Smith v Allwright Brief of Appellant

    A PR  4 1944

SUPREME COURT OF THE UNITED STATES.
No. 51.— October T erm, 1943.

S.

Lonnie E. Smith, Petitioner, 
vs.

E. Allwright, Election Judge, " 
et al.

On Writ of Certiorari to 
the United States Circuit 
Court of Appeals for the 
Fifth Circuit.

[April 3, 1944.]

• Mr. Justice Roberts.

In Mahnich v. The Southern Steamship Co., No. 200 of the 
present term, I have expressed my views with respect to the 
present policy of the court freely to disregard and to overrule 
considered decisions and the rules of law announced in them. 
This tendency, it seems to me, indicates an intolerance for what 
those who have composed this court in the past have conscientiously 
and deliberately concluded, and involves an assumption that knowl­
edge and wisdom reside in us which was denied to our predecessors. 
I shall not repeat what I there said for I consider it fully ap­
plicable to the instant decision, which but points the moral anew.

A word should be said with respect to the judicial history form­
ing the background of Grovey v. Townsend, 295 U. S. 45, which 
is now overruled.

In 1923 Texas adopted a statute which declared that no negro 
should be eligible to participate in a Democratic primary election 
in that State. A negro, a citizen of the United States and of Texas, 
qualified to vote, except for the provisions of the statute, was 
denied the opportunity to vote in a primary election at which 
candidates were to be chosen for the offices of senator and repre­
sentative in the Congress of the United States. He brought action 
against the judges of election in a United States court for damages 
for their refusal to accept his ballot. This coirrt unanimously re­
versed a judgment dismissing the complaint and held that the 
judges acted pursuant to State law and that the State of Texas, 
by its statute, had denied the voter the equal protection secured 
by the Fourteenth Amendment. Nixon v. Ilerndon, 273 U. S. 536 
tl927).



In 1927 the legislature of Texas repealed the provision con­
demned by this court and enacted that every political party in 
the State might, through its Executive Committee prescribe the 
qualifications of its own members and determine in its own way 
who should bd qualified to vote or participate in the party, except 
that no denial of participation could be decreed by reason of 
former political or other affiliation. Thereupon the State Execu­
tive Committee of the Democratic Party in Texas adopted a reso­
lution that white Democrats, and no other, should be allowed to 
participate in the party’s primaries.

A  negro, whose primary ballot was rejected pursuant to the 
resolution, sought to recover damages from the judges who had 
rejected it. The United States District Court dismissed his action, 
and the Circuit Court of Appeals affirmed; but this court reversed 
the judgment and sustained the right of action by a vote of 5 to 
4. Nixon v. Condon, 286 U. S. 73 (1932).

Ihe opinion was written with care. The court refused to decide 
whether a political party in Texas had inherent power to deter­
mine its membership. The court said, however: “ Whatever in­
herent power a State political party has to determine the content 
of its membership resides in the State convention” , and referred 
to the statutes of Texas to demonstrate that the State had left the 
Convention free to formulate the party faith. Attention was 
directed to the fact that the statute under attack did not leave 
to the party convention the definition of party membership but 
placed it in the party’s State Executive Committee which could 
not, by any stretch of reasoning, be held to constitute the party. 
The court held, therefore, that the State Executive Committee 
acted solely by virtue of the statutory mandate and as delegate 
of State power, and again struck down the discrimination against 
negro voters as deriving force and virtue from State action,—  
that is, from statute.

In 1932 the Democratic Convention of Texas adopted a reso­
lution 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.”

A negro voter qualified to vote in a primary election, except 
for the exclusion worked by the resolution, demanded an absentee 
ballot which he was entitled to mail to the judges at a primary

51
2 Smith vs. Allwriglit et al. 2



3 3
election except for the resolution. The county clerk refused to 
furnish him a ballot. He brought an action for damages against 
the clerk in a state court. That court, which was the tribunal 
having final jurisdiction under the laws of Texas, dismissed his 
complaint and he brought the case to this court for review. After 
the fullest consideration by the whole court1 an opinion was 
written representing its unanimous views and affirming the judg­
ment. Grovey v. Townsend, 295 U. S. 45 (1935).

I believe it will not be gainsaid the case received the attention 
and consideration which the questions involved demanded and 
the opinion represented the views of all the justices. It appears 
that those views do not now commend themselves to the court. 
I shall not restate them. They are exposed in the opinion and 
must stand or fall on their merits. Their soundness, however, is 
not a matter which presently concerns me.

The reason for my concern is that the instant decision, over­
ruling that announced about nine years ago, tends to bring adju­
dications of this tribunal into the same class as a restricted rail­
road ticket, good for this day and train only. I have no assur­
ance, in view of current decisions, that the opinion announced 
today may not shortly be repudiated and overruled by justices 
who deem they have new light on the subject. In the present 
term the court has overruled three cases.

In the present case, as in Mahnich v. Southern S.S. Co., No. 
200, the court below' relied, as it was bound to, upon our previous 
decision. As that court points out, the statutes of Texas have not 
been altered since Grovey v. Townsend was decided. The same 
resolution is involved as was drawn in question in Grovey v. Town­
send. Not a fact differentiates that case from this except the 
names of the parties.

It is suggested that Grovey v. Townsend was overruled sub 
silentio in United States v. Classic, 313 U. S. 299. If so, the 
situation is even worse than that exhibited by the outright re­
pudiation of an earlier decision, for it is the fact that, in the 
Classic case, Grovey v. Townsend was distinguished in brief and 
argument by the Government without suggestion that it was 
wrongly decided, and was relied on by the appellees, not as a 
controlling decision, but by way of analogy. The case is not

51
Smith vs. Allwright et al.

l  The court was composed of Hughes, C. J., VanDevanter, McReynolds, 
Brandeis, Sutherland, Butler, Stone, Boberts and Cardozo, JJ.



mentioned in either of the opinions in the Classic ease. Again 
and again it is said in the opinion of the court in that ease that 
the voter who was denied the right to vote was a fully qualified 
voter. In other words, there was no question of his being a person 
entitled under state law to vote in the primary. The offense 
charged was the fraudulent denial of his conceded right by an 
election officer because of his race. Here the question is altogether 
different. It is whether, in a Democratic primary, he who ten­
dered his vote was a member of the Democratic Party.

I do not stop to call attention to the material differences be­
tween the primary election laws of Louisiana under consideration 
in the Classic case and those of Texas which are here drawn in 
question. These differences were spelled out in detail in the 
Government’s brief in the Classic case and emphasized in its oral 
argument. It is enough to say that the Louisiana statutes re­
quired the primary to be conducted by State officials and made 
it a State election, whereas, under the Texas statute, the primary 
is a party election conducted at the expense of members of the 
party and by officials chosen by the party. If this court’s opinion 
in the Classic case discloses its method of overruling earlier de­
cisions, I can only protest that, in fairness, it should rather have 
adopted the open and frank way of saying what it was doing 
than, after the event, characterize its past ‘action as overruling 
Grovey v. Townsend, though those less sapient never realized the 
fact.

It is regrettable that in an era marked by doubt and confusion, 
an era whose greatest need is steadfastness of thought and pur­
pose, this court, which has been looked to as exhibiting consis­
tency in adjudication, and a steadiness which would hold the 
balance even in the face of temporary ebbs and flows of opinion, 
should now itself become the breeder of fresh doubt and confusion 
in the public mind as to the stability of our institutions.

51
4 Smith vs. Allwright et al. 4



mentioned in either of the opinions in the Classic case. Again 
and again it is said in the opinion of the court in that case that 
the voter who was denied the right to vote was a fully qualified 
voter. In other words, there was no question of his being a person 
entitled under state law to vote in the primary. The offense 
charged was the fraudulent denial of his conceded right by an 
election officer because of bis race. Here the question is altogether 
different. It is whether, in a Democratic primary, he who ten­
dered his vote was a member of the Democratic Party.

I do not stop to call attention to the material differences be­
tween the primary election laws of Louisiana under consideration 
in the Classic case and those of Texas which are here drawn in 
question. These differences were spelled out in detail in the 
Government’s brief in the Classic case and emphasized in its oral 
argument. It is enough to say that the Louisiana statutes re­
quired the primary to be conducted by State officials and made 
it a State election, whereas, under the Texas statute, the primary 
is a party election conducted at the expense of members of the 
party and by officials chosen by the party. If this court’s opinion 
in the Classic case discloses its method of overruling earlier de­
cisions, I can only protest that, in fairness, it should rather have 
adopted the open and frank way of saying what it was doing 
than, after the event, characterize its past ‘action as overruling 
Grovey v. Townsend though those less sapient never realized the 
fact.

It is regrettable that in an era marked by doubt and confusion, 
an era whose greatest need is steadfastness of thought and pur­
pose, this court, which has been looked to as exhibiting consis­
tency in adjudication, and a steadiness which would hold the 
balance even in the face of temporary ebbs and flows of opinion, 
should now itself become the breeder of fresh doubt and confusion 
in the public mind as to the stability of our institutions.

51
4 Smith vs. Allwright et al. 4