James v. Stockham Valves and Fittings Company Appendix to Plaintiffs' Proposed Findings of Fact and Post-Trial Brief

    I k  the

£>u;mw ©curt o f the llmteh §>tatPB
October T erm, 1947

No. 668

Clay R ice, et al.,
Petitioners,

v.
George E lmore, ok Behalf of H imself akd Others 

S imilarly Situated,
Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO 
PETITION FOR CERTIORARI

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

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

Of Counsel.



INDEX

PAGE
Statement of the Case___________________________________________ 1

Reasons for Denying the Petition_______________________________ 2

Conclusion ______________________________________________________  9

TABLE OF CASES

Carolina National Bank of Columbia v. State, 38 S. E. 629________  8
Chapman v. King, 154 F. (2d) 460_________________________________  8

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



I n  the

Supreme Court o f thr Imtrfc i>tat?o
Octobek T eem, 1947

No. 668

Clay E ice, et al., 
Petitioners,

v .

George E lmore, on B ehalf of H imself and Others 
S imilarly S ituated,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO 
PETITION FOR CERTIORARI

STATEMENT OF THE CASE

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

As the court below found:

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



2

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

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

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

REASONS FOR DENYING THE PETITION

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

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



3

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

“ Where the state law has made the primary an in­
tegral part of the procedure of choice, or where in fact 
the primary effectively controls the choice, the right of 
the elector to have his ballot counted at the primary is 
likewise included in the right protected by Article I, Sec. 
2. And this right of participation is protected just as 
is the right to vote at the election, where the primary is 
by law made an integral part of the election machinery, 
whether the voter exercises his right in a party primary 
which invariably, sometimes or never determines the 
ultimate choice of the representative. Here, even apart 
from the circumstance that the Louisiana primary is 
made by law an integral part of the procedure of choice, 
the right to choose a representative is in fact controlled 
by the primary because, as is alleged in the indictment, 
the choice of candidates at the Democratic primary de­
termines the choice of the elected representative. More­
over, we cannot close our eyes to the fact, already men­
tioned, that the practical influence of the choice of 
candidates at the primary may be so great as to affect 
profoundly the choice at the general election, even 
though there is no effective legal prohibition upon the 
rejection at the election of the choice made at the pri­
mary, and may thus operate to deprive the voter of his 
constitutional right of choice.”  (313 U. S. 299, 318-319.) 
Italics supplied.

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

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



4

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

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

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

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



5

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

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

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

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

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



6

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

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

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

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

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

* Certiorari denied, 326 U. S. 721.



7

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

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

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

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

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

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



8

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

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

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



9

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

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

CONCLUSION

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



10

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

Respectfully submitted,

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

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

Of Counsel.