States secures 
to qualified voters within the Stae of Texas the right to 
cast their ballots at congressional elections. Pursuant to 
the provisions of Sections 2 and 4 of Article I, and Amend­
ment Seventeen to the Constitution of the United States, 
the State of Texas has prescribed the qualifications for 
electors in Article 6 of the Texas Constitution and Article 
2958 of the Revised Civil Statutes of Texas. (See Ap­
pendix B, attached hereto and prayed to be read as a part 
hereof.)

8. That in addition, the State of Texas exercising an 
essential governmental function has established, both by 
constitutional provisions and statutes, elaborate machin­
ery for the exercise of the elective franchise. Included 
therein are three steps, namely, the listing of qualified 
voters, selection of candidates and the general elections. 
Complete and detailed requirements for the listing of 
qualified electors and the holding of elections are estab­
lished by statutes which have been codified in the Revised 
Civil Statutes of Texas, (Articles 2923-3165). All elections 
to public office held in the State of Texas are held under 
the authority of these statutes.

9. Primary elections in Texas were created by statute 
and have been maintained solely by authority of the stat­
utes of the State of Texas. The present election laws of 
Texas originated with the so-called “Terrell Law” , being



8

“An Act to regulate elections and to prescribe penalties 
for its violation (General Laws of Texas, 1903, Chapter 
51, p. 133). Sections 82 to 107 of this statute set out the 
requirements for the holding of primary elections. In 
1905 that Statute was repealed and in place thereof Chap­
ter 11 of the General Laws of Texas, 1905, was enacted. 
These statutes established almost identical requirements 
for both the “primary” and “general” elections as integral 
parts of the election machinery for the State of Texas. A 
comparative table of present election laws is set out in Ap­
pendix C, attached hereto and prayed to be read as a part 
hereof as though set out in full. Since 1905, this legisla­
tion has constituted the sole authority for the conduct of 
all elections, primary, special and general, in the State of 
Texas.

10. That candidates for the office of United States Sen­
ator from Texas can only be placed on the official ballot 
in the general election after nomination at the statutory 
primary election. Elections of Senators from Texas to the 
Congress of the United States are regulated by Articles 
3086 to 3089 of the Revised Statutes of Texas, Articles 
3089 and 3090, Article 3089 of which provides: “The name
of no candidate for United States Senator shall be placed 
upon the official ballot of any party or of any organization 
as the nominee of said party or organization for said office 
unless the said candidate has been duly nominated and 
selected as herein provided” , and, “each party desiring to 
nominate a candidate for United States Senator shall, if 
such election is to be held on the first Tuesday after the 
first Monday in November of any year, nominate or select 
such candidates at a general primary election to be held 
throughout the State on the fourth Saturday in July next 
preceding such election for United States Senator” .

11. That Article 3101 of the Revised Civil Statutes of 
Texas requires that candidates for the United States Con­



9

gress, Governor, and State officers of political parties that 
cast one hundred thousand votes or more be nominated in 
statutory primary elections. The Democratic Party is the 
only organized political party in Texas that cast more than 
one hundred votes at the last general election prior to July 
27, 1940.

12. That since 1859 nominees of the Democratic ‘ Party 
have been elected in all major elections with two excep­
tions. Tables showing the results of elections in Texas 
from 1859 to 1940, are filed herewith as Appendix D, and 
prayed to be read as a part hereof as though set out in 
full.

13. That pursuant to Chapter 12 and 13 of Title 50 of 
the Revised Civil Statutes of Texas it was required that 
the Democratic primary elections be held on the fourth 
Saturday in July, 1940, and on the fourth Saturday in Au­
gust, 1940, being respective, July 27, 1940, and August 24, 
1940. The holding of this Primary election was mandatory 
under the laws of Texas as an integral part of the election 
machinery of the State of Texas and as an essential gov­
ernmental function of said State of Texas. Article 2956 of 
the Revised Civil Statutes of Texas authorized absentee 
voting as in general elections; Articles 2980-2981 specified 
the form of ballot and the manner of its marking as other 
articles do for the general elections; Article 2984 fixed the 
number of ballots to be provided; Articles 2986, 1987, and 
2990 permitted the name of the voting booths, guard rails, 
and ballot boxes which by Articles 2986-2997 of the Re­
vised Civil Statutes of Texas are provided for general elec­
tions; Article 2997a, as amended by Acts 1937, ch. 52, 
makes identical provisions for use of voting machines in 
both “primary” and “general” elections in Texas; Articles 
3003-3-25 provided elaborately for the purity of the ballot 
box in primary elections; Article 3128 commanded that 
the sealed ballot boxes be delivered to the defendant as



10

county clerk after the Primary election as is provided in 
Article 3028 for general elections; and Articles 3146-3152 
conferred jurisdiction of primary election contests upon 
State District Courts as is provided by Articles 3041-3075 
in case of General elections.

14. That defendants S. E. Allwright as Election Judge 
and James J. Liuzza as Associate Election Judge on July 
27, 1940, and August 24, 1940, were appointed, qualified, 
and acting as administrative officers of the State of Texas 
solely by virtue of Articles 3104 and 3105 of the Revised 
Civil Statutes of Texas. Both of said defendants herein, 
at all times mentioned herein, were State officers within 
the meaning of the Constitution of the United States. On 
the above dates the defendants, as Election Judge and As­
sociate Election Judge, were under a positive statutory 
duty to administer oaths, to preserve order at the election, 
to appoint special officers to enforce the observance of 
order and to make arrests, as judges of general elections 
are authorized and required to do. Defendants Allwright 
and Liuzza were also required to compel the observance 
of the law that prohibits loitering or electioneering within 
one hundred feet of the entrance to the polling place, and 
to arrest, or cause to be arrested anyone engaged in the 
work of conveying voters to the polls in carriage or other 
conveyances, except as permitted by statute. All such po­
lice powers are derived from and exercised under the sov­
ereign authority of the State of Texas.

15. That the defendants Allwright and Liuzza as ad­
ministrative officers of the State of Texas were required 
to take the same oath as officials of “general elections” 
pursuant to Article 3104 of the Revised Civil Statutes of 
Texas which provides in part that: “ * * * such presiding
judge shall select an associate judge and a clerk to assist 
in conducting the election; two supervisors may be chosen 
by any one-fourth of the party candidates, who, with the



11

judges and clerks, shall take the oath required of such 
officers in general election * * Defendants were under 
a duty to receive the vote of plaintiff and the votes of all 
other qualified electors presenting themselves to vote on 
the dates set for the primary election. Article 217 of the 
Penal Code of the State of Texas provides: “Any judge
of any election who shall refuse to receive the vote of any 
qualified elector, who, when his vote is objected to shows 
by his own oath that he is entitled to vote, or who shall 
shall refuse to deliver an official ballot to one entitled to 
vote under the law, or who shall wilfully refuse to receive 
a ballot after one entitled to vote has legally folded and 
returned the same, shall be fined not to exceed Five Hun­
dred Dollars.” By Article 231 of the Penal Code of the 
State of Texas the term “election” as used in Article 217 
and other articles of Chapter IV thereof, “means any elec­
tion, either general or special, or primary * * *.”

16. That Article 2955 of the Revised Civil Statutes of 
Texas sets forth identical qualifications for voting in both 
“primary” and “general” elections as follows:

“ Qualifications for Voting.—Every person subject to 
none of the foregoing disqualifications who shall have at­
tained the age of twenty-one years, and who shall be a citi­
zen of the United States, and who shall have resided in this 
State one year next preceding an election, and the last six 
months within the district or county in which he or she 
offers to vote, shall be deemed a qualified elector. The 
electors living in an unorganized county may vote at an 
election precinct in the county to which such county is at­
tached for judicial purposes; provided, that any voter who 
is subject to pay a poll tax under the laws of the State of 
Texas or ordinances of any city or town in this State shall 
have paid said tax before offering to vote at any election 
in this State and holds a receipt showing that said poll 
tax was paid before the first day of February next preced­



12

ing such election; and, if said voter is exempt from paying 
a poll tax and resides in a city of ten thousand inhabitants 
or more, he or she must procure a certificate showing his 
or her exemptions, as required by this title.

“ If such voter shall have lost or misplaced said tax re­
ceipt he or she shall be entitled to vote upon making and 
leaving with the judge of the elections an affidavit that 
such tax was paid by him or her, or by his wife or by her 
husband before the said first day of February next preced­
ing such election at which he or she offers to vote, and 
that said receipt has been lost or misplaced. In any elec­
tion held only in a subdivision of a county for the purpose 
of determining any local question or proposition affecting 
only such subdivision of the county, then, in addition to 
the foregoing qualifications, the voter must have resided 
in said county for six months next preceding such election. 
The provisions of this article as to casting ballots shall ap­
ply to all elections including general, special and primary 
elections.”
r%

17. That the plaintiff Lonnie E. Smith was, on the 
above-mentioned primary election days, and is, subject to 
none of the disqualifications of voters, as set out in Section 
1 of Article 6 of the Texas Constitution and Section 2954 
of the Revised Civil Statutes of Texas, i. e., he was and is 
over twenty-one years of age; he is not and never has been 
an idiot or lunatic; he is not and never has been a pauper 
supported by any county and has never been convicted of 
any felony. Plaintiff has met all qualifications for voting 
in the said primary election as set out in Article 2955 of 
the Revised Civil Statutes of Texas, i. e., he is a native born 
citizen of the United States, has resided in the State of 
Texas for more than one year preceding said elections and 
for more than six months within the district wherein he 
sought to vote. Plaintiff paid his poll tax prior to January



13

31, 1940, and holds receipt showing said poll tax was paid 
prior to January 31, 1940.

18. That pursuant to Article 2975 of the Revised Civil 
Statutes of Texas the County Collector of Taxes of Harris 
County, Texas, prepared a list of qualified voters for said 
County who had paid their poll tax prior to January 31, 
1940, which included the name of the plaintiff herein. A 
copy of this list was, pursuant to Article 3121 of the Re­
vised Statutes of Texas, delivered to the defendants All- 
wright and Liuzza in the official capacities as Judge and 
Associate Judge of Primary Elections.

19. That on the 27th day of July, 1940, and on the 24th 
day of August, 1940, there was held in the State of Texas 
and in Harris County in said State, a primary election for 
nomination of Democratic candidates for the United States 
Senate, House of Representatives and various State offices. 
Under Article 217 and 231 of the Penal Code of the State 
of Texas the defendants Allwright and Liuzza were under 
a duty to deliver an official ballot to all qualified electors 
who presented themselves at the polling place during the 
hours that the polling place was open. Plaintiff, on July 
27, 1940, and during the regular hours when the polling 
place at Precinct 48 in Harris County was open on that 
date, presented his poll tax receipt to defendants Allwright 
and Liuzza with the request that he be permitted to cast 
his ballot in said primary election. The defendants re­
fused to give the plaintiff a ballot or to permit him to cast 
a ballot in said election solely because of the race and color 
of the plaintiff.

20. That the defendants Allwright and Liuzza conspired 
with each other and others unknown to deprive the plain­
tiff and other qualified Negro electors of the State of Texas



14

of the right to vote in the Democratic primary election held 
in Harris County, Texas, on July 27, 1940, in violation of 
the United States Constitution and laws.

21. That the actions of defendants herein in denying 
to the plaintiff and other qualified Negro electors of the 
State of Texas 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 abridgement of a right established and guar­
anteed by the United States Constitution; i. e., Sections 2 
and 4 of Article I, and Amendments Fourteen, Fifteen and 
Seventeen thereto.

22. There is between the parties an actual controversy 
as hereinbefore set forth.

23. 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.

24. That 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 
of; they have no plain adequate or complete remedy to 
redress 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 plain­
tiff and those similarly situated could be remitted would 
be attended by such uncertainties and delays as to deny 
substantial relief, would involve multiplicity of suits, cause



15

further irreparable injury, damage, vexation and incon­
venience to the plaintiff and those similarly situated.

Wherefore, 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 here in controversy, in order that such declaration shall 
have the force and effect of a final judgment or decree.

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 Texas, solely on account of their race or color, is uncon­
stitutional as a violation of Sections 2 and 4 of Article I, 
and Amendments Fourteen, Fifteen and Seventeen of the 
United States Constitution.

3. That this Court issue a permanent injunction forever 
restraining and enjoining the defendants, and each of them, 
from denying qualified Negro elector the right to vote in 
Democratic primary elections in Texas 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

*



1G

may appear to the Court to be just and equitable in the 
premises.

LONNIE E. SMITH,
Plaintiff.

W. J. DURHAM,
(W. J. Durham)

Sherman, Texas,
Attorney for Plaintiff.

THURGOOD MARSHALL,
(Thurgood Marshall)

69 Fifth Avenue,
New York, New York,

CARTER W. WESLEY,
(Carter W. Wesley)

2418 Leeland Avenue,
Houston, Texas,

H. S. DAVIS, JR.,
(H. S. Davis, Jr.)

409% Milam Street,
Houston, Texas,

Of Counsel.

15 APPENDIX “A ” .

Article 2956. Absentee Voting.

Subdivision 1. Any qualified elector of this State who 
is absent from the county of his residence, or because of 
sickness or physical disability cannot appear at the poll 
place in the election precinct of his residence, on the day 
of holding any general, special, or primary election, may, 
nevertheless, cause his vote to be cast at such election in 
the precinct of his residence by compliance with one or 
other of the methods hereinafter provided for absentee 
voting.



17

Subdivision 2. Such elector shall make application for 
an official ballot to the county clerk in writing signed by 
the elector, or by a witness at the direction of said elector 
in case of latter’s inability to make such written applica­
tion because of physical disability. Such application shall 
be accompanied by the poll tax receipt or exemption certi­
ficate of the elector, or, in lieu thereof, his affidavit in 
writing that same has been lost or mislaid. If the ground 
of application be sickness or physical disability by reason 
of which the elector cannot appear at the polling place on 
election, a certificate of a duly licensed physician certify­
ing as to such sickness or physical disability shall accom­
pany the application.

Subdivision 3. At any time not more than twenty (20) 
days, nor less than three (3) days, prior to the date of 
such an election, such elector making his personal appear­
ance before the county clerk of the county of his resi­
dence at his office and delivering to such clerk his appli­
cation aforesaid, shall be entitled to receive from said clerk 
one official ballot which has been prepared in accordance 
with law for use in such election, which ballot is then and 
there, in the office of said clerk of said county, and in the 
presence of said clerk and of no other person, except the 
witness who is authorized to assist elector in certain c&ses 
as hereafter provided, to be marked by the elector, or by 
said witness in case of physical disability of elector, so as 
to conceal the marking, and same shall, in the presence 
of the clerk, be deposited in a ballot envelope furnished 
by said clerk, which envelope shall bear upon the face 
thereof the name, official title and post office address of 
such county clerk, and upon the other side a printed affi­
davit in substantially the following form, to be filled out 
and signed by the elector; provided, however, that in case 
of the physical disability of elector preventing him from 
filling out and signing such affidavit, then the witness who 
assisted the elector in marking his ballot shall fill out and



18

sign affidavit for and in behalf of elector and shall also 
sign his, witness’ name, as prescribed in the following 
form:

State of .............................
County of .........................

I,  , do solemnly swear that I am a Resi­
dent of Precinct No.........i n ........................County, and am
lawfully entitled to vote at the election to be held in said
precinct on t h e ........d a y ........................, 19. .. that I am
prevented from appearing at the polling place in said Pre­
cinct on the date of such election because of (illness), 
(physical disability), (or because of absence from County),
............................. (elector to signify one of the foregoing
reasons); that the enclosed ballot expresses my wishes, in­
dependent of any dictation or undue persuasion of any 
person; that I did not use any memorandum or device to 
aid me in the marking of said ballot.

Signature of Elector,
By ........................................ ,

Name of Witness who assisted 
elector in event of physical 
disability.

Subdivision 4. At any time not more than twenty (20) 
days, nor less than three (3) days prior to the date of such 
an election, such elector who makes written application for 
a ballot as provided for in Subdivision 2 hereof, shall be 
entitled to have his ballot cast at such an election on com­
pliance with the following provisions:

The application, including fifteen cents (15^) to cover 
postage, shall be mailed to the County Clerk of the elector’s 
residence whose duty it shall be forthwith to mail to such 
elector a blank official ballot and ballot envelope as pro­
vided in Subdivision 3, which ballot shall be marked by



19

elector, or by witness at the direction of said elector in 
cas6 of the latter’s inability to mark such ballot because of 
physical disability, in the presence of a Notary Public or 
other persons qualified under the law to make acknowledg­
ments, and in the presence of no other person except said 
witness and/or such officer, and in such manner that such 
officer cannot know how the ballot is marked, and such 
ballot shall then in the presence of such officer be folded 
by the elector or by said witness in case of physical dis­
ability of said elector, deposited in said envelope, the en­
velope securely sealed, the indorsement filled out, signed 
and sworn to by the elector, or in case of physical dis­
ability, then by the said witness for and in behalf of said 
elector, and certified by such officer and then mailed by 
said officer, postage prepaid, to the County Clerk.

Subdivision 5. Upon receipt of any such ballot sealed 
in its ballot envelope duly indorsed, the clerk shall keep 
the same unopened until the second day prior to such elec­
tion, and shall then enclose same together with the elec­
tor’s application and accompanying papers, in a large or 
carrier envelope which shall be securely sealed and in­
dorsed with the name and official title of such clerk, and 
the words “this envelope contains an absentee ballot, and 
must be opened only at the polls on election day” , and the 
clerk shall forthwith mail same, or deliver it in person, to 
the presiding judge of election, or to any assistant judge 
of election, in said precinct.

And ballots mailed out by the county clerk within the 
legal time, but not received back by him on or before the 
third day prior to the election on the day of election, shall 
not be voted, but shall remain in the custody of the county 
clerk during the thirty (30) day period provided in Subdi­
vision 6.



20

Subdivision 6. On the day of such election, and in the 
presence of the election officers, and the supervisors, if any, 
one of the judges of election shall, between the hours of 
2:00 and 3:00 o’clock open the carrier envelope only, an­
nounce the elector’s name and compare the signature upon 
the application with the signature upon the affidavit on 
the ballot envelope. In case the election board finds the 
affidavits duly executed, that the signatures correspond, 
that the applicant is a duly qualified elector of the pre­
cinct, and that he has not voted in person at said election, 
they shall open the envelope containing the elector’s ballot 
in such manner as not to deface or destroy the affidavit 
thereon, take out the ballot therein contained without per­
mitting same to be unfolded or examined and having in­
dorsed the ballot in like manner as other ballots are re­
quired to be indorsed, deposit the same in the proper ballot 
box and enter the elector’s name in the poll list the same 
as if he had been present and voted in person. If the ballot 
be challenged by any election officer, supervisor, party 
challenger, or other person, the grounds of challenge shall 
be heard and decided according to law, including the con­
sideration of any affidavits submitted in support of or 
against such challenge. If the ballot be admitted, the 
words “absentee voter” shall be set down opposite the 
elector’s name on the poll list. If the ballot be not ad­
mitted, there shall be indorsed on the back thereof the 
word “rejected” , and all rejected ballots shall be enclosed, 
securely sealed, in an envelope on which words “rejected 
absentee ballots” have been written, together with a state­
ment of the precinct and the date of election, signed by the 
judges and clerks of election and returned in the same 
manner as provided for the return and preservation of of­
ficial ballots voted at such election. In all cases the appli­
cation poll tax receipt or exemption certification, ballot en­
velope and the affidavits and certificates accompanying 
same shall be returned by the officers of election to the 
country clerk who shall keep all such papers except poll



21

tax receipts and exemption certificates for one (1) year 
and shall return poll tax reecipts and exemption certifi­
cates to the voter at any time after the same have been re­
turned to him except in case of challenge when such poll 
tax receipts and exemption certificates shall be held thirty 
(30) days and as much longer thereafter as any Court or 
reviewing authority may direct.

Subdivision 7. Whenever it shall be made to appear to 
the officers of elections that any elector whose ballot has 
been marked and forwarded as hereinbefore provided, has 
since died, then the ballot of such deceased voter shall not 
be deposited in the ballot box, but shall be returned as in 
the case of other rejected ballots; provided, however, the 
casting of the ballot of a deceased voter shall not invalidate 
the election.

Subdivision 8. The county clerk shall post at a con­
spicuous place in his office, for public inspection, a com­
plete list of those to whom ballots have been delivered or 
sent out under this Article, stating thereon the elector’s 
name, age, occupation, precinct of residence and poll tax 
number or exemption certificate number, and the date on 
which ballot was delivered or mailed which list shall be 
kept up from day to day. The applications, poll tax re­
ceipts, exemption certificates, or affidavits of loss thereof, 
shall also be open to public inspection at regular office 
hours, but under such reasonable rules and regulations as 
the county clerk may adopt to safeguard the same and to 
reasonably economize his own time while they are in his 
keeping.

Subdivision 9. Any of the duties by this Article com­
mitted to the county clerk may be performed at the county 
clerk’s office by one or more deputies specially designated 
in writing by the country clerk to act in connection with 
the election stated in the appointment.



22

Subdivision 10. The county clerks, their deputies and 
officers acting under this Article shall be considered as 
judges or officers of election within the scope of Articles 
215 to 231, inclusive, of the Penal Code of Texas, and all 
amendments thereto, and be punishable as in said Articles 
respectively, provided in the case of judges or officers of 
election. Acts 1905, 1st C. S., p. 520; Acts 1917, 1st C. S., 
p. 62; Acts 1920, 4th C. S., p. 10; Acts 1921, p. 217; Acts 
1923, p. 318; Acts 1931, 42nd leg., p. 180, ch. 105; Acts 
1933, 43rd Leg., p. 5, ch. 4; Acts 1935, 44th Leg., p. 700, 
ch. 300, Section 1; Acts 1935, 44th Leg., 2nd C. S., p. 1700, 
ch. 437, Section 1.

18 APPENDIX “B” .

Article 2954. Not Qualified to Vote:

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

1. Persons under twenty-one years of age.

2. Idiots and lunatics.

3. All paupers supported by the county.

4. All persons convicted of any felony, except those re­
stored to full citizenship and right of suffrage, or pardoned.

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

Article 2955. Qualifications for Voting:

Every person subject to none of the foregoing disqualifi­
cations who shall have attained the age of twenty-one years



23

and who shall be a citizen of the United States, and who 
shall have resided in this State one year next preceding an 
election, and the last six months within the district or 
county in which he or she offers to vote, shall be deemed 
a qualified elector. The electors living in an unorganized 
county may vote at an election precinct in the county to 
which such county is attached for judicial purposes; pro­
vided that any voter who is subject to pay poll tax under 
the laws of this State or ordinances of any city or town in 
this State, shall have paid said tax before offering to vote 
at any election in this State and holds a receipt showing 
that said poll tax was paid before the first day of February 
next preceding such election; and, if said voter is exempt 
from paying a poll tax and resides in a city of ten thousand 
inhabitants or more, he or she must procure a certificate 
showing his or her exemptions, as required by this title. If 
such voter shall have lost or misplaced said tax receipt, he 
or she shall be entitled to vote upon making and leaving 
with the judge of the election an affidavit that such tax 
was paid by him or her, or by his wife or by'her husband 
before said first day of February next preceding such elec­
tion at which he or she offers to vote, and that said receipt 
has been lost or misplaced. In any election held only in a 
subdivision of a county for the purpose of determining any 
local question or proposition affecting only such subdivision 
of the county, then in addition to the foregoing qualifica­
tions, the voter must have resided in said county for six 
months next preceding such election. The provisions of this 
article as to casting ballots shall apply to all elections in­
cluding general, special and primary elections. Act 1st C. 
S. 1905, p. 520; Acts 1st C. S. 1917, p. 62; Acts 4th C. S. 1920, 
p. 10; Acts 1921, p. 217; Acts 1923, p. 318.



“APPENDIX C.”

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

Election Labeled “General Election” and Held 
November 5, 1940.

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

2. Date fixed by Article 2930.

3. Article 2930 fixes time of day for hold­
ing election.

4. Article 2939 requires that all election of­
ficials shall be qualified voters.

5. Article 2955 fixes same qualifications for 
voting in this election as in “statutory 
primary election” .

Election Labeled “Primary Election” Held 
July 27, 1940.

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

2. Date fixed by Article 3102.

3. Article 2930 fixes time of day for hold­
ing election.

4. Article 2939 requires that all election of­
ficials shall be qualified voters.

5. Article 2955 fixes same qualifications for 
voting in this election as in election la­
beled “general election” .



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

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

8. Articles 2980-2981 provide form of bal­
lots and how to mark ballot.

9. Article 2984 fixes the number of ballots 
provided.

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

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

12. Power of judges fixed by Article 3002 as 
follows:

6. Article 2956 (Absentee Voting) is the 
same for this election as for general elec­
tion.

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

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

9. Article 3109 fixes number of ballots to be M 
provided.

10. Article 3120 provides that voting booths, 
guard rails, and ballot boxes of “general 
election” may be used in compulsory stat­
utory primary election.

11. Article 3104 requires officials of this elec­
tion to take same oath as officials of “gen­
eral election” .

12. Power of judges fixed by Article 3105 as 
follows:



Election Labeled “ General Election” and Held 
November 5, 1940.

“Judges of election are authorized to 
administer oaths to ascertain all facts 
necessary to a fair and impartial election. 
The presiding judge of election, while in 
the discharge of his duties as such, shall 
have the power of the District Judge to 
enforce order and keep the peace. He 
may appoint special peace officers to act 
as such during the election and may 
issue warrants of arrest for felony, mis­
demeanor or breach of peace committed 
at such election, directed to the sheriff 
or any constable of the county, or such 
special peace officer, who shall forthwith 
execute any such warrants, and, if so 
ordered by the presiding judge, confine 
the party arrested in jail during the 
election or until the day after election, 
when his case may be examined into, 
before some magistrate, to whom the 
presiding judge shall report it; but the

Election Labeled “Primary Election” Held 
July 27, 1940.

“Judges of primary elections have the 
authority, and it shall be their duty, to 
administer oaths, to preserve order at 
the election, to appoint special officers to 
enforce the observance of order and to 
make arrests, as judges of general elec­
tions are authorized and required to do. 
Such judges and officers shall compel the 
observance of the law that prohibits loit­
ering or electioneering within one hun­
dred feet of the entrance of the polling 
places, and shall arrest, or cause to be ar­
rested, any one engaged in the work of 
conveying voters to the polls in carriages 
or other mode of conveyance, except as 
permitted by this title.”



party arrested shall first be permitted to 
vote, if entitled to do so, unless he is 
drunk from the use of intoxicating liquor, 
then he shall not be permitted to vote 
until he is sober.”

13. Articles 3003 to 3025 contain elaborate 
provisions for securing purity of the bal­
lot box.

14. Article 3028 requires delivery of sealed 
ballot boxes containing ballots, etc., to 
County Clerk after this election.

15. Article 3041 provides for contest of this 
election before District Court.

13. Article 3122 provides:
“The same precautions required by law 

to secure the purity of the ballot box in 
general election, in regard to the ballot 
boxes, locking the ballot boxes, sealing 
the same, watchful care of them, the se- 
crecy in preparing the ballot in the booth 
or places prepared for voting shall be ob­
served in all primary elections.”

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

15. Article 3146 provides for contest of this 
election before District Court.



Date
1845
1847
1848
1849
1851
1852
1853
1855
1856
1857
1859
1860
1861
1863
1866
1869
1872

APPENDIX D.

General
General
General
General
General
General
General
General
General
General
General
General
General
General
General
General
General

Summary of Election Statistics (a).

Gubernatorial
Democrats Others

9,526 52
13,536 1,231

21,696
25,238 3,071

26,515 9,178
27,421 17,991

32,552 28,678
27,500 36,288

57,343
29,966 1,070
49,277 12,168

380 78,993

Senatorial
Democrats Others

Presidential
Democrats Others

10,668 4,509

13,044 4,995

31,169 15,639

47,548 15,438

2,580 114,027



1873 General 150,581 47,719 ........
1876 General ........ 104,803 44,803
1878 General 158,933 78,503 ........
1880 General 166,101 98,103 ........ ........ 156,428 85,928
1882 General 150,891 102,835 ........
1884 General 212,234 114,007 ........ ........ 225.309 99,996
1886 General 228,776 84,524 ........
1888 General 250,338 98,447 ........ ........ 234,883 122,630
1890 General 262,432 79,977 ........
1892 General 323,881 111,586 ........ ........ 239,148 183,297
1894 General 216,373 244,498 ........
1896 General 298,528 241,250 ........ ........ 375,480 248,878
1898 General 291,548 118,006 ........
1900 General 303,586 145,753 ........ ........ 267,337 146,794
1902 General 266,076 90,074 ........
1904 General 206,167 74,244 ........
(a) Sources:

Vote for Governor—Primary & General Elections— 1845-1916— Platforms of Political Parties by Ernest William 
Winkler; 1916-38—Texas Almanac & Industrial Guide for 1939-40; 1940—Texas Newspapers—Incomplete 
Returns.

Vote for Senators—Primary Elections—Texas Newspapers, Congressional Directory and Senator Connally’s Office 
— Incomplete Returns; General Elections—1916-18—World Almanac; 1922-36—Congressional Directories; 1940 
— Comment from Galveston Daily News.

Vote for President—General Elections— 1848-1916—Platforms of Political Parties in Texas; 1920—World Almanac 
1921; 1924-36 Texas Almanac & Industrial Guide; 1940—Houston Post—Incomplete returns.

For more detailed information refer to footnotes on following tables.



Gubernatorial
Date Democrats Others
1906 Primary 294,106

General 149,105 34,599

1908 Primary 320,067
General 218,956 81,808

1910 Primary 357,380
General 174,596 44,217

1912 Primary 395,995
General 233,073 66,664

1914 Primary 428,620
General 175,804 34,905

1916 1st Pri. 421,903
2nd Pri.
General 296,667 66,915

1918 Primary 678,491
General 148,982 28,373

(b) !Sheppard elected by the legislature to fill vacancy and
(c) Sheppard’s name on primary ballot, but was unopposed.

Senatorial Presidential
Democrats Others Democrats Others

216,737 76,491

317,018
(b)

221,589 83,531

386,597
257,280
301,757 69,428 285,980 85,741

(c)
248,742 47,526
for full term beginning 3/4/13.
No figures on election in the press.



1920 1st Pri. 449,800
2nd Pri. 448,777
General 289,188 192,543 289,688

1922 1st Pri. 589,926 596,818
2nd Pri. 553,638
General 334,199 73,329 264,260 130,744

1924 1st Pri. 703,123 575,042
2nd Pri. 729,770
General 422,558 294,970 591,913 101,208 478,425

1926 1st Pri. 821,234 15,439 (d)
2nd Pri. 766,318
General 233,068 32,439

1928 1st Pri. 737,921 581,000
2nd Pri. 525,825
General 582,972 124,034 566,139 130,714 341,032

1930 1st Pri. 833,442 1,964 (e) 651,619 1,758 (e)
2nd Pri. 857,773
General 252,738 62,224 266,550 40,151

(d) First state-wide primary held by the Republican Party.
(e) Second Republican Primary—Incomplete returns from 31 Counties only.

199,018

170,781

367,967



Date
1932 1st Pri. 

2nd Pri. 
General

1934 1st Pri. 
2nd Pri. 
General

1936 Primary
General

1938 Primary
General

1940 Primary
General

Gubernatorial
Democrats Others
967.490
951.490 
528,986 320,552

994,011
955,593
421,422 15,655

1,115,485 674,798
782,083 60,132

1,115,485
473,526 11,762

875,520
469,046 19,340

Senatorial
Democrats Others

662,487 (f)

439,375 15,033

774,975 62,285

,088,346

Presidential
Democrats Others

753,304 101,613

734,485 105,834

777,193 183.640

(f) Third Republican Primary—No figures listed in papers. Candidates actually selected by State Republican Com­
mittee prior to primary, which was held only to comply with state law.



TEXAS GUBERNATORIAL ELECTIONS.

Date
1845*

1847

1849

General.

Name Democrat Republican Others
J. Pinckney Henderson............. 7,853
James B. M iller............................. 1,673

9,526 .......... 52

George T. W o o d ........................... 7,154
James B. M iller............................. 5,106
Nicholas H. D arnell..................... 1,276

13,536 .......... 1,231

P. Hansborough B e l l ................... 10,310
George T. W ood ............................. 8,754
John T. M ills ................................. 2,622

21,696 ..........

Total

9,578

14,767

21,696

*-1845-1916—Vote for Governor—Source: Platforms of Political Parties in Texas—University of Texas Bulletin 
1916-No. 63—Ernest William Winkler, Ref. Librarian & Curator of Texas Books, Texas University.



Date
1851

1853

1855

Name
P. Hansborough Bell
M. T. Johnson ........
John A. G reer..........
Thomas J. Chambers

Ben H. Epperson (Whig)
Elisha M. Pease...............
George T. W o o d .............
Lemuel D. E vans............
Thomas J. Chambers . .. 
John W. Dancy .............

William B. Ochiltree (Whig)
Elisha M. Pease.....................
George T. Wood .................
M. T. Johnson .....................

D. C. Dickson (Know-Nothing)

Democrat Republican Others Total
13,595
5,262
4,061
2,320

25,238

13,091
5,983
4,677
2,449

315

2,971 100 28,309

CO

26,515
9,178

26,336
276
809

35,693

27,421
17,965

26 45,412



1857 Hardin R. Runnels..............
Sam Houston (Independent) 

1859 Sam Houston (Independent)
Hardin R. Runnels.............

1861 Francis H. Lubbock
Edward C lark ..........
Thomas J. Chambers

1863 Pendleton Murrah . , 
Thomas J. Chambers

1866 J. W. Throckmorton .......................
Elisha M. Pease.................................

1869 Edmund J. Davis (Radical R. ) . . .
Andrew J. Hamilton (Conserva­

tive R.) ..........................................

Hamilton Steward

32,552
28,678 61,230

27,500
36,227

61 63,788
21,854
21,730
13,759

57,343 57,343
17,511
12,455

29,966
1,070 31,036

49,277
12,168 61,445
39,901

39,092

78,993
380 79,373



Date Name
1873 Richard C oke.........................

William Chambers...............
1878 Oram M. R oberts.................

A. B. N orton .........................
W. H. Hamman (Greenback)

1882 John Ireland .....................................
George W. Jones (Greenback-Inde­

pendent) ........................................

1884 John Ireland ....................................
A. B. N orton ....................................
George W. Jones (Independent). ..

1886 Lawrence S. R oss .............................
A. M. Cochran...................................

1888 Lawrence S. R oss ..........
Marion Martin (Fusion)

1890 James S. H ogg ...............
Webster Flanagan........

Democrat
150,581

Republican Others Total

47,719 198,300
158,933

23,402
55,002

99 237,436
150,891

102,501
334 253,725

212,234
25,557

88,450 326,241
228,776

65,236
19,288 313,300

250,338
98,447 348,785

262,432
77,742

2,235 342,409



1892 James S. H o g g .................
George C lark .....................

A. J. Houston (Reform R.)

1894 Charles A. Culberson.....................
W. K. Makemson (Regular R.)
John B. Schmitz (Reform R . ) ........

1896 Charles A. Culberson

1898 Joseph D. Sayers

1900 Joseph D. Sayers 
R. E. Hanney . ..

190,486
133,395

323,881

216,373

298,528

291,548

303,586

1.322
1.322

57,147
5,304

62,451

112,864

110,364

182,047

241,250

118,006

435,467

CO

460,871

539,778

409,554

32,889 449,339



Date Name
1902 S. W. Lanham

George W. Burkett

1904 S. W. T. Lanham 
James G. Lawden

1906 Thomas M. Cam pbell............
C. A. Atchison (Reorganized)

1908 Thomas M. Campbell 
John M. Simpson . .

1910 Oscar B. Colquitt 
J. O. Terrell

1912 Oscar B. Colquitt 
C. W. Young

Democrat
266,076

Republican Others Total

65,706
24,368 356,150

206,167
56,865

17,379 280,411

149,105 23,771
5,395

29,166
5,433 183,704

218,956
73,305

8,500 300,764

174,596
26,191

18,026 218,813

233,073
22,914

COcc

43,750 299,737



175,8041914 James E. Ferguson...........................
John W. Philp .................................

1916 James E. Ferguson...........................
R. B. Creager....................................

1918** W. P. H ob b y ....................................
Charles R. B oynton .........................

1920 Pat M. Neff ....................................
J. G. Culbertson...............................

1922 Pat M. N e f f ......................................
W. H. A tw e ll.....................................

1924 Mrs. Miriam A. Ferguson.............
George C. B u tte ...............................

1926 Dan Moody ......................................
H. H. H aines.....................................

296,667

11,411
27,494 214,709

49,118

148,982
17,797 363,582

26,713

289,188

1,660 177,355

90,217

334,199

102,326 481,731

73,329 407,528

422,558
294,970 717,528

233,068
31.531

**— 1916-1938—Vote for Governor— Source: Texas Almanac & Industrial Guide— 1939-40.
908 265,507



Date Name
1928 Dan Moody ......................................

W. H. H olm es...................................

1930 Ross S. Sterling ...............................
William E. T a lbot.............................

1932 Mrs. Miriam A. Ferguson.............
Orville Bullington ...........................

1934 James V. A llre d ...............................
D. E. Waggoner ...............................

1936 James V. A llre d ...............................
C. 0 . H arris......................................

1938 W. Lee O’D aniel...............................
Alexander B oynton .........................

Democrat
582,972

252,738

528,986

421,422

782,083

473,526

Republican Others Total

120,504
3,530 707,006

62,224 314,962

314,807
5,745 849,538

13,534
2,121 437,077

58,842
1,290 842,215

10,940
822 485,288



1940*** W. Lee O’Daniel . . 
George C. Hopkins

469,046
19,116

224 488,386

TEXAS GUBERNATORIAL ELECTIONS.

Democratic Primaries.

First Second
Date Name Primary Primary Total Vote
1906* Thomas M. Campbell . . .....................  90,345

M. M. B rooks................. .....................  70,064
O. B. Colquitt ............... .....................  68,529
Charles K. B e ll ............. .....................  65,168 294,106

***—1940--Vote for Governor— Source: Dallas Times-Herald 11/6/40 and Galveston News 11/7/40—Incomplete
returns from 252 Counties.

****—p rom Texas Almanac—1939-40, P. 382—Political Parties in Texas—“ The Democratic Party has been dominant 
in Texas throughout the state’s history and has won in all major political contests with the exceptions of 
the defeat of Hardin R. Runnels (Democrat) by Sam Houston (Know-Nothing) in the gubernatorial contest 
of 1859, and the defeat in this state of A1 Smith by Herbert Hoover in the presidential contest of 1928, and 
in these instances personal factors rather than political party alignment were responsible for the result. 
The same can be said of the large vote cast for George C. Butte (Republican) and Orville Bullington (Re­
publican) running against Mrs. Miriam A. Ferguson in 1924, and 1932, respectively. The only serious threat 
to Democratic control in Texas history was that of the Populist or People’s Party, which reached its peak 
in the election of 1896 when its nominee, J. C. Kearby, lost to Charles A. Culberson by a relatively narrow 
margin of 298,582 to 238,692.”

*—Vote for Governor—-1906-38— Source: Texas Almanac & State Industrial Guide—1939-40.



Date Name
1908 Thomas M. Campbell

R. R. Williams . . . .
1910 O. B. C olquitt........

William Poindexter 
R. V. Davidson 
Cone Johnson ..
J. Marion Jones

1912 O. B. Colquitt .
William F. Ramsey

1914 James E. Ferguson
Thomas H. Ball

1916 James E. Ferguson
Charles H. Morris 
H. G. Marshall . . . .

1918 W. P. H o b b y ..........
James E. Ferguson

1920 Pat M. N e f f ............
Robert E. Thomason 
Joseph W. Bailey 
Ben F. Looney

First
Primary
202,608
117,459

Second
Primary Total Vote

320,067
146,526
79,711
53,187
76,050

1,906 357,380
218,812
177,183 395,995

237,062
191,558 428,620
240,561
174,611

6,731 421,903
461,479
217,012 678,491
149,818
99,002

152,340
48,640 449,800



1922

1924

1926

Pat M. N e f f .......................
Joseph W. B a iley ............
Pat M. N e f f .....................
W. W. King .....................
Fred S. R ogers...............
Harry T. W arner............
Felix D. R obertson........
George W. D ix o n .............
W. E. Pope .....................
Joe Burkett ...................
Mrs. Miriam A. Ferguson
Lynch D avidson.............
V. A. C ollins...................
T. W. Davidson ............
Thomas D. Barton ........
Mrs. Miriam A. Ferguson 
Felix D. R obertson........
Lynch Davidson...............
Mrs. Miriam A. Ferguson 
Mrs. Kate M. Johnston . 
Dan Moody .......................

264,075
184,702 445,777

318,000
18,368

195,941
57,617 589,926

193,508
4,035

17,136
21,720

146,424
141,208
24,864

125,011
28,917 l

CO

703,123

413,751
316,019 729,770

122,449
283,482

1,029
409,732



Date

1928

1930

Name
Mrs. Edith E. Wilmans . . .
O. F. Zim m erm an............
Mrs. Miriam A. Ferguson 
Dan Moody .......................
William E. H aw kins........
Dan Moody .......................
Louis J. W ardlaw .............
Mrs. Edith E. Williams . .
Mrs. Miriam A. Ferguson .
Thomas B. L o v e ...............
Paul Loven .......................
Earle B. Mayfield ...........
Barry Miller ................... .
C. C. M o o d y ............
Frank Putnam ...............
Clint C. Small ...............
Ross S. S terling...............
James Y ou n g ...................
C. E. W alker...................
Ross S. Sterling..............
Mrs. Miriam A. Ferguson

First
Primary

1,580

Second
Primary Total Vote

2,962
270,595

821,234

495,723 766,318

32,076
442,080
245,508

18,237 737,921

242,959
87,068

2,724
54,459
54,652

4,382
2,365

138,934
170,754
73,385

1,760 833,442

473,371
384,402 857,773



1932

1934

Roger Q. Evans.................
Mrs. Miriam A. Ferguson
C. A. Frakes .....................
J. Ed. Glenn .....................
Tom F. H unter...............
Frank Putnam .................
Ross S. Sterling ...............
M. H. W o lfe .......................
George W. Armstrong .. ,
Ross S. Sterling.............
Mrs. Miriam A. Ferguson
C. C. McDonald...............
James V. Allred ............
Clint C. S m all.................
Edgar W itt .......................
Edward K. Russell ........
Maury Hughes ...............
Tom H unter.....................
James V. A llre d .............
Tom F. H unter...............

3,974
402,238

2,338
2,089

220,391
2,962

296,383
32,241
5,312

473,846

967,490

206,007
297,656
124,206
62,208
4,408

58,187

477,644 951,490

241,339 994,011

497,808
457,785 955,593



Date
1936

1938

1940

Name
James V. Allred 
P. Pierce Brooks . .
F. W. Fisher ...........
Tom F. Hunter _____
Roy Sanderford . ..
W. Lee O’Daniel . .. 
Ernest O. Thompson 
William G. McCraw 
Tom F. Hunter . . . .  
S. T. Brogdon . . . .
Joseph King ..........
Clarence C. Farmer
P. D. R e n fro ..........
Karl A. Crowley . .. 
Clarence R. Miller . 
James A. Ferguson
Thomas Self ..........
Marvin P. McCoy . .
R. P. Condron . . . .  
Alron B. Davis . . . .

First
Primary
553,219
33,391

145,877
239,460

81,170

573,166
231,630
152,278
117,634

892
773

3,869
8,127

19,753
667

3,800
1,405
1,491

2,518
3,853

Second
Primary Total Vote

1,053,117

0 5

1,115,485



Miriam A. Ferguson . ..
Harry H ines................. .
W. Lee O’D aniel...........
Jerry Sadler ...............
Ernest O. Thompson . .,

.......................  72,392

.......................  95,285

....................... 467,503

.......................  48,546

.......................  185,423 875,520

TEXAS GUBERNATORIAL ELECTIONS.
Republican Primaries.

Date
1926

Name
*H. H. Haines................. .
E. P. Scott .....................

Primary Vote
11,215
4,074

Total Vote

15,289
1930 **K. E. Exum ...................

George C. Butte.............
— Grant.........................
— Gaines.......................

1,015
670
263

16 1,964
1934 ***

**—Votes for Governor— 1940—Source: Dallas Morning News 7/29/40—Incomplete returns from 242 out of 254 
Counties.

*—First state-wide primary held by the Republican Party.
**— Figures from the Houston Post 7/29/30—Incomplete returns from 31 Counties.

***—No figures listed in the papers. The Dallas News 7/29/34 states that the Republican Prmaries were a for­
mality to conform with Primary Law, since the party polled in excess of 100,000 votes in 1932. Candi­
dates were actually selected by the State Republican Committee prior to primary date.



TEXAS SENATORIAL ELECTIONS.

Date
1916

1918

1922

1924

1928

1930

General.
Name

*Charles A. Culberson 
— A tcheson..............

Morris Sheppard 
— Flanagan . .. .

-**Earle B. M ayfield...........................
George E. Peddy (Independent D.

& R.) ........................................
Morris Sheppard.............................
T. M. K ennerly...............................
Tom C onnally.................................
T. M. K ennerly...............................

Democrat
301,757

Republican Others

48,717
20,711

248,742
36,164

12,362
264,260

130,744
591,913

101,208
566,139

129,910
804

Morris Sheppard 
D. H. Haesley . . .

266,550
39,047

1,104

*—Vote for Senators—1916-18— Source: World Almanac 1918-21.
**—Vote for Senators—1922-36— Source: Congressional Directories— Statistics.

Total

371,185

297,268

395,004

693,121

696,853

306,701



439,3751934 Tom Connally
U. S. Goens .........................................  .......... 12,895 .......... ............
...........................................................................................................  2,138 454,408

1936 Morris Sheppard.................................... 774,975 .......... .......... ............
Carlos G. W atson ................................. .......... 59,491 .......... ............
............................................................................................................  2,794 837,260

1940 ***Tom Connally....................................... .......... .......... .......... ............
George I. Shannon............................... .......... .......... .......... ............

TEXAS SENATORIAL ELECTIONS.

Democratic Primaries.

First-
Date Name Primary-
1912 J. F. W olters........................................  129,740

Morris Sheppard ................................. 154,130
C. B. Randell ......................................  29,635
Matt Zollner..........................................  3,513

Second
Primary Total Vote

317,018

***—Texas papers of November 1940 do not list election returns for Senator in regular tabulations. From the Gal­
veston Daily News, 11/6/40: “ Although Senator Tom Connally and several of the congressional delegation
had Republican and other opponents, the election bureau did not gather or tabulate returns, so apparent was 
their election.”  Senator Connally’s office on November 30th had no returns from the general election, the 
clerk stating that the general election “doesn’t count in Texas.”



Date

1916

1918

Name
Dallas News 7/29/12.

(Morris Sheppard elected by the 
Legislature to fill vacancy to 3/3/13 
and for full term beginning 3/4/13.)

T. M. Campbell ...................................
S. P. Brooks ........................................
R. L. H en ry ..........................................
O. B. C olqu itt......................................
John Davis ..........................................
Charles A. Culberson .......................

Dallas News 7/30/16: Incomplete
returns from 246 of 253 Counties.
Charles A. Culbertson.......................•'
O. B. C olquitt......................................

Dallas News 9/3/16: Incomplete
returns from 230 of 253 Counties.

Morris Sheppard .................................
Houston Post 7/26/18: Sheppard

unopposed. Listed as only candidate 
in primaries.

First Second
Primary Primary

64,272
77,246
35,753

115,430
9,919

83,977

Total Vote

386,597 g

163,182
94,098 257,280



1922 Charles A. Culberson .........................
James E. Ferguson .............................
Robert L. Henry .................................
Earl B. Mayfield .................................
Clarence O u sley ...................................
Cullen F. Thomas ...............................

Congressional Directory, May, 1924 
Biography of Senator Mayfield.
James E. Ferguson...............................
Earle B. Mayfield ...............................

Dallas News 8/30/22: Incomplete
returns from 229 Counties of 253.

1924 Fred W. Davis .....................................
John F. Maddox .................................
Morris Sheppard .................................

Dallas News 8/1/24: Incomplete
returns from 249 of 252 Counties.

1928 Tom B lanton........................................
Tom C onnally......................................
Minnie Fisher Cunningham .............
Earle B. Mayfield ...............................

103,999
131,308
44,624

164,910
63,295
89,682

249,425
304,213

135,374
67,558

372,110

106,095
156,291
25,915

172,272

596,818

553,638
cn

575,042



Date

1930

1934

1936

Name
Jeff McLemore ....................................
Alvin M. Owsley .................................

Dallas News 7/31/28: Incomplete
returns from 245 of 253 Counties.

Tom C onnally......................................
Earle B. Mayfield ...............................
Robert Lee Henry ...............................
C. A. Mitchner ....................................
Morris Sheppard .................................

Houston Post 7/31/30: Incomplete.

Joseph Weldon Bailey, Jr...................
Tom C onnally......................................
Guy B. Fisher ....................................

Dallas News 7/30/34: Incomplete
returns from 239 of 254 Counties.

Richard C. Bush .................................
Joe H. Eagle ........................................
Guy B. F ish er......................................
Joseph A. Price ...................................

First Second
Primary Primary Total Vote

8,871
111,456 581,000

290,549
235,276 525,825

151,978
35,074

464,567 651,619 w

246,796
388,516
27,175 662,487

27,787
90,030
65,825
31,301



1940

Date
1930

1934

J. Edward Glenn ................................. 22,189
Morris Sheppard...................................

Houston Post 7/27/36: Incomplete 
returns from 241 of 254 Counties.

437,666 674,798

A. P. Belcher ...................................... 66,962
Tom Connally .................................... 923,219
Guy B. F ish er......................................

Figures from Senator Conally’s Of-
98,165 1,088,346

fice 11/30/40.

TEXAS SENATORIAL ELECTIONS. 

Republican Primaries.

Name
D. J. Haesley .....................................................................
Harve H. Haines ................................................ ...............
........H arris...........................................................................

Houston Post 7/29/30: Incomplete returns from 31
Counties.

Primary Vote Total Vote
800 
362
596 1,758

CJl
CO

Dallas News 7/29/34: The Republican Primaries
were a formality to conform with Primary Law, since



Date
1848

1852

1856

1860

the Party polled in excess of 100,000 votes in 1932. 
Candidates actually selected by the State Republican 
Committee prior to primary date—no figures being 
listed in the papers.

TEXAS PRESIDENTIAL ELECTIONS.

General.

X
X

X

Name
Lewis C ass................... .

**Zachary Taylor (Whig)

Franklin Pierce 
Winfield Scott
James Buchanan ...............................
Millard Fillmore (Know-Nothing).

John C. Breckinridge .......................
John Bell (Constitutional Union). ..

Democrat
10,668

Republican Others Total

4,509 15,177
13,044

4,995 18,039
31,169

15,639 46,808
47,548

15,438
■University of Texas

62,986
BulletinPolitical Parties in Texas—

1916__No. 63—Ernest William Winkler—Ref. Librarian & Curator of Texas Books University of Texas.
-X  Indicates successful candidate.

ui



1872
X

Horace Greeley (Liberal Republican)
U. S. G rant............................................
M. P. O’Connor (Straight) ...............

1876
X

Samuel J. Tilden .................................
Rutherford B. Hayes .........................

1880 Winfield S. H ancock...........................
James A. Garfield.................................

1884 X Grover Cleveland ...............................
James G. B la in e ...................................

1888
X

Grover Cleveland ...............................
Benjamin Harrison .............................

1892 X Grover Cleveland ...............................
Benjamin Harrison .............................

1896

X

William J. Bryan ...............................
John M. Palmer (Gold Democrat). . .  
William J. McKinley .........................

66,546
47,481

2,580
104,803

116,607

44,803 149,606
156,428

57,893
27,405 241,726

225,309
93,141

6,855 325,305
234,883

88,422
34,208 357,513

239,148
81,444

101,853 422,445
380,434

5,046
167,520

81,358 624,358



Date Name
1900

X
William J. Bryan ................................
William J. McKinley .........................

1904
X

Alton B. Parker ..................................
Theodore Roosevelt .............................

1908
X

William J. B ryan .................................
William Howard Taft .......................

1912 X Woodrow Wilson .................................
William Howard T a f t .........................

1916 X Woodrow Wilson .................................
Charles Evans Hughes .......................

1920 * * '-i'James Cox ............................................
X Warren G. Harding .............................

Democrat
267,337

Republican Others Total

121,173
25,621 414,131

167,200
51,242

15,566 234,008
216,737

65,602
10,889 293,228

221,589
28,853

54,678 305,120
285,980

64,673
21,068 371,721

229,688
115,640

83,378 488,706
***—Vote for President— 1920—Source: World Almanac—1921.



1924

1928

1932

1936

1940

* * * * .  

■Jf. #

******

**** James Davis . . .  
X  Calvin Coolidge

Alfred E. Smith 
X  Herbert Hoover

X  Franklin D. Roosevelt 
Herbert Hoover . . . . . .

X  Franklin D. Roosevelt 
Alfred Landon ........

X  Franklin D. Roosevelt 
Wendell W illk ie .......

478,425
128,240

341,032
367,036

753,304
96,682

734,485
103,711

777,193
183,307

42,541 649,206

931 708,999

4,931 854,917

2,123 840,319

..................................................................................................................  333 960,833
-Vote for President—1924-36— Source: Texas Almanac & Industrial Guide—Years 1926 to 1938.
-Vote for President—1940— Source: Houston Post 11/8/40—Incomplete returns from 253 Counties.
-From Texas Almanac— 1939-40—P. 382—Political Parties in Texas—“ The Democratic Party has been dominant 

in Texas throughout the staff’s history and has won in all major political contest with the exceptions 
of the defeat of Hardin R. Runnels (Democrat) by Sam Houston (Know-Nothing) in the gubernatorial 
contest of 1859, and the defeat in this state of A1 Smith by Herbert Hoover in the presidential contest 
of 1928, and in these instances personal factors rather than political party alignment were responsible 
for the result.”

cn-a



TEXAS POPULATION—VOTING AGE.
58

Over 20 yrs. of Age 
Over 20 yrs. of Age

Over 21 yrs. Table # 4  
Population Bulletin . . .  
Texas-Census Bureau .

1850
1860*

Male
40,670

106,070

White
Female
27,360
75,446

Total
67,976

181,516

1870*
1880**
1890**
1900**

Male
132,390
303,154
445,183
621,109

Female
108,960
237,827
358,867
532,856

Total
241,350
540,981
804,050

1,153,965
W h ite

1910
1920
1930

Male
864,147

1,086,862
1,253,035

Female
753,971
957,408

1,177,398

Total
1,618,118
2,044,270
2,430,433

Free Colored
Male

103
78

<
Male

51,575
82,622

104,430
141,413

Female
90
85

Colored --------
Female
51,310
82,070

101,686
139,185

Total
193
163

Male
11,895
37,678

Male Female Total Male
171,944 169,690 341,634 368
196,055 188,373 384,428 1,495
234,459 253,178 469,637 169,101

Slaves------- Non-White All Classes
Female Total Total Total
12,320 24,215 24,408 92,384
37,272 74,950 75,113 256,629

103,885 344,235
164,692 705,673
206,116 1,010,166

Other Races - 
Female Total

280,598 1,434,563

202 1,070 342,704 1,960,822
522 2,017 386,445 2,430,715

151,629 320,810 790,447 3,220,880

'* —Indians included in “ White” .
**__Japanese, Chinese & Civilized Indians included in “ Colored” .



59

37 Filed April 25, 1942.

DEFENDANT’S ANSWER TO FIRST AMENDED BILL 
OF COMPLAINT.

(Title Omitted.)

To the Honorable Judge of said Court:
Come now the defendants, S. E. Allwright and James 

J. Liuzza, Election Judge and Associate Election Judge 
for the 48th voting precinct in Houston, Harris County, 
Texas, in the above entitled and numbered cause, and 
with leave of the Court first had and obtained files this 
their first amended answer to Plaintiff’s First Amended 
Bill of Complaint, respectfully represent to the Court:

I.

In answer to lines 1, 2, 3 and part of 4 of the Plaintiff’s 
First Amended Bill of Complaint, defendants especially 
deny that he is suing on behalf of all qualified Negro 
voters similarly situated in the State of Texas, who are 
believers and adherents of the tenets and principles of 
the Democratic Party. Defendants respectfully aver that 
plaintiff is suing entirely for himself.

II.

In answer to parts of line 10 and 11 of Plaintiff’s First 
Amended Bill of Complaint, Defendants deny that they 
are appointed, qualified and acting as administrative of­
ficers of the State of Texas, etc., in answer to part of 11 
to 14 inclusive, Defendants deny that unlawfully denied 
to Plaintiff and all other qualified Negro voters the right 
to vote in the statutory Democratic primary elections in 
Texas on July 27th, 1940, and August 24th, 1940, solely 
because of race or color. Defendants respectfully repre­



60

sent that they are not public officers, but are Democratic 
Party officials, and denied plaintiff of the right to vote in 
said Democratic primary election solely because of the 
mandatory instructions of the Democratic Party, more 
particularly and fully set out and described in paragraph 
numbered XXIII hereof.

HI.

In answer to paragraph 1, beginning on the first page 
of Plaintiff’s First Amended Bill of Complaint, Defend­
ants deny that the jurisdiction of this Court is invoked 
under subdivision 1 of Section 41 of Title 28 of the United 
States Code. Defendants further deny that the jurisdic­
tion of this Court is invoked under Sections 31 and 43 of 
Title 8 of the United States Code, in that the matter in 
controversy herein does not exceed, exclusive of interests 
and costs, the sum of $3,000.00. The defendants further 
deny that the jurisdiction of this Court is also invoked 
under subdivision 11 of Section 41 of Title 28, or subdi­
vision 14 of Section 41 of Title 28, of the United States 
Code because this is alleged an action to enforce the right 
of a citizen of the United States to vote in the State of 
Texas. Defendants respectfully represent that the alle­
gations referred to in Plaintiff’s First Amended Bill of 
Complaint are primary elections in which a political party 
has a right to prescribe qualifications for membership 
and participation therein, and is not an election within 
the intent and meaning of the Fourteenth, Fifteenth, and 
Seventeenth Amendments to the Constitution of the United 
States.

IV.

Defendants especially deny in answer to paragraph 2 
of Plaintiff’s Amended Bill of Complaint that this is a 
proceeding for a declaratory judgment and an injunction



61

under Section 274D of the Judicial Code (United States * 
Code, Title 28, Section 400), because it appears from the 
face of the plaintiff’s First Amended Bill of Complaint 
that this is, in truth and in fact, a suit for $5,000.00 dam­
ages against each of the Defendants, and an action herein 
for alleged relief by injunction would be moot at this time 
in view of the fact that the face of Plaintiffs First 
Amended Bill of Complaint shows that the elections oc­
curred on July 27th, 1940, and August 24th, 1940. De­
fendants further deny that Plaintiff herein and the other 
Negro citizens similarly situated are qualified members 
of the Democratic Party and entitled to participate in the 
Democratic primary elections.

V.

Defendants especially deny so much of paragraph No.
4 of Plaintiff’s First Amended Bill of Complaint as re­
lates that “Plaintiff is a believer in the tenets of the Dem­
ocratic Party” . Defendants more especially deny that 
plaintiff is or ever has been a member of the Democratic 
Party or that he can become such or is entitled to mem­
bership therein, all as is more fully shown in paragraph 
No. XXIII hereof.

VI.

Defendants especially deny the allegations set out in 
paragraph 5 of Plaintiff’s First Amended Bill of Com­
plaint in that this is not such a suit as is of common and 
general interest of the members of the class represented 
by the Plaintiff, namely, Negro citizens of the United 
States and residents of the State of Texas, similarly situ­
ated, etc., in that the elections referred to in Plaintiff’s 
First Amended Bill of Complaint were Democratic Party 
primaries, and not an election within the intent and mean-



62

ing of the Fourteenth, Fifteenth and Seventeenth Amend­
ments to the Constitution of the United States.

VII.

In answer to paragraph 6 of Plaintiff’s First Amended 
Bill of Complaint, Defendants especially deny that the 
elections referred to were statutory elections or were held 
pursuant to the mandate of Article 3100 et seq. of the Re­
vised Civil Statutes of Texas; Defendants especially deny 
that they were appointed and acting solely under authority 
of Articles 3104 and 3105 of the Texas Revised Civil 
Statutes.

VIII.

In answer to paragraph No. 7 of Plaintiff’s First 
Amended Bill of Complaint, Defendants especially deny 
that the elections referred to in Plaintiff’s First Amended 
Bill of Complaint are elections within the intent and mean­
ing of Sections 2 and 4 of Article 1 and Amendment Sev­
enteen to the Constitution of the United States, or in 
Article 6 of the Texas Constitution and Article 2955 of the 
Revised Civil Statutes of Texas.

IX.

In answer to paragraph 9 of Plaintiff’s First Amended 
Bill of Complaint, Defendants deny that the Democratic 
primaries are maintained solely by authority of the stat­
utes of the State of Texas, because the holding of such 
primary election is in truth and in fact a political party 
affair.

X.

In answer to paragraph No. 10 of Plaintiff’s First 
Amended Bill of Complaint, Defendants especially deny



63

that candidates for the office of United States Senator 
from Texas can only be placed on the official ballot in the 
general election after nomination at statutory primary 
elections.

XI.

In answer to paragraph No. 11 of Plaintiff’s First 
Amended Bill of Complaint, Defendants especially deny 
that Article 3101 of Revised Civil Statutes of Texas re­
quire that candidates for the United States Congress, Gov­
ernor and State officials of political parties that cast 
100,000,000 votes or more be nominated in statutory pri­
mary elections apply in that any attempt to manage or 
control the party affairs of a political party, and more es­
pecially the Democratic Party, is unauthorized and of no 
effect.

XII.

In answer to paragraph No. 13 of Plaintiff’s First 
Amended Bill of Complaint, Defendants especially deny 
that the holding of the primary elections under the laws 
of the State of Texas is an essential governmental func­
tion of the State of Texas, because the holding of such 
primary elections is in truth and in fact a political party 
affair, and the nominees of such elections have no stand­
ing of any nature or kind in governmental affairs unless 
and until they are elected by all qualified voters at a gen­
eral election, at which said election the Plaintiff herein 
and all others similarly situated have the right to partici­
pate and exercise their right of suffrage.

XIII.

In answer to paragraph 14 of Plaintiff’s First Amended 
Bill of Complaint, Defendants especially deny that they



64

were acting as Judge and Associate Judge of Precinct No. 
48 of Harris County, Texas, solely by virtue of the laws of 
Texas, as administrative officers of the State of Texas. 
Defendants respectfully represent to the Court that they 
were Democratic Party officials and that they were acting 
in their capacity of Judge and Associate Judge of Pre­
cinct No. 48 of Harris County, Texas, at the times and 
place related in Plaintiffs First Amended Bill of Com­
plaint upon the instructions of the Democratic Party, as 
is more fully set out in paragraph No. XXIII herein, and 
independently of any statute of the State of Texas.

XIV.

Defendants further especially deny so much of para­
graph 15 of plaintiff’s First Amended Bill of Complaint as 
relates “ defendants were administrative officers of the 
State of Texas” and “defendants were under a duty to 
receive the vote of Plaintiff and the votes of all other qual­
ified electors presenting themselves to vote on the dates set 
for the primary election” , because the elections complained 
of were primary elections and not elections within the in­
tent and meaning of the Fourteenth and Fifteenth and 
Seventeenth Amendments of the United States, and the 
Defendants were following the mandatory instructions of 
the Democratic Party at the same time, all as is more fully 
set out in paragraph No. XXIII herein.

XV.

Defendants especially deny, in answer to paragraph No. 
19 of the Plaintiff’s First Amended Bill of Complaint, that 
they were acting as Judge and Associate Judge of Precinct 
48 of Harris County, Texas, solely by virtue of the laws of 
Texas, as administrative officers of the State of Texas, or 
that they were under a duty to deliver an official ballot to 
all qualified electors who presented themselves at the vot­



65

ing place during the hours that the voting place was open, 
or that Plaintiff was denied a ballot to said Democratic 
primary election solely because of his race or color. De­
fendants respectfully represent to the Court that they were 
acting in their capacity of Judge and Associate Judge of 
Precinct No. 48 of Harris County, Texas, at the times and 
place related in Plaintiff’s First Amended Bill of Com­
plaint upon the instructions of the Democratic Party, as 
is more fully set out in paragraph XXIII herein, and in­
dependently of any statute of the State of Texas.

XVI.

In answer to paragraph No. 20 of Plaintiff’s First 
Amended Bill of Complaint, Defendants deny that they 
conspired with each other and others unknown to deprive 
the Plaintiff and other qualified Negro electors of the State 
of Texas, of the right to vote in the Democratic primary 
election held in Harris County, Texas, on July 27th, 1940, 
in violation of the United States Constitution and law, 
but that these Defendants were following the mandatory 
instructions of the Democratic Party at such times, as is 
more fully set out in paragraph No. XXIII herein.

XVII.

In answer to paragraph No. 21 of Plaintiff’s First 
Amended Bill of Complaint, Defendants especially deny 
that Defendants, at the times and place set out in Plain­
tiffs First Amended Bill of Complaint, were acting as ad­
ministrative officers of the State of Texas, or that the re­
fusal to permit the Plaintiff at the times and place set out 
in his First Amended Bill of Complaint constitutes a de­
nial or abridgment of the right of the United States citi­
zen to vote within the meaning of Sections 2 and 4 of 
Article 1, and Amendments Fourteen, Fifteen and Seven­
teen thereto of the Constitution of the United States en­



66

acted pursuant thereto. Defendants respectfully represent 
to the Court that they were not administrative officers of 
the State of Texas, but, to the contrary, were party offi­
cials of the Democratic Party of the State of Texas, at the 
times and place referred to in Plaintiffs First Amended 
Bill of Complaint.

XVIII.

In answer to paragraph No. 22 of Plaintiff’s First 
Amended Bill 6f Complaint, Defendants especially deny 
that there is an actual controversy between the parties 
hereto, but respectfully aver that the identical matter of 
this suit has been previously disposed of by this Court 
in civil action No. 20 and civil action No. 449 and by the 
Supreme Court of the United States in the case of Grovey 
vs. Townsend, 295 U. S. 45, in each of which cases the al­
leged relief sought by the Plaintiff herein has been denied 
to other Plaintiffs under identical set of facts. Defendants 
respectfully represent to this Court that the Plaintiff 
herein has filed this suit, not because he seeks an adjudi­
cation of any right to which he might believe himself legiti­
mately entitled, but only to continue a harrassment of the 
Democratic Party of Texas, its officials, and more espe­
cially, the defendants herein.

XIX.

In answer to paragraph No. 23 of Plaintiff’s First 
Amended Bill of Complaint, Defendants especially deny 
that the failure of Defendants to permit them to vote at 
the primary election therein referred to, or to permit 
Plaintiff to become a member of the Democratic Party, or 
engage in its activities, deprives them of any right, power 
or privilege to vote. Defendants respectfully represent to 
the Court that a primary election, and more specifically, the 
election referred to in Plaintiff’s First Amended Bill of



67

Complaint, is not an election within the intent and mean­
ing of the Fourteenth, Fifteenth and Seventeenth Amend­
ments to the Constitution of the United States. Defend­
ants further deny that any such alleged deprivation dam­
aged plaintiff in the sum of $5,000.00, or any other sum of 
money, or other thing of value.

XX.

In answer to paragraph 24 of Plaintiff’s First Amended 
Bill of Complaint, Defendants especially deny that Plain­
tiff and those on whose behalf this suit is brought, are 
suffering irreparable injury and are threatened with ir­
reparable injury in the future, or that they have no plain, 
adequate or complete remedy or redress; Defendants al­
lege that the actions as complained of herein are the ac­
tions of the Democratic Party of the State of Texas, of 
which this Plaintiff and those in whose behalf he sues are 
not members, and that Plaintiff, together with those in 
whose behalf he sues, are not entitled to a declaration of 
rights and injunction.

XXI.

Defendants respectfully represent to the Court that the 
elections referred to in Plaintiffs First Amended Bill of 
Complaint are Democratic Party primary affairs; that the 
costs thereof were borne altogether by the Democratic 
Party in Texas, the funds therefor being secured from the 
individual members of the Democratic Party who sought 
the nomination of their party for the respective offices to 
which they hoped to become elected at a general election 
held subsequently to the primary election referred to in 
Plaintiffs First Amended Bill of Complaint, namely, No­
vember 5th, 1940, at which said general election the Plain­
tiff herein and all others similarly situated had the oppor­
tunity to exercise their right to vote if he and they elected



68

to do so, in which latter case the right was guaranteed to 
him and them under the Fourteenth, Fifteenth and Seven­
teenth Amendments to the Constitution of the United 
States.

XXII.

Defendants further respectfully represent to the Court 
that any attempt by or on the part of the legislature of the 
State of Texas to manage or control the party affairs of a 
political party, and more especially the Democratic Party, 
is unauthorized and of no effect, for the reason that the 
Democratic Party of Texas is a group of persons possessing 
a common political belief, who voluntarily associated or 
banded themselves together for the purpose of electing 
one of their number to be voted for or against in a general 
election, which was held in the City of Houston, Harris 
County, Texas, on the 5th day of November, A. D. 1940, 
at which said general election the Plaintiff and all other 
qualified electors under the laws of the United States and 
the State of Texas had the right to participate if they 
elected to do so.

XXIII.

Defendants respectfully represent to the Court that the 
Democratic Party of Texas is a political party composed 
of a voluntary association of persons who have common 
political ideas; that the Democratic Party of Texas in con­
vention assembled at Houston, Texas, on May 4th, 1932, 
unanimously adopted the following Resolution:

“Be It Resolved, that all white citizens of the State of 
Texas, who are qualified to vote under the Constitution 
and laws of the State, shall be eligible to membership in 
the Democratic Party and as such entitled to participate 
in its deliberations.”



69

Defendants respectfully represent to the Court that 
Plaintiff, and all others similarly situated cannot comply 
with those prerequisites and the Democratic Party of the 
State of Texas has never annulled, abrogated or amended 
said resolution, and it is, therefore, in full force and effect; 
that there is only one Democratic Party in the State of 
Texas; that the Democratic Party of Harris County, Texas, 
is a part and subdivision of the Democratic Party of the 
State of Texas, which passed the resolution herein set out, 
and that the Democratic Party of Harris County, Texas, 
received its authority to conduct its affairs, including the 
holding of primary elections referred to in Plaintiffs First 
Amended Bill of Complaint, from the Democratic Party of 
the State of Texas; that Defendants herein were bound to 
refuse to permit the Plaintiff herein the right to partici­
pate in the Democratic primary election referred to in 
Plaintiffs First Amended Bill of Complaint by the man­
date of the resolution herein referred to.

XXIV.

Defendants are not seeking to deprive the plaintiff and 
all others similarly situated from participation in any elec­
tion within the intent and meaning of the Fourteenth, 
Fifteenth and Seventeenth Amendments to the Constitu­
tion of the United States; that they are officials of a pri­
vate organization voluntarily formed for the purpose of 
expressing political ideas and ideals; that neither they nor 
the members of the political party could elect anyone to 
any office by virtue of the primary elections referred to 
in Plaintiffs First Amended Bill of Complaint in that said 
primary elections were conducted only for the purpose of 
nominating persons to the several positions which were 
voted on by all qualified electors, including Plaintiff and 
all others similarly situated, at the general election which 
was held in Houston, Harris County, Texas, on the 5th 
day of November, 1940, the expense of which said general



70

election was borne by Harris County, Texas, with public 
funds, provided all said qualified electors exercise their 
right to participate in said general election.

Wherefore, premises considered, Defendants pray the 
Court that Plaintiff be denied all the alleged relief he 
seeks in his petition; that Defendants have their costs in 
this suit expended; that they have such other and further 
relief, in law and in equity, to which they may be justly 
entitled.

Respectfully submitted,
S. E. ALLWRIGHT,

Defendants.

GLENN A. PERRY, 
Attorney for Defendants.

GLENN A. PERRY, 
(Glenn A. Perry) 

Of Counsel.
Attorney for Plaintiff:

, H. S. DAVIS, JR.,
409% Milam Street, 

Houston, Texas.

Attorney for Defendants:
GLENN A. PERRY,

510 State National Bank Building, 
Houston, Texas.

Before me, the undersigned authority, on this day per­
sonally appeared S. E. Allwright and James J. Liuzza, each 
of whom being first by me duly sworn, on his oath for him­
self says that he is one of the Defendants in the foregoing 
petition; that he has for himself read the foregoing petition



71

and knows of his own knowledge that the facts therein 
stated are true and correct.

S. E. ALLWRIGHT,

Sworn to and subscribed before me, the undersigned 
authority, on this, the . . . .  day of April, A. D. 1942.

Notary Public, Harris 
County, Texas.

48 STIPULATION OF FACTS.

Filed April 25, 1942.

(Title Omitted.)

For the purpose of the record herein, it is stipulated by 
and between the parties plaintiff and defendants hereto as 
follows:

1. That all parties to this action, both plaintiff and de­
fendants are citizens of the United States and of the State 
of Texas, and are residents and domiciled in said State.

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



72

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

3. On July 27, 1940, a Primary was held in Harris 
County, Texas, and on August 24, 1940, a “run off” Pri­
mary for nomination of candidates upon the Democratic 
ticket for offices of U. S. Senator, Congressman, Governor 
and other State and Local officers. Prior to this time the 
defendants were appointed and qualified as Presiding 
Judge and Associate Judge of Primaries in Precinct 48, 
Harris County, Texas.

4. At all times material herein the only State-wide 
primaries held in Texas have been for Nominees of the 
Democratic Party.

5. Since 1859 all Democratic nominees, for Congress, 
Senate and Governor, have been elected in Texas, with 
two exceptions.

6. The Harris County Tax Assessor and Collector pre­
pared a list of qualified voters, including plaintiff, and de­
livered a copy of this list to the defendants prior to July 
27, 1940, without expense to either candidates, the Demo­
cratic Party or any officers thereof.

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



73

ballots for General Elections, School District Elections, 
City of Houston Elections and other District Elections.

8. That on July 27, 1940, plaintiff presented himself to 
vote, in the said Democratic Primary, at the regular poll­
ing place for the 48th Precinct with his poll tax receipt 
and requested to be permitted to vote. Defendants refused 
him a ballot, because of his race and color, in accordance 
with the instructions of the Democratic Party of Texas.

9. That the County Clerk, the Tax Assessor and Col­
lector, the County Judge of Harris County and the Sec­
retary of the State of Texas all have performed their du­
ties under Articles 3100-3153, Revised Civil Statutes of 
Texas, in connection with holding of the Primaries on July 
27, 1940, and August 24, 1940, in Harris County, without 
cost to the candidates or the Democratic Party of any offi­
cial thereof.

10. That Democratic candidates for the office of U. S. 
Senator and Congressman were nominated at the Primary 
held on July 27, 1940, and that such nominations were 
certified by the Secretary of State to the General Election 
officials as the Democratic nominees and that all of such 
Democratic candidates were elected to the ofice of U. S. 
Senator and Congressman at the November General Elec­
tion of 1940.

11. That all qualified electors of the Negro race in Texas 
are similarly situated as the plaintiff in this law-suit, as 
to State-wide Democratic Primaries.

12. That the Defendants were Presiding Judge and As­
sociate Judge of the Democratic Primaries in Precinct 48, 
Harris County, Texas, on July 27, 1940, and August 24, 
1940, and they acted as such in refusing plaintiff the right 
to vote in said Primary.



74

13. After such Primary the names of the candidates 
receiving the nomination are certified by the County Ex­
ecutive Committee to the State Executive Committee, and 
the State Executive Committee, in turn, certifies such 
nominees to the Secretary of State who places the names 
of such condidates on the General Election Ballot to be 
voted on in the General Election. Such services are ren­
dered by the Secretary of State, are paid by the State of 
Texas. Said Secretary of State also certifies other Party 
candidates as well as Independent candidates for places 
upon the General Election Ballot, such services as ren­
dered by the Secretary of State are paid by the State of 
Texas.

14. Generally, the regularly elected Democratic Com­
mitteemen of each precinct in Harris County, Texas, are 
appointed to act as Presiding Judges in the Democratic 
Primaries. Generally the same individuals are appointed 
by the Commissioner’s Court of Harris County, Texas, to 
act as Election Judges in the General Elections. The 
Defendants conducted the Primaries of 1940 in the same 
general manner as the General Elections, in which Negro 
Electors are permitted to vote.

THURGOOD MARSHALL,
H. S. DAVIS, JR.,
CARTER WESLEY and
W. J. DURHAM,

Attorneys for Plaintiff.

GLENN A. PERRY,
Attorneys for Defendants.



75

51 DEFENDANTS’ STIPULATIONS.

Filed April 24, 1942.
(Title Omitted.)

For the purpose of the record herein, it is stipulated by 
and between the parties Plaintiff and Defendant hereto as 
follows:

1. That the Democratic Party of the State of Texas is 
a political party, and that it assembled in convention at 
Houston, Texas, on May 4, 1932, and unanimously adopted 
the following resolution:

“Be It Resolved that all white citizens of the State of 
Texas who are qualified to vote under the Constitution 
and laws of the State shall be eligible to membership in 
the Democratic Party and as such entitled to participate 
in its deliberations.”

2. That the next above recited resolution has never 
been amended, abrogated, annulled or avoided by the Dem­
ocratic Party of the State of Texas, in convention assem­
bled since its adoption on the day named.

3. That the Democratic Primaries held in Harris 
County, Texas, on July 27, 1940, and August 24, 1940, 
were for nominations, and the candidates nominated by the 
Democratic Party thereat became candidates for election 
to the respective offices for which they sought the nomin­
ation at a General Election in Harris County, Texas, on 
November 5, 1940.

4. That the defendants did not deprive the Plaintiff, or 
anyone else similarly situated of the right to vote at the 
General Election in Harris County, Texas, held November 
5, 1940.

5. The entire expense of holding and conducting the 
Primaries in Harris County, Texas, on July 27, 1940, and



76

August 24, 1940, were borne and paid for by the Harris 
County Democratic Executive Committee; that it received 
the funds therefor by levying an assessment against each 
person whose name was placed upon the Primary Ballot 
for the two Primaries named, and that the funds unused 
therefor, and which remained in the possession of the 
Harris County Democratic Executive Committee, were re­
turned pro rata to each candidate for Democratic nominee 
who had made a contribution to the Harris County Demo­
cratic Executive Committee, following the assessment so 
levied.

6. That defendant S. E. Allwright was in 1938 elected 
by the Democrats of Precinct 48 as their party Chairman 
of such Precinct, and following party custom, was ap­
pointed as Presiding Judge to hold the two Primaries for 
the Democratic Party, hereinbefore mentioned, by the 
Chairman of the Harris County Democratic Executive 
Committee. Defendant James J. Liuzza was appointed 
Associate Judge. They received from such County Chair­
man instructions with respect to the holding of such Pri­
maries.

7. That defendants received their pay for holding the 
two Primaries of the Democratic Party through the Harris 
County Democratic Executive Committee, or its Chairman, 
from a fund raised by the Executive Committee by an as­
sessment of the candidates at such Primaries.

8. Defendants were paid for holding the General Elec­
tion on November 5, 1940, by Harris County.

Respectfully submitted by:
GLENN A. PERRY,

Attorneys for Defendants.
W. J. DURHAM,
THURGOOD MARSHALL,
CARTER WESLEY and 
H. S. DAVIS, JR.,

Attorneys for Plaintiff.



77

53 PL. EX. (1).
Instructions to Holders of Election.

1. Officers and Clerks should reach polls by 6:30 A. M.

2. Polls open at 7 A. M. and close at 7 P. M.

3. All officers and clerks shall take the following Oath:

“ I solemnly swear that I will not in any manner request 
or seek to persuade or induce any voter to vote for or 
against any candidate or candidates, or for or against any 
proposition to be voted on; and that I will faithfully per­
form this day, my duty as an officer of this election and 
guard, as far as I am able, the purity of the ballot box. 
So Help Me God.”

The oath will be administered by the presiding officer 
first administering it to all other officers or clerks at the 
same time; and immediately thereafter the assistant Judge 
will administer it to the Presiding Judge.

4. Examine supplies and see that officers are acquainted 
with duties.

5. Inspect the ballot boxes before using, to see that they 
are clear.

6. See that you have four tally sheets, four poll lists 
for names of voters, a list of qualified voters of your Pre­
cinct, and complete return sheets.

7. Have the presiding officer sign his name across back 
of ballots.

8. Designate the Judge to receive and number ballots 
and to deposit same in the ballot box.



78

9. See that each voter folds his ballot so that the name 
of the presiding officer can be seen before receiving it.

10. See that name of each voter is on certified list, and 
mark by his or her name a “V” for voted when vote is 
cast.

11. Begin counting as early as possible and attempt to 
keep your count up as closely as possible, in order that re­
turns can be made of the Ballot Box to the Civil Court 
House with as little delay as possible.

12. At each change of the boxes, one of the Judges shall 
announce at the outer door of the voting place the number 
of votes already cast.

13. Do not allow any loafing or loitering within 100 
feet of the polls.

14. Keep the ballot boxes within full view of the public.

15. See that ballots are marked with black pencil or 
ink.

16. At 2 P. M. count absentee votes which have been 
delivered to you.

17. Do not allow any voters to take into polling place 
any memorandum or prepared list to aid him in marking 
ballot.

18. In assisting an illiterate voter, have present two of­
ficers of election.

19. And do not tell him for whom to vote; you can tell 
him the names of the candidates and the office they seek, 
and let him make his own choice.



79

20. In case a voter mutilates a ballot, he must return it 
to officer, before receiving another, and he cannot be al­
lowed to exceed three. You shall keep a list of mutilated 
ballots.

21. When ballot has once been deposited in the ballot 
box it cannot be returned to voter and by him corrected 
or changed.

22. In making returns, fill in blanks showing the total 
number of votes cast, and see that it tallies with the num­
ber of names on the Clerk’s poll list.

23. Be careful to see that the number of votes each can­
didate receives is in plain figures opposite his name on the 
return sheet.

24. Carefully sign and seal the returns in duplicate at 
least. Deliver the returns promptly to the Court House 
on Fannin Street in Houston, Texas, bringing with you, 
properly prepared, the statement for clerk hire sent with 
these supplies.

HARRIS COUNTY DEMOCRATIC 
EXECUTIVE COMMITTEE,

CHAS. E. KAMP,
Chairman;

GLENN A. PERRY,
Secretary.



30

FINDINGS OF FACT AND CONCLUSIONS OF LAW 
PREPARED AND FILED BY THE TRIAL JUDGE 
UNDER RULE 52 OF THE FEDERAL RULES OF 
CIVIL PROCEDURE.

55 Filed May 11, 1942.
(Title Omitted.)

Thurgood Marshall, of New York City, N. Y.,
W. J. Durham, of Sherman, Texas,
Carter W. Wesley and H. S. Davis, Jr., of Houston, Texas, 

For Plaintiff.

Glenn A. Perry, of Houston, Texas,
For Defendants.

Statement of the Case.
This is another of many cases arising in Texas, several 

in this District, involving the question of the right of 
negroes to vote in Texas Democratic Primary Elections.

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

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

Findings of Fact.
(a) Plaintiff is a negro, a natural born citizen of the 

United States, a qualified elector and voter under the Con­



81

stitution and other Laws of the United States and of the 
State of Texas, and on July 27, 1940, and August 24, 1940, 
resided in Voting Precinct 48, Harris County, Texas. He is 
a Democrat.

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

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

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

Conclusions of Law.

1. But for a subsequent decision of the Supreme Court 
(United States v. Classic, 313 U. S. 301, 85 L. Ed. 1368), 
this case could and would be quickly disposed of by citing 
Grovey v. Townsend, 295 U. S. 47, 79 L. Ed. 1292. Plain­



82

tiff, however, contends that because of the decision in the 
Classic case, Grovey v. Townsend is no longer controlling, 
and it is, therefore, necessary to examine closely the rea­
soning in both cases.

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

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

“The right to participate in the choice of 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 successful 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 effec­
tively 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 representa­



83

tive. 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 because, as is alleged 
in the indictment, the choice of candidates at the Demo­
cratic primary determines the choice of the elected repre­
sentative. Moreover, we cannot 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 re­
jection at the election of the choice made at the primary, 
and may thus operate to deprive the voter of his constitu­
tional right of choice. This was noted and extensively com­
mented upon by the concurring Justices in Newberry v. 
United States, 256 U. S. 263-269, 285, 287.”

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

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

“ The primary is conducted by the State at public ex­
pense. Act No. 46, supra, Sec. 35. The primary, as is the 
general election, is subject to numerous statutory regula­
tions as to the time, place and manner of conducting the 
election, including provisions to insure that the ballots cast 
at the primary are correctly counted, and the results of the 
count correctly recorded and certified to the Secretary of 
State, whose duty it is to place the names of the success­
ful candidates of each party on the official ballot” , etc.

In Grovey v. Townsend, it is said (italics mine):
“While it is true that Texas has by its laws elaborately 

provided for the expression of party preference as to nom­



84

inees, has required that preference to be expressed in a 
certain form of voting, and has attempted in minute detail 
to protect the suffrage of the members of the organiza­
tion against fraud, it is equally true that the primary is a 
party primary; the expenses of it are not borne by the 
State, but by members of the party seeking nomination 
(Arts. 3108; 3116); the ballots are furnished not by the 
State, but by the agencies of the party (Arts. 3109; 3119); 
the votes are counted and the returns made by instrumen­
talities created by the party (Arts. 3123; 3124-5; 3127); and 
the State recognizes the State convention as the organ of 
the party for the declaration of principles and the formu­
lation of policies (Arts. 3136; 3139).”

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

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

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

“ Since 1859 all Democratic nominees, for Congress, Sen­
ate and Governor, have been elected in Texas, with two 
exceptions.”

If this is historically correct, which I doubt, and if I 
may look outside the Record, then such Stipulation fails 
to take into account that many times during the period 
named, there was strong opposition not only to the three 
Democratic nominees named but to other Democratic nom­



85

inees, and that the Democratic nominees for President 
failed to carry Texas in 1928. I do not regard the Stipula­
tion quoted as meaning that the choice of candidates at 
the Democratic Primary in Texas “determines the choice 
of the elected representative” . In politics “ you cannot 
always sometimes tell which to least expect the most” .

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

T. M. KENNERLY,
Judge.

63 FINAL JUDGMENT.

Filed May 30, 1942.

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

Lonnie E. Smith
vs. Civil Action No. 645.

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

On the 11th day of May, A. D. 1942, came on to be heard 
before the Court, and at a regular term thereof, the above 
entitled and numbered cause, wherein plaintiff, Lonnie 
E. Smith, sought to recover of and against the defendants, 
S. E. Allwright, Election Judge, and James J. Liuzza, As­
sociate Election Judge, 48th Precinct of Harris County, 
Texas, $5,000.00 damages, and for Declaratory Judgment



86

under Section 400, Title 28, U. S. C. A., declaring and ad­
judging (as stated in Plaintiffs First Amended Bill of 
Complaint):

“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 Texas, solely on account of their race or color, 
is unconstitutional as a violation of Sections 2 and 4, of 
Article 1, and Amendments Fourteen, Fifteen and Seven­
teen of the United States Constitution.”

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

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

Ordered, Adjudged and Decreed by the Court under the 
Declaratory Judgment Act of the United States that the 
practice of the defendants in enforcing and maintaining 
the policy, custom and usage of which plaintiff and other 
Negro citizens similarly situated who are qualified elec­
tors are denied the right to cast ballots at the Democratic 
Primary Elections in Texas, solely on account of their race 
or color, is constitutional, and does not deny or abridge 
their right to vote within the meaning of the Fourteenth, 
Fifteenth or Seventeenth Amendment to the United States 
Constitution or Sections 2 and 4 of Article 1 of the United 
States Constitution. It is further



87

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

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

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

(S.) T. M. KENNERLY,
Judge.

Approved as to form and contents:
THURGOOD MARSHALL,

Attorney for Plaintiff.

GLENN A. PERRY,
Attorney for Defendants.



88

65 TRANSCRIPT OF TESTIMONY.

Filed June 6, 1942.

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

Lonnie E. Smith, Suing on Behalf of Himself and on Behalf 
of Other Qualified Negro Voters in the State of Texas, 
Plaintiff,

vs. Civil Action No. 645. 
W. D. Miller, County Clerk of Harris County, Texas, and 

S. E. Allwright, E. George and James J. Liuzza, As­
sociate Election Judges, 48th Precinct of Harris 
County, Texas, Defendants.

Appearances:
Thurgood Marshall, Esq., and 
W. J. Durham, Esq.,

Appearing for and on Behalf of the Plaintiff. 

Glenn A. Perry, Esq.,
Appearing for and on Behalf of the Defendants. 

The Court:
Civil Action 645, Lonnie Smith versus W. D. Miller. Is 

the plaintiff ready?

Mr. Marshall:
Yes, if Your Honor please.

The Court:
Defendant ready?

Mr. Perry:
Yes, sir. If the Court please, I have amended answers 

to the plaintiff’s amended petition, which have been



89

signed by one of the two defendants, and the plaintiff ' 
waives further signature. If it please the Court, I would 
like to present them with one signature.

The Court:
Just file them.

Mr. Perry:
Thank you, sir.

The Court:
Do you want permission to amend, or have you already 

gotten it?

Mr. Perry:
We both announced at the time that this case was called 

that we would amend. I don’t know whether the Court 
granted us permission at that time or not. We both have 
stipulations to sign and file, which I am checking over 
right this minute.

The Court:
All right. Gentlemen, you are going to trial on the 

amended pleadings filed today; is that correct?

Mr. Perry:
Amended pleadings filed today and amended answers. 

Mr. Marshall:
If Your Honor please, there were some appendices to the 

original complaint, and in lieu of copying them again we 
can use those.

The Court:
In other words, your amended pleadings refer to your 

original pleadings for exhibits?



90

Mr. Marshall:
Yes, sir.

The Court:
All right.

Mr. Marshall:
And two sets of stipulations.

The Court:
Do you want to have the witnesses sworn, or do you 

have any witnesses?

Mr. Marshall:
We have one.

The Court:
Let us have them all sworn, both sides.

Mr. Perry:
Judge, the defendant was in my office when I left Judge 

McCalla’s office, but whether he went back to this Court 
or that Court, I have not been able to ascertain; but he 
is in the vicinity right close around.

Mr. Marshall:
If Your Honor please, in order to further shorten the 

trial we have agreed that the depositions taken subject to 
the approval of the Court, of Mr. Butcher and Mr. Ger­
many, can be used.

The Court:
Not in the previous trial of this case?

Mr. Marshall:
No, sir; of the Hasgett case.



91

The Court:
That is No. 449?

Mr. Marshall:
Yes, sir.

Mr. Perry:
I want to put Mr. Kamp’s testimony also out of the 

Hasgett case.

The Court:
What are you agreeing to? Tell me again. Out of the 

Hasgett case?

Mr. Marshall:
The Hasgett case, the depositions of Mr. E. B. Ger­

many and Mr. C. A. Butcher, and the testimony of Mr. 
Charles E. Kamp, who is now in the army.

The Court:
Then you have stipulations in this case?

Mr. Marshall:
Yes, sir.

The Court:
Two sets of stipulations?

Mr. Marshall:
Two sets, yes, sir; both signed by both sides.

The Court:
And in addition to that you have some oral testimony?

Mr. Marshall:
Yes, sir.



92

The Court:
Suppose you tell me what the case is about, I don’t re­

member the Hasgett case.
Mr. Marshall:

Yes, sir. According to this case, during the primary elec­
tion in 1940 the plaintiff is a qualified elector, there is no 
question as to his qualifications, and that he suffers no 
disqualifications, and that he applied to the County Clerk’s 
office for an absentee ballot during the regular period pre­
ceding the primary election, and he was refused an ab­
sentee ballot on the ground of his race or color; and that 
at the election of July 27, 1940, he applied to his precinct, 
Precinct 48, and requested of the defendants a ballot and 
permission to vote in the Democratic primary, and he was 
refused this ballot on the ground of his race or color.

The complaint bases its jurisdiction on a violation of 
Article 1 of the U. S. Constitution, involving the election 
of congressmen, since congressmen were nominated and 
elected in 1940, and Article 14 of the Amendments to the
U. S. Constitution, and Article 15 and Article 17, because 
a United States senator was likewise nominated and elected 
during this 1940 election.

The main difference between this case and all of the 
other primary cases is that in this case we not only 
alleged a violation of the Fourteenth and Fifteenth Amend­
ments, but we also alleged a violation of Article 1, on the 
theory of the case of the United States versus Classic, the 
Louisiana primary case, if Your Honor remembers, de­
cided by the Supreme Court last year.
The Court:

How do you get jurisdiction here; by reason of the 
claim that involves a question under the Constitution and 
value of more than $3,000.00?
Mr. Marshall:

We claim both the question of jurisdiction on the 
$3,000.00 point and the main point that we rely on is the



93

Civil Rights Statute, Sections 41 and 43, Title 8, which 
give a right of action for a violation of the United States 
Constitution and the United States laws.

The Court:
Section 41?

Mr. Marshall:
And 43 of Title 8.

The Court:
Of the Code?

Mr. Marshall:
Yes, sir, the Civil Rights Statutes.

The Court:
Also you stand under Section 41 of Title 28?

Mr. Marshall:
Yes, sir, and specifically Subsection 14 under Section 

41, which does not require the jurisdiction of amount.

The Court:
In other words, you have three theories of jurisdiction?

Mr. Marshall:
Yes, sir.

The Court:
First under Section 41, the $3,000.00 statute?

Mr. Marshall:
Yes, sir.

The Court:
And second, under Subdivision 14 of 41?



94

Mr. Marshall:
Yes, sir. And then there is one other, I think it is 11, 

which is specifically about voting. Subdivision 11.

The Court:
Of what?

Mr. Marshall:
Of 41. It specifically applies where there is a case in­

volving the question of voting.

The Court:
You think you will get in somewhere?

Mr. Marshall:
That is what we are trying to do.

The Court:
What relief are you asking?

Mr. Marshall:
We are asking for damages in the sum of $5,000.00.

The Court:
Damages in the sum of $5,000.00? Is that the only re­

lief?

Mr. Marshall:
And declaratory judgment, sir; declaratory under Sec­

tion 400, Title 28.

The Court:
Does that about state your picture of the case?

Mr. Marshall:
That is the only difference between this and the others.



95

The Court:
What do you say in reply to these pleadings, counsel? 

Mr. Perry:
If the Court please, our main contention is that this elec­

tion is not an election that is in violation of the Articles of 
the Constitution, in that it is a Democratic nomination not 
an election.

The Court:
I see.

Mr. Perry:
Our defense is that these defendants in this suit are not 

State officials but are party officials of the Democratic 
party of Texas, and that the Democratic party of Harris 
County is a part of the Democratic party of Texas, and 
that the plaintiff in this case was denied the right to vote by 
the defendants, or of participating in the primary, because 
of a mandate of the Democratic party of Texas which was 
promulgated and handed down to the defendants on May 
2, 1932, at a convention of the Democratic party of Texas 
held in Houston; that the denial or the failure of these de­
fendants to permit these plaintiffs to vote or participate in 
these primaries constituted no violation of either the Four­
teenth, Fifteenth or Seventeenth Amendments to the Con­
stitution, or any of the other laws that have been cited by 
counsel for the plaintiff.
The Court:

In other words, you are standing about like the defend­
ants stood in the Hasgett case?

Mr. Perry:
Practically the same, yes, sir.

The Court:
You may put on your proof.



96

Mr. Marshall:
Dr. Smith.

The Court:
I have not read your stipulation, but I take it you are not 

going to cover anything covered by your stipulation.

Mr. Marshall:
No, sir. There is just one point that was not covered 

by the stipulation.

Mr. Marshall:
All right, come around.

75 LONNIE E. SMITH was thereupon called as a
witness on behalf of the plaintiff and, having been 

first duly sworn, testified as follows:

Direct Examination.
By Mr. Marshall:

Q. Dr. Smith, you are a qualified practicing dentist in 
the City of Houston?

A. Yes.

(By the Court):
Q. What are your initials?
A. L. E.

(By Mr. Marshall):
Q. And you are the plaintiff in this case?
A. Yes.
Q. Directing your attention to the time of the Demo­

cratic primary election in the year of 1940, did you at­
tempt to secure an absentee ballot to vote in said primary 
election?

A. Yes.



97

Mr. Perry:
I would like to make objection at this time, please, to 

the absentee ballots in primary election, as these defend­
ants are precinct committeemen of Precinct 48 and are not 
in charge of the absentee balloting or the balloting by 
absentee votes.

The Court:
Does he make the party who refused him the absentee 

ballot a party?

Mr. Marshall:
No, sir. What we are trying to do, sir, in our case, we 

allege that the refusal to give the plaintiff a ballot at the 
election was pursuant to the general policy, custom and 
usage in this area, and we want to show that, both in the 
absentee ballot and in the actual election, the reason, sir, 
that we cannot make the county clerk a party is because 
the county clerk is now dead. We just want to give the 
background of the case.

The Court:
I will take the objection with the case.

(By Mr. Marshall):
Q. Will you explain where you went in an effort to 

secure the absentee ballot?
A. I went over to the clerk’s office, county clerk’s 

office.
Q. Here in Houston, Texas?
A. Down at the Court House in Houston.
Q. In Houston?
A. Yes.

Mr. Perry:
My objection, of course, will go to the entire line of 

• testimony?



98

The Court:
Yes, sir; that will be all right.

Mr. Perry:
Thank you, sir.

(By Mr. Marshall):
Q. In Harris County?
A. Yes.
Q. And what office did you go to?
A. To the county clerk’s office.
Q. And what did you request when you went there?
A. Well, I requested an absentee ballot.
Q. For the primary election?
A. For the primary.
Q. And what happened then?
A. Well, he told me that—
Q. Who told you?
A. The fellow that was giving' out the absentee bal­

lots.
Q. Where was this person that you are speaking of?
A. It was in the Court House over there in the clerk’s 

office.
Q. Do you know his name?
A. No, I don’t know his name.
Q. Did you present your poll tax receipt?
A. No, he didn’t ask for that.
Q. Well, at that time, was this individual giving out 

other absentee ballots to other people?
A. Yes.
Q. Were those people white people?
A. They were white.
Q. And did he refuse to give you an absentee ballot? 
A. Yes.
Q. Did he say why?
A. He said it was a Democratic primary and negroes 

was not allowed to vote in it.



99

Q. And he refused to give you an absentee ballot?
A. Yes.
Q. And after that time did you notice that he gave out 

any more ballots to white people in the office?
A. When we turned around and left and was going out, 

there was some more behind, white people, and he gave 
them ballots right on.

Q. Did you hear what was said between this individual 
and any of the white people who were applying for bal­
lots? Did you hear what they said?

A. They asked for a ballot and he just gave it to 
them.

Q. Did you hear him ask them what party they be­
longed to?

A. No.
Q. Did you have your poll tax receipt with you?
A. Yes.

Cross Examination.

By Mr. Perry:
Q. You don’t know the gentleman’s name that you 

talked to over there, do you?
A. No.
Q. Did you hear the entire conversation between the 

clerks and the people who were applying for absentee 
ballots?

A. They asked for a ballot and he just gave them a 
ballot.

Q. Were you present during all the conversation?
A. You see, when I go in the office they just asked 

for a ballot and walked right out behind. I was right 
behind them.

Q. Do you know what was said to them as they went 
into the other office or wherever they went?

A. Nothing said.
Q. Nothing said. Was there anybody else in there?



100

A. There was different clerks.
Q. Did you hear all of the clerks talking to each indi­

vidual as he went in?
A. I don’t understand you.
Q. Did you hear all the conversation between each and 

every clerk with each and every absentee voter?
A. There wasn’t but one clerk that was giving them 

out, and he was not asking them any questions.
Q. He was not asking any questions. You don’t know 

what his name was?
A. No.
Q. That was in the Court House here?
A. That was in the Court House.

Mr. Perry:
That is all.

(By the Court):
Q. When was that now?
A. That was in July, 1940.
Q. Just before the Democratic primary?
A. Yes, sir.
Q. Were there any other colored men around?
A. There was four of us.
Q. Four of you? Did they go in ahead of you or be­

hind you?
A. We was all along together. I was in the head. 
Q. He told you that it was a Democratic primary and 

he would not give you an absentee ballot?
A. Yes. He said he was not giving it out to colored 

and if I wanted to know any more about it, to go to some 
headquarters in some bank building or something.

The Court:
Any other questions?

Mr. Perry:
No, sir.



101

Mr. Marshall:
No further questions.

The Court:
Stand aside. Call your next witness.

Mr. Perry:
If the Court please, may I have about three mintues to 

call my office and check up on the defendants, sir?

The Court:
Yes.
(Short recess.)

The Court:
Where will I find these depositions in the Hasgett 

case?

Mr. Marshall:
We have them here, sir, in the printed record, and they 

are also in the files here in the Court.

Mr. Perry:
They are in the Clerk of the Court’s record, together 

with also the printed record that went up on appeal.

Mr. Marshall:
We are going to leave these with the stenographer. 

The Court:
All right. I can get a copy of it, I guess.

Mr. Marshall:
Yes, sir. They are filed in the Hasgett case.

The Court:
Yes; that is handy to use.



102

Mr. Perry:
There is one available to the Court, I am sure. If it is 

not in the files, I have it in my office.
The Court:

Was it filed in the Circuit Court of Appeals?

Mr. Perry:
Yes, sir.

The Court:
What became of the proceedings up there?

Mr. Marshall:
We dismissed them, sir, because in the meantime this 

Classic case had come up and we wanted to get it under 
that.
Mr. Durham:

We have one to furnish the Court.

Mr. Perry:
I believe attorneys for the plaintiff intend to file briefs 

with this Court in connection with this case. Have you 
filed yours?

Mr. Durham:
No, sir, we have it prepared, but have not filed it.

Mr. Perry:
I will be another two days preparing this.

The Court:
Is this all the evidence?

Mr. Perry:
We have one more witness, I believe. Yes, sir. He is 

on the way over now.



103

The Court:
All right. I notice that I based my decision before not 

on what I thought about the cause, but what the Supreme 
Court thought about it.

Mr. Perry:
That is correct, in Grovey versus Townsend. That case 

is still the case on this point so far as we understand the 
law.

The Court:
You think there is something later?

Mr. Marshall:
We think the Classic case settles it now.

82 S. E. ALLWRIGHT was thereupon called as a
witness on behalf of the plaintiff, and, having 

been first duly sworn, testified as follows:

Direct Examination.

By Mr. Marshall:

Mr. Marshall:
If Your Honor please, we want to question him as an 

adverse witness just a moment.

The Court:
All right. What is the name?
A. Allwright.

(By Mr. Marshall):
Q. All what?
A. A-l-l-w-r-i-g-h-t.



104

The Court:
What are your initials, Mr. Allwright?
A. S. E.

The Court:
Is he the defendant?

Mr. Marshall:
Yes, sir.

(By Mr. Marshall):
Q. You are the defendant in this case?
A. How is that?
Q. You are one of the defendants in this case, and you 

are the judge of the election in the 48th Precinct?
A. Yes, sir.
Q. And you were such judge during the Democratic 

primary election in the year of 1940?
A. Well, I have been chairman out there for the last 

12 years.
Q. And as chairman you have acted as an election 

judge of the primary at each one of the primaries during 
that period? Your answer is yes?

The Court:
Answer out, please.
A. Yes.

(By. Mr. Marshall):
Q. Prior to the primary election in 1940 did you re­

ceive printed instructions as to the method of holding the 
election?

A. Yes, sir.
Q. Do you remember those instructions, what they 

were?
A. Well, no, I don’t remember them right offhand, no.



105

Q. I show you a sheet of paper entitled “ Instructions 
to holders of elections” and ask you if that is the type 
of sheet you received?

A. I imagine it is, yes.
Q. So far as you know, this is the same type?
A. Yes. I never read it all, see, but I am sure that it is 

the same type.

Mr. Marshall:
Do you have any objection to its admission?

Mr. Perry:
No.

Mr. Marshall:
If Your Honor please, we tender this as Plaintiff’s Ex­

hibit 1.

(The document was received in evidence as Plaintiff’s 
Exhibit 1.)

The Court:
Let me see it.

(The document was handed to the Court.)

The Court:
I don’t see anything in here about negroes voting.

Mr. Marshall:
No; that comes separately, I think.

The Court:
All right.



106

(By Mr. Marshall):
Q. Mr. Allwright, do you, in the conducting of the 

primary election and the general election, take the same 
oath for both elections?

A. Well, I am not sure about that.
Q. Did you take the oath on this sheet here?
A. Yes, I taken it on that.
Q. And at the general election, do you take the oath 

from—
A. The instructions that they send out.
Q. So far as you know, they are the same oaths, in the 

language of them?
A. Well. I don’t know about that. I would have to read 

them both to find out. I don’t pay that particular atten­
tion, whether it is the same oath. I would have to have 
them both to read them to be sure about that.

Q. Mr. Allwright, when a white person comes into the 
polling place during the primary election of 1940 and asks 
for a ballot to vote do you ever ask them what party they 
belong to?

A. No, we never ask them.
Q. As a matter of fact, if a white elector comes into 

the polling place to vote in the Democratic primary elec­
tion, he is given a ballot to vote; is that correct?

A. Right.
Q. And negroes are not permitted to vote in the pri­

mary election?
A. They don’t vote in the primary.
Q. But any white person is that is qualified; regard­

less of what party they belong to, they can vote?
A. That is right.
Q. And you do let them vote?
A. Yes.

Mr. Marshall:
Your witness.



Cross Examination.

By Mr. Perry:
Q. Mr. Allwright, do you receive any other instruc­

tions at the time of the primaries other than the printed 
instructions that you identified here?

A. No, I don’t think we do. I am not certain about 
that now, but I know that we get this instructions.

Q. And you comply—
A. And that is what we go by, the instructions that we 

receive.
Q. You go by the instructions that you receive?
A. Yes.
Q. If you receive this instruction, that is the instruction 

you followed; is that correct?
A. Yes.
Q. Mr. Allwright, who appoints you as presiding judge?
A. Well, the executive committee, don’t they?
Q. You mean the Harris County Democratic executive 

committee?
A. The Harris County Democratic party appoints me.
Q. Who tells you how many clerks you can have?
A. They do.
Q. Who tells you how much money you receive?
A. They do.
Q. Do you abide by those instructions?
A. Yes, sir.
Q. In holding primary elections, Mr. Allwright, I will 

ask you if the instructions that you receive from the Harris 
County Democratic executive committee are the instruc­
tions by which you abide in the handling of elections?

A. Yes, sir.
Q. Was that true in 1940?
A. Yes, sir.

Mr. Perry:
I believe that is all.



108

Re-Direct Examination.

By Mr. Marshall:
Q. Mr. Allwright, you did refuse the defendant in this 

case a ballot at the primary in 1940?
A. You say did I do it?
Q. Yes, sir.
A. Not as I know of. It might have been one of the 

clerks that done it. I don’t know as I done it. I wouldn’t 
say that I did.

(By the Court):
Q. There were not any negroes voted in the primary in 

1940 here in Houston, were there?
A. I beg your pardon?
Q. There were no negroes voted in your precinct in the 

primary in 1940, were there?
A. No, they don’t never vote in the primary.

Re-Cross Examination.

By Mr. Perry:
Q. One further question: Did you handle the general

elections on November 5, 1940?
A. I have handled them all.
Q. At that time did qualified negro electors vote?
A. In the presidential election?
Q. Yes, general election in November.
A. Yes, sir; they all vote then.
Q. They all vote?
A. Yes.
Q. You didn’t restrict this plaintiff or any other negro 

the right to vote in that election?
A. • They all have a right to vote. They all vote.

Mr. Perry:
I believe that is all.



109

The Court:
Do the records show that this primary in 1940 was for 

the purpose of nominating congressmen and senators?

Mr. Perry:
Yes. sir.

Mr. Marshall:
Yes, sir, the stipulation.

Mr. Perry:
The stipulation covers United States senator, congress­

man, governor and other State and local officers, yes, sir.

The Court:
Any other questions?

Mr. Marshall:
No, sir.

The Court:
You may stand aside, please.

Mr. Marshall:
That is all.

The Court:
Do you gentlemen wish to argue it?

Mr. Marshall:
We both rest.

If Your Honor please, we have a pretty exhaustive brief 
here, and if Your Honor wants to hear us besides the brief, 
we are perfectly willing to argue it.



110

The Court:
If you care to present it on briefs, I will be glad to have 

them. That is a perfectly satisfactory way to present it.

Mr. Marshall:
Your Honor, the case shapes up—just a brief point—it 

shapes up entirely under the two points, we think: No. 1 
is that we have always taken the position that Grovey 
versus Townsend was in dispute or opposed to the other 
decisions on primary elections, and the Classic case settles 
that.

The Court:
You believe that is not sound?

Mr. Marshall:
I hate to go that far, sir, but that is the way we have 

been driven to, and I think the Classic case points that 
out very well, because in the Classic case it involved the 
usual political procedure in Louisiana of changing ballots 
and throwing out ballots and corrupt political practices 
in some areas. In this Classic case some white voters in 
the Democratic primary had their ballots tampered with, 
and an action was brought under Sections 51 and 52, Title 
18, which are the criminal provisions of the same Civil 
Rights Statute that we are under here, and the Classic 
case held that the Democratic primary in Louisiana was 
an integral part of the election machinery, and the re­
fusal to permit this man’s vote to be counted was a viola­
tion of Sections 51 and 52, and it went further in 52 to 
hold that it was done under color of State statute, which 
to our mind throws the Grovery versus Townsend case 
out. The decision mentioned Nixon versus Condon and 
Nixon versus Herndon, and does not mention Grovey 
versus Townsend at all, just ignores it, and goes around, 
cuts all the ground work out from under it and lets it 
stay.



I l l

The Court:
Is there another decision of the Supreme Court about 

the same time as the Louisiana case?

Mr. Marshall:
Not on the primary. At least I did not find one.

The Court:
I thought there was.

Mr. Marshall:
No, sir. In the case in Louisiana, according to the opin­

ion, it is based on the statutes, Your Honor, as to whether 
or not it is State action. We have furnished in our brief 
as Appendix B a chart or table showing the statutes in 
Louisiana used in the Classic case and the statutes in Texas 
used in the Classic case. They are almost identical, with 
one exception. In Louisiana the candidates are assessed 
money; they pay their money into the county and State 
treasury, and then the county and State pay for the pri­
mary. That is the difference between Classic and Texas.

The Court:
Do they pay anything more than that to the county and 

State?

Mr. Marshall:
It is not clear, sir. The difference, so far as we are con­

cerned, is immaterial, because in Texas the candidates 
pay for the election, with the exception of what is per­
formed by the State, which nobody pays for except the 
taxpayers. So that the statement that the expenses of 
the primary are paid by the Democratic party in Texas 
is not true. The county clerk does certain things, the sec­
retary of State will do certain things, and the other offi­
cials do certain acts, and they are not paid for it, and they 
are incidental to the primary election. But the persons



112

who pay the actual expenses of the running of the pri­
mary, the buying of paper and pencils and stuff like that, 
and the payment of the clerks’ and the judges’ salaries for 
the election, are not paid by the Democratic party; they 
are paid for by the candidates. In Louisiana they are 
paid for by the candidates. So there is actually no differ­
ence in who puts up the money for the primary between 
the laws of Louisiana and the laws of Texas. And it is 
quite clear that the money that is paid in Texas, accord­
ing to the Supreme Court of Texas, does not belong to 
the Democratic party; it never belongs to the Democratic 
party;- it is a trust fund, and after the election the balance 
must be returned to the candidates. That is the Supreme 
Court of Texas, as cited in the brief. So that actually the 
party does not pay for the elections; the candidates pay 
for it, the same way as they do over there in Louisiana. 
But this case is stronger than the Louisiana case, on sev­
eral points. In Louisiana it was doubtful as to whether a 
Democratic condidate could run in the general election, 
and the Supreme Court said that, although it was doubt­
ful the way they construed the statutes, he could not run. 
But I point out to you, sir, as we do in the brief, that in 
Texas a candidate who is defeated is out. So that, as a 
matter of fact, the only way that our plaintiff and the 
other negroes can have anything to do with this election is 
at the primary. The final election is just a form matter. 
The Democratic nominees have always won, with two 
minor exceptions back in 1860, when that other party, the 
No-Nothing party won. And then we all remember about 
Governor Smith. There are only two exceptions. They 
are always elected, and the Supreme Court, although the 
people who argued Grovey versus Townsend, insisted that 
that was a point that had to be considered, and in Grovey 
versus Townsend the Court said it did not have to be con­
sidered, in the Classic case they said that is the important 
point to be considered, which I say is another reason for 
saying Grovery versus Townsend is out.



113

The other point is that, as we argued in the Hasgett case 
•—we did not have anybody to agree with us outside of 
Your Honor; the Supreme Court said we were wrong, of 
course—where you divided it up into two sets instead of 
one you are still smack up against the Fourteenth and Fif­
teenth Amendments. The Classic case says that. The 
election so far as we are concerned and so far as the Classic 
case is concerned consists of one step, which actually is the 
primary, because the other part is nothing but a mere 
formality.

So that, if the Constitution means anything at all, then 
it takes form and throws it out the window and looks for 
substance.

The other difference, if Your Honor please, is that in 
every case, Nixon versus Condon and the Herndon case 
and Grovey versus Townsend—I have checked the briefs 
in the Supreme Court Library in every one of those cases, 
and in every case they have argued the Fourteenth and 
Fifteenth Amendments, and for some reason the Supreme 
Court would never go the Fifteenth Amendment; they 
always sent it off on the Fourteenth Amendment.

The Court:
Didn’t they discuss it in the Grovey case?

Mr. Marshall:
They discussed it by saying it did not apply. After 

arguing it all the way down, they just threw it out. I 
mean they didn’t go into it. But I point out to you, sir, that 
the Fifteenth Amendment does not say anything about 
elections. It talks about the right to vote, and it does not 
say the right to vote where or the right to vote in what. 
It says the right to vote. Well, there is no question that 
this Democratic primary consists of votes. There is no 
question that he went there to vote. So it has always been 
our position that the Fifteenth Amendment applies to all 
of those actions involving voting.



114

And that is the other point that we rely upon as much 
as we possibly can, is that we are not only standing on the 
Fourteenth Amendment here, we are standing on the Fif­
teenth Amendment. And we want to go back to the Hern­
don case. The point that the Supreme Court has com­
pletely ignored is the statement of Mr. Justice Holmes in 
that case to the effect that the right to vote in the primary 
was just as valuable as the right to vote in the general 
election. The Supreme Court decided that in the Herndon 
case. Mr. Justice Holmes wrote it and the Supreme Court 
adopted it, and then in the Nixon versus Condon case they 
weaved away from it, and in Grovey versus Townsend 
they completely ignored it. We want to go back to that 
point now, and we think in the Classic case it allows us 
to go back.

If Your Honor please, when Grovey versus Townsend 
was up there, there was United States versus Newberry 
and four or five other cases, all of which were contrary as 
to whether or not a primary was anything or nothing. It 
was not clear at all. So when Grovey came up the Su­
preme Court did not know where to go on the question of 
primary, because it had never been decided.

Now United States versus Classic comes out, takes the 
United States versus Newberry case and the other cases, 
distinguishes them, moves them aside, and sets up in very 
clear form the one proposition that where the primary 
election is the integral part of the election machinery of a 
State, then it is subject to Federal control. That is the 
yardstick they set down. They use the other points, every 
one of which we come under.

Now that that case is decided, then we submit that the 
Grovey case does not apply, unless there is somebody can 
distinguish the statutes in Louisiana from the statutes in 
Texas, and they are practically identical, with the excep­
tion that the Texas statutes are stronger on certain points 
as to making the election actually a part of the election 
machinery.



115

There is no question about it here. In so far as I read 
the record in the Classic case, it is a Democratic primary. 
I mean it is for Democrats. Like up in the other States 
where we have primaries, in Maryland, for example, you 
register as a Democrat or a Republican, and if you register 
as a Democrat you cannot vote in the Republican primary. 
They don’t ask you what you are when you go in there. 
They look on the books, and you vote in the primary that 
you have registered for. But I submit that this Democratic 
primary is not a Democratic primary. It is open to any­
body, the same as the November election is, except that 
it is not open to negroes. It is not a Democratic primary; 
it is a primary. Republicans can vote in it, Socialists can 
vote in it, Communists can vote in it. Anybody can vote 
in it that desires to but a negro. It is therefore actually 
not a Democratic primary; it is a primary. I submit that 
that is stronger than the Classic case or any other case 
that I know of.

There is no difference— and it is stipulated there—there 
is no difference in the running of the two elections, as to 
the actual performing of the duties by the election judges, 
between the primary and the general election, except that 
negroes can vote in the general election but they cannot 
vote in the primary. That is the only difference between 
the two elections. So it cannot be a Democratic primary. 
It is just a primary.

I submit, if Your Honor please, that the only conclusion 
we would have to conclude on is that the case of White 
versus the County Committee, that Your Honor decided, 
decided before Grovey versus Townsend, set down the law. 
Grovey versus Townsend would have followed it, but after 
a few years the Supreme Court caught up with the—and 
I submit that the decision here in the Classic case is per­
fect justification for Your Honor ruling the same way that 
you ruled in the Hasgett case on down to the point where 
you say “I have not changed my views” , and the Supreme 
Court now gives full authorization for it, and that is why



116

we went back and came up under the Classic case. That is 
the only difference.

Mr. Perry:
If the Court please, we will, of course, differ with coun­

sel for plaintiff, in that the Classic case grew out of the 
criminal end of the statutes, based upon votes that had 
been cast one way and other destroyed or changed another 
way. In this case no vote has been cast. He also makes 
the statement that, if a candidate in the Democratic pri­
maries is defeated, he is out. As far as being a Demo­
cratic candidate, he is out, but there is no law to prevent 
the Secretary of State or the officers who certify his can­
didacy as an independent candidate on that ticket from 
doing so. He can still run if his party or if his backing so 
chooses to run him.

On the general election ticket there happens to be the 
Democratic, Republican, Independent, and other parties 
listed.

The Grovey versus Townsend case is practically the 
same case as this case, except that in that instance the 
suit was filed against Albert Townsend, who was a State- 
paid county clerk who refused Grovey the right to vote, 
and the Supreme Court held even then, in his official ca­
pacity as county clerk, by the resolution that has been 
stipulated to and in evidence, the Democratic party had 
that right.

Our contention, and our pleadings will support the con­
tention, we hope, that the State laws of the legislature of 
the State of Texas, regardless of the laws they pass, are 
not binding upon the Democrats. They have no force and 
effect upon the Democratic party; that the party rules and 
the control of the party and the controlling of the pri­
maries which are nominations to election are controlled 
by the Democratic party in convention, and that the rules 
of that body have not been changed with reference to the 
right of who shall participate.



117

We have never contended that these officers do not do 
their duty. They have followed the statutes if they so 
desired. We have no control whatsoever over the county 
clerk, the County Judge, the Secretary of State, or any of 
those officers in their State offices. There is no question 
about that. But their acts in accepting absentee ballots 
for the Democratic party or for the Houston city elec­
tions or for the Houston Independent School District or 
for any other drainage district that wants to hold an elec­
tion, the county clerk’s office accepts all of those ballots. 
As a matter of fact, I don’t believe he has to if he does not 
want to.

So, as far as the statutes and laws are concerned, no 
matter what the statutes of Louisiana might happen to be 
or what the statutes of Texas might happen to be, the con­
tention of the defendants in this case is that the statutes 
do not apply to any acts of the Democratic party of Texas. 
We will, of course, elaborate more fully on that in our 
brief which we will file today.

We think that this case is entirely within the meaning 
of the Grovey case, and the Classic case can be distin­
guished.

The Court:
You will have your briefs in, you say, in a few days?

Mr. Perry:
Yes, sir.

The Court:
Do you want time in which to reply?

Mr. Marshall:
If Your Honor please, it depends on the brief. The only 

question is it will take two days to reach me, but a week 
outside will be time enough.



118

The Court:
I will say, briefs in ten days, and you can get yours in 

in two days.

Mr. Perry:
Yes, sir.

The Court:
And you can get yours in then?

Mr. Marshall:
Yes, sir.

The Court:
Mark the case submitted; briefs in ten days. The clerk 

will take charge of all these exhibits and this printed 
record and the brief of counsel.

(At 11:40 o’clock A. M., the hearing was closed.)

100 E. B. GERMANY was thereupon called as a
witness on behalf of the plaintiff and, being first 

duly sworn, testified by deposition as follows:

Direct Examination.

By Mr. Durham:
Q. You at present Chairman of the Democratic com­

mittee?
A. Executive committee.
Q. And how long?
A. Since the Beaumont convention, I think that was 

1938.
Q. And have you held any other offices in the party 

before that?
A. No.



119

Q. How long have you been active in the Democratic 
party?

A. Since I was able' to vote, since I was twenty-one.
Q. Is the party itself incorporated—I mean can you 

explain just the set-up of the party itself?
A. It is a voluntary association. The Democratic party 

is just an association of Texas people into an organization 
and it functions to select its candidates and try to get its 
policies adopted by the State.

Q. Now, I mean—how do you become a member of 
the party itself?

A. Just go and vote.
Q. Just by voting for a Democratic candidate?
A. There is no way—as far as I know there is no way 

to join the party itself; membership is defined by or has 
been defined by State conventions; I don’t remember how 
long back it has been, but the membership of the party, 
the best I can tell has been defined.

(At this point examination was recessed temporarily.)

A. Let me answer that over again. I don’t know just 
what I said. I want to get that straight. Let him ask 
that question over again.

Q. How does an individual go about becoming a mem­
ber of the Democratic party?

A. Well, I don’t know, to be honest with you. So far 
as I know if they go into the primary and vote—well, there 
have been rules prescribed for people who are members 
of the party, but so far as a method of becoming a mem­
ber of the party, I don’t know, if qualified to be members 
I think they only have to go and vote and attend the con­
ventions.

Q. Do you know any qualifications, as such—first of 
all, are there any written qualifications any place?

A. Not in my records; I have not seen any.
Q. Is there any general understanding about it?



120

A. I don’t know.
Q. So far as you know?
A. You see, the State Chairman of the Executive Com­

mittee, nor the Executive Committee do not function at 
primary elections, they simply canvass the returns of the 
elections; the election is held by the County Democratic 
Executive Committee and under the supervision of the 
Democratic Committee Chairman. Our function is sim­
ply—my Executive Committee acts—serves as an audit­
ing committee to canvass the returns of these people and 
we do not pass on qualifications to vote, and it never has 
come around—become my province to check into it.

Q. Of your own personal knowledge do you know of 
anything, outside of race or color, that would prevent a 
citizen of Texas, whose name appears on the poll tax lists 
from becoming a member of the Democratic Party?

A. I don’t know that race or color would. I can’t even 
answer that question. I don’t know what the qualifica­
tions are. I know what you are driving at, of course. I 
don’t have any knowledge of it; I have never attended a 
convention where that question was passed on, it has 
never been passed on by the Executive Committee, of 
which I am a member. I don’t know anything about it. 
From hearsay I could give you a lot of testimony, but I 
know you don’t want that.

Q. Now, since you have been chairman has your com­
mittee taken any action to prevent negroes from voting in 
the primary?

A. No.
Q. Has the convention done so?
A. Not while I was chairman.
Q. Has the question come up at all?
A. Not at all. I want to be careful to tell the truth. 

I have had inquiries from people in this regard. I have 
always referred them back to our county chairman when 
I had any, I just referred them to the county chairman, 
told him it did not come in our province to pass on that 
question.



121

Q. Now, you are familiar with the laws in regard to 
the action of your committee on the election itself, the pri­
mary elections, about canvassing the votes, and so forth?

A. Yes.
Q. Does your committee follow those statutes—I mean 

as to time and place of the canvassing?
A. As near as we can we do; it is just a matter of uni­

formity, we follow the general statute that applies to all 
political parties, there is no statute for the Democratic 
party no more than the Republican or anything else.

Q. You follow the statutes on places of over 100,000 
votes?

A. Yes.
Q. You follow those as nearly as you can?
A. As near as we can; it is impossible to follow the let­

ter all over the State; we cannot on all of them.
Q. In the days when primary elections are to be held, 

you fix those dates; do you follow the dates set out in the 
statute?

A. Oh, yes. Yes.
Q. How is that done by your committee?
A. My committee meets and fixes the time for the con­

ventions, that is, the place of the convention, the time is 
already set; we agree to those times, if it is agreeable, con­
venient. It is usually convenient.

Q. The date is the fourth Saturday in July?
A. We follow the statute, whatever the statute says on 

that governing all political parties.
Q. Then after that the particular primary elections are 

held by the individual county executive committee?
A. Yes.
Q. After that the votes are cast, then they are can­

vassed by your committee?
A. Yes, the returns are forwarded to the chairman of 

the State committee (me, in this instance) and a copy is 
forwarded to the secretary of the committee, and we have 
an auditing committee that checks those returns.



122

Q. The proceedings each year, where elections are to be 
held, primary elections, all your committee does is follow 
the statutes, there is no variation except minor variations 
in the following of the statutes, is that correct?

A. I would not say there is any variations, sometimes 
we have some slight variations that don’t amount to any­
thing particularly, but we, as nearly as we can, follow 
the law as we understand it. We understand there is a 
general law covering all political parties; we follow that 
general law in so far as certifying our candidates for the 
general election, both in primary and in convention. All 
political parties have to meet the same date, all their con­
ventions the same way. We follow that statute as nearly 
as we can.

Q. Now, are you familiar at all of your own knowledge, 
I mean of the—I don’t know what word to use—several 
efforts of negroes to try to vote in the primary over a 
period of twenty years?

A. No, I am not. I don’t think anything like that came 
up in the county where I lived. I know by correspon­
dence—I have had questions put to me—I always referred 
them to the county chairman and Attorney General.

Q. Isn’t it true in your county one time negroes voted 
in the primary?

A. I don’t know. I was raised in Van Zandt County. I 
have only been in Dallas twelve years. I think they vote 
in city elections right now, don’t they?

Q. Do they, Roger?
Roger Mason:

Yes.
A. I am not a citizen of Dallas, but I understand they 

do vote in city elections.
Q. During your time as chairman of the committee 

have you or any member of your committee under your 
instructions instructed the several county committees to 
prevent negroes from voting in the primary?



123

A. Never have.
Q. You did not direct your attention to the elections 

held last year, 1940—were any instructions issued they 
were to bar negroes from the primary?

A. Never did.
Q. Were any instructions issued by the convention 

itself?
A. At Beaumont?
Q. While you have been chairman?
A. I think not. There were not any at Mineral Wells; 

I was chairman during the Mineral Wells convention. 
There were no instructions then.

Q. Can you give us an idea what year it was in Min­
eral Wells?

A. It was in 1940, it was in September, 1940, I believe.
Q. The convention just prior to that, are you familiar 

with that?
A. The convention—there were several conventions, 

you understand. The Waco convention was a few months 
prior to that when we selected our candidates for the Na­
tional Convention, that is what we call our National State 
Convention. We have two State conventions on presiden­
tial years, one State convention selects delegates to the Na­
tional Democratic Convention, this is our province, that 
convention was held in Waco in 1940, and the question was 
not in issue there. Then the Mineral Wells convention was 
held, I think, in September following the National Conven­
tion in July, I believe our National Convention was then. 
So far as I know the question was not brought up at any 
time since I have been in the county; it may have been, 
in committee, if it did, I did not hear of it.

Q. Prior to then—
A. (Continuing.) We had our State gubernatorial con­

vention at Beaumont at which I was made State chairman. 
I was a delegate from Dallas County at that convention if 
that question was brought up I never did know anything 
about it. I am sure it was not voted on.



124

Q. Then from the time, from 1938 up until the present 
time neither the convention itself nor your committee has 
issued any orders to the local committees, county commit­
tees, to bar negroes from voting?

A. I can’t say; the convention did not to my knowledge, 
it did not. I have no records except the records of the ex­
ecutive committee, it has issued no such orders.

Q. The minutes, what about them?
A. I have not seen the minutes. I have asked Mr. Ken­

nedy for them several times, but I have not gotten them.
Q. You are sure the committee has not?
A. No, the committee has not.
Q. This other point is that of the question of the ap­

pointment of the election judges and machinery for run­
ning the primary and all, is that left up to the county?

A. The county chairman, the county convention is a po­
litical unit itself, and the county convention elects its own 
officers, the county chairman and the various precinct 
chairmen and all are elected there, and they function as 
the election organization. Does that answer your question?

Q. The question of the relationship of the executive 
committee to the convention itself, I mean what is the re­
lationship?

A. Well, the convention sometimes away back in the 
past fixed some kind of a policy, I imagine, so far as I 
know it is just tradition handed down to the executive 
committee, the duties of making the arrangements for the 
convention, auditing the returns, and so forth, and making 
a report to the convention for its confirmation, it is just 
that; subsequently as I understand, the State executive 
committee has no authority to make any policies or de­
termine any program for the convention but they set up 
the machinery, preliminary machinery by which the con­
vention goes to work each time. If you want a little more 
detail, the executive committee arranges the place for the 
meeting, the State committee sets up a program for the 
temporary officers, which are usually confirmed from then



125

on the temporary officers put the convention in operation, 
then the convention is out of the hands of the State execu­
tive committee.

Q. Then after the convention is over the actual man­
agement of the party reverts back to the committee, doesn’t 
it, between conventions?

A. Well, in so far as carrying out the program and 
policy of the convention, I would say yes. They can’t fix 
any policies; they carry out the policies adopted by the 
convention.

Q. There are no permanent offices of the Democratic 
party with the exception of those committee members?

A. No, and they serve from one convention to the next, 
one gubernatorial convention to the next.

Q. Is there any carrying over policy or program from 
convention to convention? What does each convention 
adopt, its own policy platform and rules, and so forth?

A. Now I don’t know whether I know, how to answer 
that question or not because I have never been at one con­
vention that held over; I have only been to two conven­
tions as an official or as a member. I have never been a 
delegate except to two State gubernatorial conventions, the 
Presidential Convention came in between. So far as I 
know unless there is a resolution passed which changes the 
general situation, as a matter of precedent only, the con­
ventions assume that whatever has been done in the past 
goes on and on until it is changed. Now if there is just 
a matter of precedent, I don’t know whether there is a rule 
or regulation that would fix that policy—I am not trying 
to dodge the issue—that is the best I can come to it.

Q. Who has the records of the convention?
A. The State secretary has them.
Q. The secretary has them?
A. Mr. Butcher keeps the records of the State execu­

tive committee and as far as I know—I don’t know who 
keeps the records of the convention unless he does; I guess 
he is ex-officio secretary of the convention, at least he



126

was the last one. At Waco Mr. Van Kennedy was the sec­
retary of the convention, that is the National State Conven­
tion when they elected State delegates. Mr. Van Kennedy 
was secretary of that convention. It does not necessarily 
follow that the State secretary of the executive committee 
is secretary of the convention. Many times he is not. That 
is the case there.

Q? Mr. Germany, I believe you stated that the policy 
of the Democratic party was adopted at a convention by 
its members at a gubernatorial convention?

A. Yes.
Q. Unless there was some rule or regulations, some 

resolution adopted at a prior convention that set a new 
precedent, the policy is continued?

A. Just as a matter of precedent, I think that is the 
case. I don’t think there has been any regulation so far 
as I know, I don’t have any records to go by, I have no 
way to speak from the records, just from my observation 
of the way things are carried on, that is pretty generally 
carried, the truth of it is it is a loose jointed organization. 
If anybody can tell what to do they are beyond me, I don’t 
know.

Q. Here is what I was getting at: When you became
chairman did the Democratic party in convention con­
tinue the policies that had been in effect or adopt a new 
policy in reference to the policy of the Democratic con­
vention?

A. I don’t know. That was my first convention. I 
don’t know what they did was new or old or what. Just 
from my impression of things I presume they went along 
in the usual slip-shod way of handling things. That is not 
very complimentary of the Democratic party; that is the 
way it takes place, whoever wants to get up to make a 
resolution if he can say anything before anybody else it 
usually gets by. It is pretty hard to say there is any fixed 
policy, it is a policy that the convention does whatever the 
people there want to do at that time. There is no rule



127

to keep them from doing it some other way if they want to. 
That is the best I can say. That is the way it has been 
when I was there; what they expected to happen usually 
did not happen.

Q. But the orderly procedure of the primary election 
is regulated by statute, it is followed section by section, 
that keeps it in a general channel, doesn’t it?

A. Well, I will tell you, as a Democrat I don’t think the 
legislature has got a darn thing to do with the Democratic 
party. As a matter of convenience we follow the statute 
in reference to these things. I don’t think the legislature 
could have anything to do with it. If we did not do it, 
there is not a thing they could do about it; just like I am 
a Methodist, if the Methodists decide to hold our quarterly 
conference in Fort Worth and it is not in our district, it is 
not anybody’s business if we decide to hold it there. I feel 
the same thing about the Democratic party. It is an or­
ganization that has to follow the statute except in refer­
ence to fraud, if we violate the fraud statute and there is 
corruption I think they could be prosecuted like my boys 
could perpetrate a fraud on me in the business, otherwise 
I don’t think the legislature has anything to do with it.

Q. You do follow it?
A. As a matter of convenience it is followed. I think 

we would have considerable argument if we tried to change 
it to some other date because it is a matter of convenience. 
If people have a definite time fixed for a certain thing to 
happen it is a lot easier to celebrate the Fourth of July on 
the Fourth; in fact, Thanksgiving comes all right on the 
new date, then it is a matter of convenience, it is Thanks­
giving any time you happen to have it; Christmas follows 
the birth of Christ, naturally there would be some kick 
about changing it, but if I want to celebrate Christmas like 
these people in Little America in July, it would be all 
right.

Q. What about the way the candidates are put on the 
ballot and types of the ballot used—how arc they put on 
there—to make certain the election is carried out?



128

A. That is made to prevent fraud in elections. We 
don’t have to follow those forms at all. There is one 
thing we do have to do under the statutes, it is a thing the 
Republican party and all others have to do, we have to pre­
sent to the election officials properly accredited candidates 
to get them on the ballot. In order to do that it is better 

• to have a uniform system in the primary; we follow a uni­
form sysem. I think we have changed the forms we make 
out several times. There is no cut and dried form we send 
out. My committee makes up those forms and sends them 
out. We have a different one—a different primary form 
from that used two years ago.

Q. Mr. Germany, you say the Democratic party is re­
quired to present—to certify candidates under the primary 
election law?

A. To certain other general election officials.
Q. That certificate certifies them, shows they have been 

elected according to primary election laws and in accord­
ance with the laws of Texas?

A. In accordance with the laws of Texas.
Q. I believe you said that was a necessity or pre­

requisite to get them on the general election ballot?
A. It is necessary that they be certified in time the gen­

eral election is fixed a certain date, it must be prior to that 
time in order that the general election officials will have 
time to print the ballot, get it out, that is the first essen­
tial; the second essential is that the general election offi­
cials must have the names—must be presented names in 
accordance with the statutes. We have to give a man’s 
correct name if we know what it is that was nominated so 
that the man nominated will appear on the general elec­
tion ballot, though it is only a matter of meeting the re­
quirements of the general election law, beyond that I 
don’t think the legislature has anything to do with holding 
our primary.

Q. So far as you know they always follow it?



129

A. They follow them pretty closely—they don’t ex­
actly, in fact, they could not, the average election official 
does not know enough for all of them to follow the same 
procedure,
The Court:

Were there some crosses of Mr. Germany?
Mr. Durham:

No, sir, no crosses. No cross examination of either wit­
ness.

We desire at this time to offer the deposition of Mr. 
C. A. Butcher.

115 C. A. BUTCHER was thereupon called as a wit­
ness on behalf of the plaintiff and, being first 

duly sworn, testified by deposition as follows:

Direct Examination.

By Mr. Durham:
Q. What are your initials, Mr. Butcher?
A. C. A.
Q. You live in Travis County?
A. Yes.
Q. How long, Mr. Butcher, have you resided in Travis 

County?
A. About—a little over two years.
Q. A little over two years?
A. That’s right.
Q. Are you now connected with what is known as the 

Democratic party of Texas?
A. No.
Q. You do not hold any official capacity in it?
A. I have no official capacity—don’t know what you 

call official capacity. I am called the secretary, but I have 
no power whatever.



130

Q. No power?
A. No vote, and I do not even voice the opinions of the 

members of the committee.
Q. You are serving now as secretary?
A. That’s right.
Q. How long have you served in that capacity?
A. Well, I served the last administration and this one.
Q. For about three or three and a half years?
A. Approximately.
Q. Approximately three and a half years?
A. Yes.
Q. What are your duties as secretary?
A. I take notes of meetings and prepare minutes.
Q. You take notes. Do you keep a record of the min­

utes?
A. I keep a record of the minutes of the convention.
Q. You keep a record of the business of the conven­

tion?
A. Yes.
Q. Do you keep a record, or did you keep a record of 

the business of the last convention; that is, the guberna­
torial convention hold in September?

A. Yes.
Q. Then I believe you kept a record of the guberna­

torial convention that was held two years prior to last 
September?

A. Which was that?
Q. In Beaumont.
A. I am sorry to say I do not have all those minutes; I 

have never been able to get them. That is the meeting of 
the executive committee.

Q. You just have the minutes of the executive com­
mittee?

A. I have just our administration.
Q. Your administration only?
A. Yes.



131

Q. Are there any permanent records that you know of 
of the Democratic party in Texas?

A. No, not that I know of.
Q. You did not take any of the minutes of that meet­

ing?
A. No, not of that meeting.
Q. Or any of the previous meetings?
A. No.
Q. You say it is your duty to keep a record of the meet­

ings and certify the names of the candidates or nominees 
to the Secretary of State, after they have been canvassed?

A. That’s right.
Q. And each year since you have been serving as sec­

retary, the Democratic party in Texas has held a primary 
election?

A. No, we have had only one primary since I have been 
secretary.

Q. That was in 1940?
A. Yes.
Q. Last year?
A. That is right.
Q. They held a primary election July 27, 1940?
A. That is right.
Q. And the run-off on August 24, 1940?
A. That is right.
Q. And those elections were held under the statutes, 

according to the statutes governing the primary elections 
in Texas?

A. That is right.
Q. And so far as you know the Democratic party has 

been conducting the primary elections in accordance with 
the primary laws and the general election laws of Texas?

A. Well, so far as I know, of course. To the best of 
my ability I tried to set them up that way.

Q. That was the practice of the party, to hold the elec­
tions under the statutes and in accordance with the stat­
utes?



132

A. That is right.
Q. And that has been the general practice, Mr. Butcher, 

so far as you have been able to ascertain from the records, 
what few records you have?

A. So far as I know. Just like I told you, I don’t know 
anything about what they did before, because I have not 
been active in that at all.

Q. Now, how is the business of the Democratic party 
operated with reference to leading up to the elections and 
holding the elections—that is, what procedure do you go 
through?

A. Well, how do you mean?
Q. To make myself clear—with reference to holding 

the primary elections, what procedure do you go through 
in order to hold that election? What does the officers of 
the Democratic party do, if anything, in connection with 
the preparation for holding the elections?

A. The candidates for office have to file with the com­
mittee.

Q. Then what, if anything, does the officials of the con­
vention or the party do?

A. The officials of the convention, after the election?
Q. No, what do they do with reference to that applica­

tion—the candidates, as I understand, file an application 
to become a candidate?

A. That is right.
Q. And that is filed with the secretary of the executive 

committee?
A. The chairman.
Q. The chairman; then what, if anything, does the 

members of the committee do?
A. The members of the committee at their meeting 

have prepared the ballots; the way the names are put— 
well, they don’t do that, either. They prepare the ballot 
to a certain extent but the way the State is set up, I be­
lieve the counties have the right to arrange the names in 
each county, but we do certify these names to each county 
chairman in the State.



133

Q. And then they are placed on the ballot by the 
county executive committee?

A. That is right.
Q. And the order in which they draw the names?
A. That is right.
Q. After the election those who are nominated then 

are certified back to the secretary of the executive com­
mittee; is that right?

A. No, the results are reported back to the committee 
and we make a tabulation of the result, you see.

Q. And then those that receive the majority of the 
votes are certified to the election officials for their names 
to appear on the general ballots; is that right?

A. That is right.
Q. And the names of the candidates who are nomin­

ated in that election are certified to the Secretary of State; 
is that right?

A. That is right.
Q. Have you any set rules for running the affairs of 

the convention, Mr. Butcher?
A. Well, to a certain extent.
Q. To a certain extent?
A. Yes. The statutes set up certain regulations per­

taining to the convention, that is, as to dates and so on, you 
know; the manner in which the location is selected for 
holding the convention.

Q. I believe you say you have no rules, save and except 
the laws of the State of Texas for governing the conven­
tion of the party?

A. No, the party is ruled, outside of the statutes, by the 
action of the party.

Q. You have no fixed rules?
A. No.
Q. The only rules and regulations that you have fixed 

for the government of the affairs of the party, is simply 
the laws of the State of Texas—the election laws of the 
State of Texas?



134

A. That is right.
Q. Now, at either of the conventions that you attended, 

Mr. Butcher, and especially the convention that was held 
in May, 1940, was there any action taken by the conven­
tion to bar negroes from participating in the primary elec­
tion?

A. I never heard it mentioned at any convention I 
have attended.

Q. Not that you have attended?
A. Not that I have any recollection of, and I know 

there was no action taken.
Q. I think that is all, Mr. Butcher; thank you.

122 CHARLES E. KAMP was thereupon called as a
witness on behalf of the defendants and, having 

been first duly sworn, testified as follows:

Direct Examination.

The Witness:
Your Honor, I want to prove up a lost instrument and 

I want to lay the predicate for the introduction of verbal 
testimony in lieu of presenting the instrument itself.

My name is Charles E. Kamp. I am a practicing attor­
ney at the Bar of Harris County, Texas. I am at present 
chairman o f the Harris County Democratic executive com­
mittee. I was first elected to that position by the mem­
bers of the Democratic party at a county-wide election in 
1938 and I was re-elected to that position in the same man­
ner in the Democratic primary election of July, 1940. 
Previous to that I served as secretary of the Harris County 
Democratic executive committee for a period of four years, 
ending with the last day of December, 1932, being ap­
pointed to that position by the then chairman, Mr. John 
B. Lubbock. During that period of four years that I served



135

as secretary of the executive committee of Harris County 
I was a practicing attorney at the Bar of Harris County, 
Texas, and defended some three or four or five of these 
suits brought by negroes in which they attempted to par­
ticipate in Democratic primary affairs.

Because of the holding of the Supreme Court of the 
United States in the latter part of 1931 or the forepart of 
1932, as I recall it, in a case styled Nixon versus Herndon 
with respect to the action of the State Democratic execu­
tive committee in promulgating a rule excluding the ne­
groes from participation in Democratic primary elections, 
I made a recommendation to the Democratic party of Texas 
in convention assembled at Houston, Texas, on May 24, 
1932, being a State convention, that a resolution be passed 
which might meet the test handed down by Mr. Justice 
Cardozo in that case. This State Democratic Convention 
met at the City Auditorium in Houston, Texas, being 
State-wide, and I was a member of the resolutions com­
mittee and I recommended the passage of a resolution, 
which was passed. The resolutions committee brought 
that resolution to the floor and moved its adoption. It was 
duly seconded. The motion was duly seconded. The ques­
tion was put by the chairman of that convention and that 
motion was unanimously passed and adopted by that con­
vention. I know the contents of that resolution because I 
helped frame it. After that resolution had been unani­
mously passed by that convention, I took that resolution 
because I had been acting as attorney in these cases and 
we of the convention believed that the negroes would file 
another suit testing that mandate of the people of Texas 
and take it to the Supreme Court of the United States to 
determine if it met the test. I took that resolution and 
took it to my office.

Following that, one more case of this nature was filed 
in Harris County, being styled Grovey versus Townsend, 
originating in the Justice of the Peace Court for Harris 
County, Texas, Precinct No. 1, being a suit for $10.00 in



136

damages. A demurrer was sustained in that Court and an 
appeal was taken direct to the Supreme Court of the 
United States and the Supreme Court of the United States 
then passed on the question. The Supreme Court of the 
United States in its opinion reported in 295 U. S. 45, styled 
Grovey versus Townsend, quotes that resolution in full.

I have looked for that resolution and I am unable to find 
it. The place where it would most likely be kept is in my 
files; more especially in one of the files in connection with 
one of these suits in which I have appeared in Court as 
counsel, and I am unable to find it and I don’t know its 
whereabouts. I have discussed its loss with the secretary 
of the State Democratic executive committee, Mr. Butcher, 
in Austin, whose deposition was introduced this morning, 
and Mr. Butcher says he is unable to find it and knows 
nothing about it.

On January 1 of 1933 I left the private practice of law 
and became an assistant district attorney in this county, 
where I remained for five and a half years. The next case 
of this nature that arose following the adoption of that 
resolution was then handled by Mr. Nipp, an attorney in 
Houston, and I talked to Mr. Nipp about this resolution 
and Mr. Nipp doesn’t have the original resolution and 
knows nothing about the original. I am unable to find it. 
I do know its contents. I helped frame it and I have lost 
it, and I would now like to introduce the contents of that 
resolution by parol.

Mr. Marshall:
If Your Honor please, at this point we wish to make an 

objection to the introduction of any parol testimony as to 
any purported resolution. First of all, I would like to go 
into the facts as so carefully set out by Mr. Kamp. In the 
first place, it seems to me that in any ordinary type of 
procedure for an organization, a resolution as passed would 
be some place in the records of the organization itself. I 
think that either the chairman of the executive committee



137

or the chairman of the convention or the secretary of the 
convention back there should have been questioned as to 
where that resolution is. I think there should be some 
connection. The only effort he has made to find the reso­
lution within the State Democratic committee is in connec­
tion with Mr. Butcher, who has only been secretary for 
about two years.

The Court:
He tells though, counsel, that he took it away from the 

convention itself and brought it back to his office.

Mr. Marshall:
If Your Honor please, the taking away of a paper like 

that, it seems to me, is strictly out of the ordinary; a paper 
of that type; and theer must be a copy of that paper. Oth­
erwise, I don’t see how this particular resolution, that is 
out in the air, carried away by Mr. Kamp, has any control 
over the party itself, and as I understand it, this is a reso­
lution of the body that control the party.

The Court:
What position does Mr. Butcher now hold?
A. Your Honor, he is. secretary of the State executive 

committee.
I should like to make an explanation to you in answer to 

counsel’s statement about the records that are kept.

The Court:
Yes, sir.

A. I have attended many Democratic conventions, 
State and county, and so far as I know I have never seen a 
set of minutes kept by anyone in those conventions. I 
don’t know who the secretary of that particular convention 
was. I don’t know who the temporary chairman was, nor 
do I know who the permanent chairman was. They are

\



138

elected on the floor at that time. Mr. Butcher would have 
no reason to have this resolution; nor would Mr. Germany, 
because the State executive committee has no right, so far 
as I know, to a copy of those proceedings.

The Court:
Well, you do testify that the resolution as drawn by you 

was passed by the convention?
A. Unanimously passed without a dissenting vote.

The Court:
And then you took the resolution away?
A. I did, sir.

The Court:
And you propose to offer parol evidence to show what 

it was?
A. Yes, sir.

The Court:
I think you may do so. Objection overruled.

Mr. Marshall:
Exception.

The Witness:
May I dictate it to the Reporter?

The Court:
Yes, sir. What are you reading from?
A. I am reading from a paper of my own. It was 

drawn up first in the form of a stipulation. I had hoped 
we could stipulate, but we couldn’t, and I have to refer to 
this, if it please the Court. I have also checked this back 
against the quoted resolution in the case of Grovey versus 
Townsend that I have just mentioned and I know that it is 
verbatim.



139

Mr. Marshall:
If it please the Court, I hate to continue to raise objec­

tions, but under a recent decision of the U. S. Supreme 
Court it is impossible to use the facts that have been de­
cided in one case to decide an issue in another case, even 
though the facts revolve around the same instrument. 
Now we certainly object to any reading of any purported 
statement or any purported resolution when the only fact 
we have here is that Mr. Kamp is positive that he remem­
bers exactly what it is, and then he comes back and he 
has read from some paper that we know absolutely noth­
ing about.
The Court:

Objection overruled.
A. “Be it resolved that all white citizens of the State of 

Texas who are qualified to vote under the Constitution and 
laws of the State shall be eligible to membership in the 
Democratic party and, as such, entitled to participate in 
its deliberations.”

That is the end of the resolution.
Now I would like to give this further testimony: That

since the adoption of this resolution by the Democratic 
party in convention assembled on May 24, 1932, that reso­
lution has never by any State Democratic convention in 
Texas been amended, abrogated, annuled, or avoided.
The Court:

You testify to that from personal knowledge?
A. I do, sir, yes, sir. I have kept in constant touch 

with Democratic affairs and conventions in Texas.
Mr. Marshall:

Are you through?
The Witness:

Not yet.
Mr. Marshall:

Oh. Excuse me.



140

A. I should like to state that the Democratic primary- 
elections held in Harris County, Texas, on July 27, 1940’ 
and August 24, 1940, were nominating elections and the 
candidates nominated by the Democratic party thereat be­
came candidates for election to the respective offices for 
which they sought the nomination at a general election 
held in Harris County, Texas, on November 5, 1940. At 
the general election on November 5, 1940, neither the plain­
tiff in this case nor any other colored person or negro was 
denied the right to vote.

The Democratic party of Texas is a political party and 
the Harris County Democratic party is a subdivision of 
that State-wide political party. Neither the County Judge 
nor the Commissioners Court of Harris County, Texas, ex­
ercised any supervision over the Democratic primary elec­
tions of July and August of 1940, or any other primary 
elections that I know anything about. The instructions 
that the presiding judges, assistant judges, clerks and su­
pervisors receive come either from me as chairman of the 
Harris County Democratic executive committee or the 
regulations are promulgated by the executive committee 
itself at a meeting it holds of its membership approxi­
mately a month before the first primary election of every 
even year. By “even year” I mean in 1938, 1940, and so 
forth.

That is all.

The Court:
You may cross examine.

Cross Examination.

By Mr. Marshall:
Q. Have you attended every convention of the Demo­

cratic party?
A. Every one but the last one.



141

Q. When was the last one held?
A. In 1940 in Mineral Wells.
Q. What month?
A. May. It is always in May.
Q. You didnt’ attend the one in May?
A. I did not.
Q. Well then, as a matter of fact, you can’t testify of 

your own personal knowledge that no action at all has 
been taken on that 1932 resolution since that time, can 
you?

A. I wasn’t there, but I keep up with those affairs and 
I know it wasn’t.

Q. But of your own personal knowledge, since you 
were not there, you do not know what action, if any, might 
have been taken on that resolution?

A. I wasn’t on the convention floor nor in the conven­
tion city.

The Court:
What did Mr. Butcher and Mr. Germany say about that 

in their depositions? They just testified that there had 
been no resolution passed, didn’t they?

Mr. Marshall:
During their time and that they had no records and that 

they weren’t quite sure what had happened.

The Court:
Well, they testified that in so far as they knew no reso­

lution of any kind had been passed.

Mr. Marshall:
Had ever been passed.

The Court:
Either rescinding the 1932 resolution or adopting a new 

one.



142

Mr. Marshall:
The only question we asked was whether or not while 

they were in office any action had been taken by the Dem­
ocratic party to bar negroes from voting in the primaries.

The Court:
And they answered in the negative?

Mr. Marshall:
Yes, sir.

The Court:
That would mean, wouldn’t it, that this 1932 resolution 

was not disturbed?

Mr. Marshall:
I don’t know, sir, because in their deposition they say 

they have no minutes and they are not sure. Mr. Ger­
many says, and I would like to read his language, that he 
was quite sure what had happened.

The Court:
Well, you stated it this morning. Go ahead.

(By Mr. Marshall):
Q. In connection with the other conventions you have 

attended since 1932, have you been on the floor of the con­
vention during the entire time the convention was in ses­
sion?

A. Been on the floor of the convention when all of its 
business was being acted on.

Q. During each convention?
A. During each convention, that is right.
Q. Now do you have any records at all in your office 

showing any action taken by any of the conventions you 
have attended?

A. Actions concerning what?



143

Q. Anything.
A. I would have no reason to, no.
Q. Now, this purported resolution that was passed in 

1932, have you made any effort to find a copy of it?
A. I have gone through my papers. When you speak 

of a copy of it, my answer is no. I simply find a continued 
series of this resolution that I have read into the record 
among the papers in cases that I have handled.

Q. I mean have you made any effort to find a copy of it 
in anyone else’s possession?

A. There was no copy of that resolution. That reso­
lution was drawn up with some other resolutions and pre­
sented to the floor of the convention and passed.

Q. And passed and you just carried it away with you?
A. That is right.
Q. I think you testified before that you didn’t know 

who was secretary of that convention and who was the 
permanent chairman?

A. I do not.
Q. The 1932 convention?
A. I do not.
Q. Have you made any effort to find out?
A. I don’t know where to go. I don’t know what source 

to go to to find out. I couldn’t tell you who the chairman 
of these conventions has been. They are nominated and 
elected from the floor. They serve and then the conven­
tion is dissolved and that is all there is to it.

Q. Well then, when the convention dies, the duties of 
the permanent officers all die with the convention?

A. That is correct. Die right there.
Q. Well now, speaking of the State Democratic party 

in Texas, at the present time between two conventions 
what is the Democratic party in Texas now?

A. The Democratic party between two conventions is 
composed of a group of individuals who have particular or 
peculiar political ideals and beliefs.



144

Q. Just scattered around in the State?
A. Oh, no. They are very well organized.
Q. Well, how are they organized? You said the officers 

all die with the convention.
A. I don’t understand. Would you mind connecting 

those two questions?
Q. I am speaking of the State party itself.
A. All right. Ask your question.
Q. Now the State party itself, as I understand, when 

the convention stops, all of the State officers of the con­
vention stops?

A. That is right.
Q. Now is there any other group of officers, with the 

exception of the State executive committee, existing in 
the Democratic party in Texas at the present time?

A. There is not.
Q. What is there of the State Democratic party be­

tween conventions with the exception of the State execu­
tive committee?

A. I am sorry. I don’t understand your question.
Q. There is no chairman, is there?
A. There is a State Democratic chairman.
Q. He is the chairman of the executive committee, is 

he not?
A. That is right. He is chairman of the State execu­

tive committee.
Q. But there is no chairman of the party itself?
A. That is right. The moment that convention closes 

or adjourns the officers of that convention cease to func­
tion. They have nothing to do.

The Court:
Might not the chairman of the executive committee be 

the chairman of the party? Not of the convention, but of 
the party?

A. Judge, it would be hard for me to answer that. I 
don’t know. If he would be chairman of the party, then I



145

would probably be chairman of the party in Harris County, 
but I have never considered myself as such. I have con­
sidered myself an administrative party official, of the busi­
ness and of it, but not of the party itself. I have never con­
sidered myself as such. I have always considered that I 
had a particular job to do, but I do not consider myself as 
head of the Democratic party in Harris County.
The Court:

Well, the party, after the convention adjourns, and the 
party’s general managers roll up a pretty good majority at 
the November elections, do they not?

A. Yes, sir, they do right well.
Mr. Marshall:

If you will give me just a moment, Your Honor, I can 
find in here where Mr. Germany explains what his duties 
are between conventions, and he denies that he is chair­
man of the party. He insists he is chairman of the execu­
tive committee with practically no power at all.
The Court:

Well, if it is in there, it is already in evidence.
Mr. Marshall:

Do you want me to read it, sir?
The Court:

No, sir. I was just asking out of curiosity. I don’t know 
much about it.
(By Mr. Marshall):

Q. Now carrying the point further, when the one con­
vention dies and the other convention becomes organized, 
does it not set up its own rules and regulations?

A. Each convention sets up its own rules and regula­
tions.

Q. And is it not completely independent of any prior 
conventions?

A. In what respect?



146

Q. Well, is there anything that prevents it from doing 
what it might want to do? Are there any set rules and 
regulations in writing any place to control it?

A. In respect to what?
Q. In respect to the transaction of business. Let’s 

start back at the beginning. There are no set rules and 
regulations in writing governing the convention?

A. That is correct.
Q. There is no constitution?
A. That is correct.
Q. No by-laws?
A. That is right.
Q. When one convention is assembled, is there any­

thing in any prior convention that is absolutely binding on 
the existing convention?

A. Oh, yes, I think so.
Q. Is there anything that any prior convention has done 

that the existing convention can’t rescind?
A. Oh, I think it could rescind it if it wanted to, but 

until it is rescinded, I think the act of the prior conven­
tion is a continuing act and is in effect.

Q. But there is nothing to prevent this existing con­
vention from taking any action it sees fit?

A. Oh, no.
The Court:

In other words, the convention in 1934 could have re­
scinded this resolution of 1932 had it seen fit to do so? Is 
that what you are telling us?

A. Yes, sir.
The Court:

And you think until it is so rescinded, either in 1934, 
1936 or 1940, that it is still the law of the Democratic party 
in Texas?

A. That is right, sir.
(By Mr. Marshall):



147

Q. Are there any other qualifications set out by the 
Democratic party for voting in the primary elections that 
you know of?

A. That is the only one that I know anything about.

Mr. Marshall:
I think that is all.

138 APPEAL BOND.
Filed June 6, 1942.

(Title Omitted.)
Whereas, on May 30, 1942, the defendants S. E. AIL 

wright and James J. Liuzza, received a judgment in the 
above entitled cause, from which judgment plaintiff, Lon­
nie E. Smith, desires to take an appeal to the Circuit Court 
of Appeals for the Fifth Circuit:

Now, Therefore, Know All Men By These Presents: 
That we, Lonnie, E. Smith, as principal, and A. A. Lucas 
and Julius White, as sureties, acknowledge ourselves bound 
and obligated in the sum of Two Hundred and Fifty 
($250.00) Dollars; conditioned that the said Lonnie E. 
Smith will pay all costs in said cause if his appeal to the 
United States Circuit Court of Appeals for the Fifth Circuit 
is dismissed or said judgment is affirmed by said Court or 
said costs as the Appellate Court may award if the judg­
ment is modified.

Witness the execution hereof this 6th day of June, 1942.
LONNIE E. SMITH,

(Lonnie E. Smith)
Principal.

A. A. LUCAS,
(A. A. Lucas)

JULIUS WHITE,
(Julius White)

Sureties.



148

139 NOTICE OF APPEAL.

Filed June 6, 1942.

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

Lonnie E. Smith, Plaintiff,
vs. Civil Docket No. 645.

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

Notice is hereby given that Lonnie E. Smith, plaintiff 
in the above cause, appeals to the Circuit Court of Appeals 
of the Fifth Circuit from the final judgment entered in 
this action on May 30, 1942.

Dated this 5th day of June, 1942.
THURGOOD MARSHALL, 

(Thurgood Marshall)
W. J. DURHAM,

(W. J. Durham)
H. S. DAVIS, JR.,

(H. S. Davis, Jr.)
Attorneys for Plaintiff- 

Appellant.
409% Milam Street,

Houston, Texas.



149

140 CLERK’S CERTIFICATE.

United States of America,
Southern District of Texas.

I, HAL V. WATTS, Clerk of the District Court of the 
United States, for the Southern District of Texas, in the 
Fifth Circuit and District aforesaid, do hereby certify the 
foregoing to be a true and correct copy of the record and 
all proceedings had in the case, as called for in the Desig­
nation for contents of record on Pages 1 and 2 of this 
Transcript, in Cause No. 645 on the Civil Action Docket of 
said Court at Houston, entitled Lonnie E. Smith, Suing on 
Behalf of Himself and on Behalf of Other Qualified Negro 
Voters in the State of Texas, versus W. D. Miller, County 
Clerk of Harris County, Texas, and S. E. Allwright, Elec­
tion Judge, and James J. Liuzza, Associate Election Judge, 
and James J. Liuzza, Associate Election Judge, 48th Pre­
cinct of Harris Court, Texas, as the same now appears on 
file and of record in my office.

To Certify Which, Witness my hand and the Seal of 
said Court at Houston, in said District, this the 7th day of 
July, A. D. 1942.

HAL V. WATTS,
(Seal) Clerk, United States District

Court, Southern District of 
Texas,

By S. F. CUNNINGHAM,
Deputy.



E. S .  UPTON P R IN T IN G  C O . ,  NEW ORLEAN S— 72129