Baskin v. Brown Appellants' Brief

    APPELLANTS' BRIEF

United States Court of Appeals
FOURTH CIRCUIT

No______

W. P. BASKIN et  al., A ppellants, 

versus

DAVID BROWN, on b eh a lf o f h im se lf and o th e rs  s im ila r ly  
s itu a te d , A ppellee

On A ppeal eeom t h e  D istrict Court of t h e  U nited  S tates 
fob t h e  E astern D istrict of S outh  Carolina 

Charleston D ivision

EUGENE S. BLEASE, 
Newberry, S. C.,

SIDNEY S. TISON, 
Bennettsville, S. C. 

GEORGE WARREN, 
Hampton, S. C.,

ROBERT MeC. FIGG, JR., 
Charleston, S. C.,

Attorneys for Appellants.

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



INDEX
P  AGE

Introductory Summary......... ......................................... 1

Questions Involved.............................................    3

Statement of F a c ts ......... ................................................  4

Argument:
Question I .........................................................  16
Question II ............................................................  22

Question III ..................................................  36
Question I V .............................................................  38

Conclusion ...............................    45

(i)





TABLE OF CASES
P age

Berger v. United States, 225 U. S. 22, 41 S. Ct. 230, 65 L.
Ed. 481.................................................... . 17, 21,

Brown v. Baskin, 78 F. Supp. 933 ..................................
Brown v. Baskin, 80 F. Supp. 1017..............................
Davis v. Hambrick, 109 Ky. 276, 58 S. W. 779, 22 Ivy.

Law Bep. 815, 51 L. R. A. 671 ..............................
De Jonge v. State of Oregon, 299 U. S. 353, 57 S. Ct. 255,

81 L. Ed. 278 ..............................................................
Elmore v. Rice, 72 F. Supp. 516 . . .  .4, 8, 10, 12, 15, 19, 
Harrell v. Sullivan, 220 Ind. 108, 40 N. E. (2d) 115, 41

N. E. (2d) 354, 140 A. L. R. 455 ...........................
Henry v. Speer, 201 Fed. 869 ........................................
Herndon v. Lowry, 301 U. S. 242, 57 S. Ct. 740, 81 L. Ed.

1066 ..................... ...................................................
Hicklin v. Coney, 290 U. S. 169, 54 S. Ct. 142, 78 L. Ed.

247 ......................................................... .................
Ingersoll v. Curran, 70 N. Y. S. (2d) 435,188 Misc. 1003,

affirmed 297 N. Y. 522, 74 N. E. (2d) 405 ...........26,
Ingersoll v. Heffernan, 71 N. Y. S. (2d) 687, 188 Misc. 

1047, affirmed 297 N. Y. 524, 74 N. E. (2d) 466 . .25,
Judicial Code, Section 21 .............................................
Kelso v. Cook, 184 Ind. 173, 110 N. E. 987, Ann. Cas.

1918E 6 8 ......... ;........................................................
In Re: Newkirk, 259 N. Y. S. 434, 144 Misc. 765 . . .  .28, 
People ex rel Lindstrand v. Emmerson, 333 111. 606, 165

N. E. 217, 62 L. R. A. 912 ...........................25, 28,
Rice v. Elmore, 165 F. (2d) 387 ----5, 38, 39, 41, 42, 43,
Smith v. Allwright, 321 U. S. 649, 64 S. Ct. 757, 88 L.

Ed. 987,151 A. L. R. 1110......................................4,
Smith v. Howard, 275 Ky. 165, 120 S. W. (2d) 1040 . . . .  
Socialist Party v. Uhl, 155 Cal. 776,103 Pac. 181 . . .  .26,

22
2

15

27

24
38

40
17

24

24

28

28
16

25
38

40
45

44
27
28

(iii)



TABLE OF CASES—Continued
P age

South Carolina Code of Laws:
Section 1269 ......................................;....................  31
Section 1271.................   32
Section 1272 .........................................   30
Section 8396 .................   31
Section 8403 ..............      31
Section 8490 .................   31
Section 8530-1 .....................................    31

South Carolina Constitution:
Article III, Section 3 3 ................ ............................  30
Article XI, Section 7 ..............................................  30

State v. Messervy, 86 S. C. 503, 68 S. E. 766 .................  41
State of Missouri ex rel Gaines v. Canada, 305 U. S. 337,

59 S. Ct. 232, 83 L. Ed. 208 ................................ 30, 32
State ex rel Tamminen v. Eveleth, 189 Minn. 229, 249

X. W. 184, 99 A. L. E. 289 ..................................... 42
Tinsley v. Kirby, 17 S. C. 1 ...........................................  41
United States v. Classic, 313 U. S. 299, 61 S. Ct. 1031,

85 L. Ed. 1368 ....................................................42, 44
United States v. Eoyer, 268 U. S. 394, 45 S. Ct. 519, 69

L. Ed. 1011..............................................................  42
United States Code, Title 28, Section 144..................3, 16
United States Constitution:

Amendment XIX ....................................................  35
Werbel v. Genrstein, 78 X. Y. S. (2d) 440,191 Misc. 275, 

affirmed 273 App. Div. 917, 78 X. Y. S. (2d) 926 .28, 38
Whitaker v. McLean, 118 F. (2d) 596 ....................... 18, 22
Zuckman v. Donahue, 79 X. Y. S. (2d) 169,191 Misc. 399, 

order modified 274 App. Div. 216, 80 X. Y. S. (2d)
698 ....................................................................... 28, 38



APPELLANTS’ BRIEF

United States Court of Appeals
FOURTH CIRCUIT

No.

W . P. BASKIN et  al., A ppellants, 

versus

DAVID BROWN, on b eh a lf of h im self an d  o th e rs  s im ila r ly  
s itu a ted , A ppellee

On  A ppeal from th e  D istrict Court of t h e  U nited  S tates 
for th e  E astern D istrict of S outh  Carolina 

Charleston  D ivision

INTRODUCTORY SUMMARY
This action was commenced on July 8, 1948, by appel­

lee, a Negro qualified elector under the Constitution and 
laws of the State of South Carolina, on behalf of himself 
and others similarly situated, against appellants, who are 
state and county officers of the Democratic Party of South 
Carolina, seeking a declaratory judgment that certain rules 
of that party being enforced by appellants as party officers 
violate appellee’s asserted rights under Sections 2 and 4 
of Article I  of the Constitution of the United States, and



2 Baskin et al., Appellants, v. Brown, Appellee

the Fourteenth, Fifteenth and Seventeenth Amendments 
thereto, and also Sections 31 and 43 of Title 8 of the United 
States Code.

A temporary injunction was granted on July 19, 1948, 
restraining the enforcement of the rules in controversy 
pending the final determination of the action. Brown v. 
Baskin, 78 F. Supp., 933. This injunction was obeyed in 
the conduct of the primaries of the Democratic Party of 
South Carolina held in the summer of 1948. Brown v. Bas­
kin, 80 F. Supp., 1017, 1018.

An affidavit was filed on October 20, 1948, by John E. 
Stansfield that he was informed and believed, on the basis 
of certain facts set forth therein, that District Judge War­
ing, before whom the cause was pending and scheduled to 
be heard, had a personal bias and prejudice in favor of ap­
pellee and against him and the other appellants by reason 
of which the said District Judge might be prevented from 
or impeded in rendering judgment impartially between the 
parties. On October 22, 1948, Judge Waring filed an order 
refusing to disqualify himself.

The cause was heard on its merits by Judge Waring 
on November 23, 1948, on the pleadings and a stipulation 
between counsel for the parties as to the facts, which stipu­
lation incorporated the testimony of appellee and appel­
lant Baskin taken July 16, 1948, at the hearing on the tem­
porary injunction, and also the platform, principles, and 
rules of the Democratic Party of South Carolina, which 
were attached as an exhibit to the return filed by appellants 
at such hearing.

On November 26, 1948, Judge Waring filed his final 
order, which in substance permanently restrained and en­
joined the enforcement of the party rules in controversy.



Baskin et a t, Appellants, v. Brown, Appellee 3

Within the proper time, a notice of appeal to this court 
was filed by appellants from the denial of the application 
for disqualification, and from the orders dated July 19, 
1948, and November 26, 1948, and the findings of fact, con­
clusions of law and opinions on which the same were based.

QUESTIONS INVOLVED
I. The Stansfield affidavit was legally sufficient under 

Title 28, United States Code, Section 144 (and Judicial 
Code, Section 21, 28 U. S. C. A., Section 25); and District 
Judge Waring should have proceeded no further in the 
cause.

II. The Democratic Party of South Carolina is a po­
litical party, having the right as such to limit membership 
in it and participation in its party actions by voting in its 
primaries to those who are in sympathy with its principles 
and the purpose of fostering and effectuating them; and 
the District Judge erred in enjoining the enforcement of 
the portion of Rule 6 of the party rules which limits mem­
bership to those who subscribe to the principles of the 
party as declared by the State Convention and Rule 36 of 
the party rules which prescribes the voter’s oath.

III. The Democratic Party of South Carolina, as a 
political party, had the right to adopt in its State Conven­
tion political and governmental principles and objectives 
of the party relating to the separation of the races, States’ 
Rights and the Federal so-caled F. E. P. C. law, and 
to exclude from membership and from voting in its pri­
maries appellee and others similarly situated who did not 
believe in and were not in sympathy with such lawful po­
litical and governmental objectives; and the District Judge 
erred in holding to the contrary and rendering judgment in 
favor of appellee.



4 Baskin et al, Appellants, v . Brown, Appellee

IV. The general election is the only election machinery 
provided by the Constitution and laws of the State of 
South Carolina; and the District Judge erred in holding 
that the primaries of the Democratic Party of South Caro­
lina, conducted and held under party rules alone, are an 
integral part of the election machinery of the State, to 
which Article I and Amendments Fourteen, Fifteen and 
Seventeen of the Constitution of the United States and 
Sections 31 and 43 of Title 8 of the United States Code are 
applicable.

STATEMENT OF FACTS
Shortly after the decision in Smith v. Allwright, 321 

U. S., 649, 64 S. Ct., 757, 11 L. Ed., 987, 151 A. L. R., 1110, 
the General Assembly of the State of South Carolina re­
pealed all state laws relating to party primary elections, 
including those punishing fraud at the same, and the Con­
stitution of the State was duly amended in accordance with 
its provisions as to amendment so as to eliminate therefrom 
the provision reading:

“ The General Assembly shall provide by law for 
the regulation of party primary elections and punish­
ing fraud at the same.”
In 1944 and in 1946 the primaries of the Democratic 

Party of South Carolina were held under party rules 
adopted at the party’s biennial State Conventions. Such 
rules restricted enrollment in the party to white Democrats, 
and restricted the right to vote in its primaries to those 
enrolled.

In Elmore v. Bice et al., 72 F. Supp., 516, an action for 
a declaratory judgment brought to test the legality of the 
action of the election managers of a precinct in Richland 
County, South Carolina, and of the members of that coun­
ty ’s Democratic Executive Committee in not permitting



Baskin et a t, Appellants, v. Brown, Appellee 5

Elmore and other qualified Negro electors to vote in the 
primary held on August 13, 1946, the District Court held:

“ I am of the opinion that the present Democratic 
Party in South Carolina is acting for and on behalf of 
the people of South Carolina; and that the Primary 
held by it is the only practical place where one can 
express a choice in selecting federal and other officials. 
Racial distinctions cannot exist in the machinery that 
selects the officers and lawmakers of the United States; 
and all citizens of this State and County are entitled 
to cast a free and untrammeled ballot in our elections, 
and if the only material and realistic elections are 
clothed with the name ‘primary’, they are equally en­
titled to vote there.”
The District Court’s decision was affirmed by this 

Court in Bice v. Elmore, 165 P. (2d), 387, and certiorari 
was denied, 333 U. S., 875, 68 S. Ct., 905.

The State Convention of the Democratic Party of 
South Carolina was held next on May 19,1948. The conven­
tion adopted a party Platform, a statement of the party’s 
Principles, and a set of Rules governing the holding of the 
party’s primaries that year.

The party Platform (found on page 28 of the “ Rules 
of the Democratic Party of South Carolina,” attached as 
an exhibit to the return to rule to show cause, pages 26-30 
of the record), includes statements that

“ We believe in States’ Rights and local self gov­
ernment, and are opposed to the Federal Q-overnment 
assuming any powers except those expressly granted 
it by the states in the Federal Constitution,” 
and

“ We believe in the social and educational separa­
tion of races. ’ ’



6 Baskin et al., Appellants, v. Brown, Appellee

The statement of the party’s principles declared by 
the state convention (found on page 29 of the Rules), in­
cluded the statements above quoted from the Platform, and 
a further statement that

“ We oppose any Federal legislation setting up
the proposed so-called F. E. P. C. Law.”
The party Rules adopted contain the following provi­

sions :
Oath required to be subscribed to by all candidates: 

(Rule 29):
“ As a candidate for the office of_________________

in the Democratic Primary to be held o n ______ day of
------------------------------------ } 19------ } I  h e reb y  p led g e  m y self to
abide the results of such primary, and support the nominees 
of this primary, and the political principles and policies 
of the Democratic Party of South Carolina, during the term 
of office for which I may be elected, and I declare that I 
am a Democrat and that I am not, nor will I become the can­
didate of any faction, either privately or publicly sug­
gested, other than the regular Democratic Party of South 
Carolina.”

Oath required to be taken by the voting precinct man­
agers (Rule 35):

“ We do solemnly swear that we will conduct this pri­
mary according to the rules of the party; and will allow no 
person to vote whose name is not regularly enrolled in this 
club, or who is not a qualified Negro elector, and we will 
not assist any voter to prepare his ballot and will not ad­
vise any voter as to how he should vote at this primary.”

Oath required to be signed by each voter: (Rule 36)
“ I do solemnly swear that I am a resident of this club 

district, that I am duly qualified to vote in this primary



Baskin et al., Appellants, v. Brown, Appellee 7

under the rules of the Democratic Party of South Caro­
lina, and that I have not voted before in this primary, and 
that I am not disqualified from voting under Section 2267 
of the South Carolina Code of Laws, 1942, relating to dis­
qualifying crimes.

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

“ I further solemnly swear that I believe in the princi­
ples of States’ Rights, and that I am opposed to the pro­
posed Federal so-called F. E. P. C. Law.

“ I further solemnly swear that I will support the elec­
tion of the nominees of this primary in the ensuing general 
election, and that I am not a member of any other political 
party. ’ ’

N ote: The words in parenthesis were eliminated by 
action of the party’s State Executive Committee, were not 
proposed to be enforced or administered by the appellants, 
and were not contained in the Rules as printed by the Party 
officials.

Qualifications for club membership: (Rule 6)
“ The applicant for membership shall be twenty-one 

(21) years of age, or shall become so before the succeeding 
general election, and be a white Democrat, who subscribes 
to the principles of the Democratic Party of South Caro­
lina, as declared by the State Convention. He shall be a 
citizen of the United States and of the State of South Caro­
lina, and shall be able to read and write and interpret the 
Constitution of the State of South Carolina. No person 
shall belong to any club unless he has been a resident of



8 Baskin et al., Appellants, v. Brown, Appellee

the State of South Carolina for two (2) years, of the 
County for six (6) months prior to the succeeding general 
election, and of the club district for sixty (60) days prior 
to the first primary following his offer to enroll. Provided, 
that public school teachers, and ministers of the gospel in 
charge of a regular organized church, shall be exempt from 
the provisions of this rule as to residence, if otherwise 
qualified.”

Qualifications for voting in the party primary: (Eule 7)
“ All duly enrolled club members are entitled to vote 

in the precinct of their residence, if they take the oath re­
quired of voters in the primary; and in conformity with 
the Order of Judge J. Waties Waring, United States Dis­
trict Judge, in the case of Elmore, etc., v. Rice et al., all 
qualified Negro electors of the State of South Carolina are 
entitled to vote in the precinct of their residence, if they 
present their general election certificates and take the oath 
required of voters in the primary.”

Appellee, a Negro qualified elector under the Con­
stitution of the State, enrolled as a member of the local 
club of the party at Beaufort, S. C., and on or about July 
2, 1948, his enrollment was cancelled under Eule 6, because 
he was not eligible to enroll thereunder.

He instituted this action on July 8, 1948, seeking a de­
claratory judgment that the provision in Eule 6 restricting 
party membership to white. Democrats, the provision in 
Eule 7 requiring Negro voters to present their general elec­
tion registration certificates and take the oath required of 
voters, and the voter’s oath prescribed by Eule 36, as ap­
plied to Negro voters, are each violative of his rights under 
the Constitution and laws of the United States.

The District Court made an order dated July 19, 1948, 
enjoining the appellants, their agents, servants, employees



Baskin et al., Appellants, v. Brown, Appellee 9

and attorneys pending the determination of this action 
from refusing to enroll Negroes as members of local clubs 
and the Democratic Party of South Carolina because of 
race and color, and from denying to them full and complete 
participation in the said party without distinction because 
of race, color, creed, or condition, and from enforcing the 
rule requiring Negro electors to present general election 
certificates as a prerequisite to voting in the August 10th 
primary, and from requiring plaintiff and other Negro elec­
tors to take the voter’s oath as a prerequisite to voting in 
primary elections, and from requiring of prospective voters 
in Democratic primaries of South Carolina any oath other 
than that the prospective voter meets the qualifications of 
an elector as set out in the Constitution of South Carolina, 
and is a Democrat and will support the election of the nomi­
nees of the Democratic party at the ensuing general elec­
tion.

The temporary injunction also required the enrollment 
books, which had already been closed under the applicable 
rule provisions, to be reopened for the enrollment of indi­
viduals who meet the qualifications for electors as set out 
in the Constitution of South Carolina without distinction 
as to race, color, creed, or condition.

Three days later, on July 22, 1948, the District Court 
of its own motion made another order modifying the tem­
porary injunction by striking out the portion thereof relat­
ing to the voter’s oath and inserting a new paragraph read­
ing as follows:

“ 5. From requiring voters or prospective voters in 
Democratic Primaries of South Carolina to take any oath 
setting out any beliefs or pledges as a prerequisite to en­
rolling and voting, except that the defendants may (but 
they are not required) require an oath in part or in whole 
containing the following:



10 Baskin et til., Appellants, v. Brown, Appellee

“ ‘1. That the voter has the requisite residence, 
and has lived the legal time within the State, County 
and precinct, or other voting subdivision, and is quali­
fied to vote at the primary election.

“ ‘2. That he has not voted before in that particu­
lar election.

“ ‘3. That he pledge himself to support the nomi­
nees of that primary.’
“ It is reiterated that it is optional with the defendants 

to require an oath containing the whole or any part or parts 
of the foregoing, or to forego requiring any oath at all. ’ ’

It will be observed that the modifying order eliminates 
the portion of the original temporary injunction which per­
mitted the voter’s oath to contain a provision that the pro­
spective voter is a Democrat.

As was the case in Elmore v. Rice, supra, the complaint 
was predicated upon allegations (paragraphs 9 and 10) 
that the only material and realistic elections in South Car­
olina, and the only elections at which plaintiff and others 
on whose behalf he sues can make a meaningful choice and 
exercise their right to vote, are the Democratic primaries; 
that the Democratic primary in South Carolina is an in­
tegral part of the election machinery of the state; that the 
Democratic Party of South Carolina is an organization act­
ing for and on behalf of the people of South Carolina; that 
the primary conducted by said organization for and on be­
half of the people of South Carolina is the only election 
where the appellee and other qualified electors can express 
a meaningful choice in selecting federal and state officers; 
and that the appellants, in performing their duties as offi­
cers of the Democratic Party of South Carolina, including 
the conducting of primary elections, are performing an im­
portant governmental function essential to the exercise of



Baskin et al., Appellants, v. Brown, Appellee 11

sovereignty by the people, and in doing so are subject to 
the provisions of the United States Constitution.

The answer of the appellants, in paragraph Seventh of 
the Fourth defense, denies these allegations, and on the con­
trary alleges and shows that the elections provided by law 
in South Carolina are the general elections established by 
the Constitution and Statutes of the State; that that Con­
stitution and those Statutes make no mention of, and do not 
provide for, and do not regulate the primaries held by the 
Democratic Party of South Carolina under party rules and 
procedure adopted at the party’s state convention; that the 
Democratic Party and the Democratic primary do not be­
come the property of every person in the state simply be­
cause the members of that party have been the only ones 
who have had the character, ability, vigor and community 
of interests to associate themselves together as citizens to 
exercise their constitutional right to work together for 
public and governmental principles and objectives; and that 
any contention or holding to the contrary is believed by the 
appellants to be in derogation of their constitutional rights.

The complaint also alleges (paragraphs 16 and 17) that 
the denial to Negroes of the right to enroll in party clubs 
of the Democratic Party of South Carolina, and requiring 
all Negro electors to present general election certificates as 
a prerequisite to voting, effectually limits their right to 
vote in primary elections to select federal and state officers 
and their participation in other particulars in the election 
machinery of the State of South Carolina; and being based 
solely on race or color is in violation of Article I and 
Amendments Fourteen, Fifteen and Seventeen of the Con­
stitution of the United States and Sections 31 and 43 of 
Title 8 of the United States Code.

The answer (paragraph Tenth) denies these allega­
tions, on information and belief, and alleges that the ap-



12 Baskin et a t,  Appellants, v . Brown, Appellee

pellants did not and do not construe the decisions in the 
case of Elmore v. Bice to hold that the Democratic Party 
of South Carolina was no longer a political party which 
could restrict its membership to those in sympathy with 
its principles and the purpose of fostering and effectuating 
them, but only as holding that Negroes who were qualified 
electors must be given the right to vote in its primaries, 
which are governed by the rules adopted by the state con­
vention of the Democratic Party of South Carolina, and that 
the requirement of producing general election certificates 
was merely a procedural requirement in reference to the 
person seeking to vote evidencing the right to do so.

The complaint (paragraph 18) alleges that the oath re­
quired of voters in primary elections ‘ ‘ that I believe in and 
will support the social and educational separation of races, ’ ’ 
and “ I further solemnly swear that I believe in the prin­
ciples of States’ Eights, and that I am opposed to the pro­
posed Federal so-called F.E.P.C. Law” is aimed directly 
at continuing the disfranchisement of appellee and other 
qualified Negro electors despite prior rulings of this and 
other Federal courts, and is a test not relevant to qualifi­
cations to vote, is an unconstitutional test and condition 
for the exercise of the right to suffrage, is based on race 
and color, and is in violation of Article I and Amendments 
Fourteen, Fifteen and Seventeen of the United States Con­
stitution and Sections 31 and 43 of Title 8 of the United 
States Code.

The answer (paragraph Eleventh) denies these allega­
tions on information and belief, and alleges that the appel­
lants and all other members of the Democratic Party of 
South Carolina have the constitutional right to associate 
themselves together in party membership for the purpose 
of supporting and working for lawful principles and gov­
ernmental objectives in which they may believe, and to



Baskin et a l, Appellants, v. Brown, Appellee 13

foster and effectuate which they may desire to work to­
gether, and that they have the right to make a condition of 
membership in such political party sympathy with its prin­
ciples and the purpose of fostering and effectuating them, 
and that the oath prescribed by the state convention, and 
referred to in the said paragraph of the complaint, was 
a proper and legitimate exercise of that right, at least so 
far as enrolling and becoming members of the said party 
is concerned, and that to deny them this right is to hold 
that they are compelled to admit to membership in their 
party those who are not in sympathy with its principles and 
governmental objectives, but seek only to thwart and de­
stroy them.

This paragraph of the answer also alleges that it is 
well known that the Democratic Party is a party which has 
advocated a strict construction of the Constitution, sharp 
limitation of the powers of the Federal Government, and 
a broad construction of the reserved right of the states; and 
that the membership of the Democratic Party of South Car­
olina, they are informed and believe, had and have the right 
to compel a prospective member of the party to attest his 
adherence to such principles, either stated generally or 
specifically, in an appropriate manner as a condition of 
membership.

The second defense in the answer alleges that the ap­
pellee and many of those for whom he sues are members 
of another political party, namely, the Progressive Dem­
ocratic Party, which party is not in sympathy with the 
fundamental principles and governmental objectives of the 
Democratic Party of South Carolina, such as the opposition 
of the Democratic Party of South Carolina to the proposed 
Federal F.E.P.C. law, and other federal laws usurping or 
encroaching upon the sovereignty of the States of the 
Union and of the rights of the states and of the people pre-



14 Baskin et al., Appellants, v. Brown, Appellee

served in and by the Tenth Amendment to the Constitution 
of the United States, and such as the adherence of the Dem­
ocratic Party of the State of South Carolina to the prin­
ciple of States’ Eights, and such as the adherence of the 
Democratic Party of South Carolina to the principle of so­
cial and educational separation of the races, and opposition 
to federal law interfering with state and local laws in ref­
erence to the separation of the races; that the Democratic 
Party of South Carolina and these appellants and other 
members of it have the right to restrict membership in the 
said party to those who are in sympathy with its principles 
and the purpose of fostering and effectuating them, and 
that these appellants are informed and believe that the ap­
pellee and other members of the Progressive Democratic 
Party, and other persons who do not adhere to and believe 
in the principles of the Democratic Party of South Caro­
lina, have no constitutional or legal right to membership in 
the Democratic Party of South Carolina.

Deference is made in the introductory summary above 
to the affidavit filed by the appellant John E. Stansfield on 
October 20, 1948, seeking the disqualification of District 
Judge Waring to hear and determine the cause. This affi­
davit was based upon a newspaper account of a speech made 
by Judge Waring in October, 1948, at a luncheon in his 
honor given by the New York Chapter of the National Law­
yers Guild, in reference to the racial problem in the South 
and its solution. The newspaper account stated that in the 
course of his address Judge Waring turned to Thurgood 
Marshall, attorney for the National Association for the 
Advancement of Colored people, and one of appellee’s coun­
sel in this cause, and said:

“ The danger of Arnall and others is that they say: ‘Let 
us alone and we will do it ourselves’. Well, no Negro would 
have voted in South Carolina if you hadn’t brought a case.”



Baskin et al., Appellants, v. Brown, Appellee 15

The affidavit also made reference to certain statements 
made by Judge Waring at the hearing on the temporary in­
junction, July 16, 1948, in which he thanked counsel for 
some other defendants on behalf of the government and on 
behalf of America for a return showing that the party rules 
were not being enforced in three counties of the state; ex­
pressed his opinion that the party leaders, the appellants 
here, had made a deliberate attempt to evade the spirit of 
the opinion in Elmore v. Rice; and, in reference to the 
voter’s oath, stated to the appellants that “ I t ’s a disgrace 
and a shame that you have got to come into court and ask 
one judge to tell you to be an American and to obey the 
law. ’ ’

Prior to the hearing on the merits, a stipulation of 
facts was entered into by counsel for the parties, and filed 
November 23,1948, which incorporated the testimony given 
by appellee and by appellant Baskin at the hearing on July 
16, 1948, at which appellee admitted that he was a member 
of the Progressive Democratic Party of South Carolina, 
which had nominated and supported a candidate against the 
candidate of the Democratic Party of South Carolina for 
United States Senator.

The case was heard on its merits by Judge Waring on 
November 23, 1948, and his final order together with the 
findings of fact, conclusions of law and opinion on which it 
was based was filed on November 26th, 1948. Brown v. Bas­
kin, 80 F. Supp. 1917.

The final order permanently restrained and enjoined 
the appellants, together with their agents, servants, em­
ployees and attorneys and all persons in active concert and 
participation with them from:

1. Refusing to enroll Negroes as members of local clubs 
of the Democratic Party of South Carolina, because of race 
and color; and



16 Baskin et al., Appellants, v . Brown, Appellee

2. From denying to the plaintiff and others on whose 
behalf he sues from (sic) full and complete participation in 
the Democratic Party of South Carolina without distinction 
because of race, color, creed, or condition; and

3. From enforcing the rules of the Democratic Party 
of South Carolina requiring Negro electors to present gen­
eral election certificates as a prerequisite to voting in any 
primary election unless the same requirement applies to all 
other persons;

4. From requiring the plaintiff and other Negro elec­
tors to take the voter’s oath prescribed in Rule 36 of the 
party rules as a prerequisite to voting in primary elections; 
and

5. From requiring of members of the Democratic Party 
or of prospective voters in Democratic Primaries in South 
Carolina any form of pledge or oath which attempts to re­
quire them to support racial or religious discrimination in 
violation of the Constitution or laws of the United States.

6. From ordering or maintaining any different require­
ments for exercising the right of suffrage in Democratic 
Primary elections and in party participation because of 
race or religion.

ARGUMENT

I

The Stansfield affidavit was legally sufficient under 
title 28, United States Code, section 144 (and Judicial Code, 
Section 21, 28 U. S. C. A., Section 25); District Judge 
Waring should have proceeded no further in the cause.

Judicial Code, section 21, 28 U. S. C. A., section 25, 
was superseded by section 144 of new title 28, Judiciary 
and Judicial Procedure. Act June 25, 1948, c. 646, section 
39, 62 Stat. 922, effective September 1, 1948.



Baskin et al., Appellants, v. Brown, Appellee 17

It would not seem, however, that the phrase “ timely 
and sufficient affidavit” in section 144 enlarges the function 
of a District Judge in passing on the sufficiency of affidavit 
filed thereunder.

In Berger v. United States, 255 IT. S., 22, 41 S. Ct., 230, 
65 L. Ed., 481, the Court approved the following statement 
as to sufficiency contained in Judge Meek’s opinion for the 
Circuit Court of Appeals for the Fifth Circuit in Henry v. 
Speer, 201 Fed., 869: (p. 32, of 255 U. S.)

“ Upon the making and filing by a party of an af­
fidavit under the provisions of section 21, of necessity 
there is imposed upon the judge the duty of examining 
the affidavit to determine whether or not it is the af­
fidavit specified and required by the statute and to de­
termine its legal sufficiency. If he finds it to be legally 
sufficient then he has no other further duty to perform 
than that prescribed in section 20 of the Judicial Code. 
He is relieved from, the delicate and trying duty of de­
ciding upon the question of his own disqualification.”

The Court held: (p. 35 of 255 U. S.)
“ We are of opinion, therefore, that an affidavit 

upon information and belief satisfies the section and 
that upon its filing, if it show the objectionable incli­
nation or disposition of the judge, which we have said 
is an essential condition, it is his duty to ‘proceed no 
further’ in the case. And in this there is no serious 
detriment to the administration of justice nor incon­
venience worthy of mention, for of what concern is it 
to a judge to preside in a particular case; of what con­
cern to other parties to have him so preside?”
And further: (p. 36 of 255 U. S.)

“ To commit to the judge a decision upon the truth 
of the facts gives chance for the evil against which the 
section is directed. The remedy by appeal is inade­
quate. It comes after the trial and, if prejudice exist, it 
has worked its evil and a judgment of it in a review-



18 Baskin et al., Appellants, v . Bkown, Appellee

ing tribunal is precarious. It goes there fortified by 
presumptions, and nothing can be more elusive of esti­
mate or decision than a disposition of a mind in which 
there is a personal ingredient.”
The court said (p. 35 of 255 U. S.) that the solicitude 

of the statute
“ is that the tribunals of the country shall not only 

be impartial in the controversies submitted to them but 
shall give assurance that they are impartial, free, to 
use the words of the section, from any ‘bias or prej­
udice’ that might disturb the normal course of impar­
tial judgment. ’ ’
The new section changes neither the provision of the 

old section as to the time of filing nor the provision as to 
the contents of the affidavit.

It seems clear, therefore, that the words “ timely” and 
‘ ‘ sufficient ’ ’ are both used in the light of the decisions inter­
preting the meaning of the old section, and were not in­
tended to extend the judge’s authority to consider the af­
fidavits beyond that conferred upon him by section 21 of 
the Judicial Code.

In Whitaker v. McLean, 118 F. (2d), 596, the disquali­
fying affidavit was based upon remarks made by the trial 
judge in the absence of the jury. In reversing the judgment 
of the District Court, the Court of Appeals for the District 
of Columbia said:

“ The judge may, as indeed he insisted, have felt 
no hostility to the plaintiff, and in that view he was, 
subjectively, free from bias. But bias must be con­
sidered objectively. Few, if any, judges would make 
the reported remarks, in the course of a trial, unless 
they had developed definite and positive hostility to 
plaintiff and his case. Hostility is a form, of bias. * # * 
Often some degree of bias develops inevitably during 
a trial. Judges cannot be forbidden to feel sympathy



Baskin et al., Appellants, v. Brown, Appellee 19

or aversion for one party or the other. Mild expres­
sions of feeling are as hard to avoid as the feeling it­
self. But a right to be tried by a judge who is reason­
ably free from bias is a part of the fundamental right 
to a fair trial. If, before a case is over, a judge’s bias 
appears to have become overpowering, we think it dis­
qualifies him. It follows that the judgment must be 
reversed. This is the more regrettable because it is our 
impression, based on an examination of the record, 
that the claim on which the plaintiff sued was probably 
without merit.”
The affidavit of the appellant Stansfield sets forth 

statements made by Judge Waring on July 16, 1948, and 
also an account from the New York Times of a speech made 
by Judge Waring at a luncheon in his honor given by the 
National Lawyers Guild in New York during the month of 
October, 1948.

The affidavit shows that on July 16th, before hearing 
from counsel for the appellants on their return to the rule 
to show cause why an injunction pendente Lite should not 
be granted, Judge Waring expressed himself as gratified 
with the returns made by the party officials of three coun­
ties showing that they were not enforcing the party rules 
in their counties. He said that he was proud that the gov­
erning body of these counties had “ sense enough, nerve 
enough and patriotism enough to make a true, fair and just 
decision” . He thanked their counsel for the return, “ not 
personally, but on behalf of the Government and on behalf 
of America” . He expressed the hope that the press would 
publish the whole or excerpts of the returns made by these 
three counties “ and my brief remarks in regard to them”.

He next stated that the “ leaders of the party”, ob­
viously referring to the appellants, had made “ a deliberate 
attempt to evade the spirit of the opinion” in Elmore v. 
Rice.



20 Baskin et al., Appellants, v. Brown, Appellee

Finally, lie said of appellants
£ 4 I t ’s a disgrace and a shame that you’ve got to 

come into Court and ask one Judge to tell you to be 
an American and to obey the law.”
In the New York speech, Judge Waring discussed his 

views on the racial problem in the South in considerable 
detail. He stated that to him 4 4 the racial atmosphere of 
my part of the South is at present pretty dim” , and that 
he did not believe “ that the windows are going to be opened 
voluntarily” . He said that the most discouraging aspect 
is the attitude of the majority of white Southerners, and 
that 44the problem is to change the feeling, the sentiment, 
the creed, of the great body of white people of the South 
that a Negro is not an American citizen” .

He said:
4 4 My people have one outstanding fault—the ter­

rible fault of prejudice. They have been born and edu­
cated to feel that a Negro is some kind of an animal 
that ought to be well-treated and given kindness, but 
as a matter of favor, not right.”
With reference to the instant cause, he made two state­

ments. “ Referring to his decisions in the United States 
District Court in Charleston which outlawed bans on Negro 
primary voting,” he said:

4 4 Not one man in public life has dared to support 
these decisions based on the fact that a Negro is en­
titled to vote as an American citizen. The few people 
in public life who have communicated with me have 
done so in letters marked ‘strictly confidential’. That’s 
pretty bad. ’ ’
During the speech, turning to Thurgood Marshall, at­

torney for the National Association for the Advancement 
of Colored People, a member of the Lawyers Guild execu­
tive board who was seated near him, the judge said:



Baskin et til., Appellants, v. Brown, Appellee 21

“ ‘The danger of Arnall and others is that they 
say: “ Let us alone and we’ll do it ourselves.” Well, 
no Negro would have voted in South Carolina if you 
hadn’t brought a case’.”
The affidavit states that, upon considering the account 

of Judge Waring’s speech in the light of the statements 
made at the July 16 hearing, the deponent came to the def­
inite and positive conclusion that Judge Waring had a 
personal bias in favor of the appellee and his success in 
the cause, and a personal bias and prejudice against de­
ponent and the other appellants regarding the justiciable 
matter pending, as a result of which they cannot expect an 
impartial judgment of the issues.

The remarks made on July 16 evidenced positive hos­
tility to the appellants or their cause of the same quality as 
that which the Supreme Court of the United States found 
legally sufficient in Berger v. United States, supra. It is 
inconceivable that such hostility would not prevent a judge 
from or impede him in rendering judgment impartially 
between the parties to the cause. His remarks in the New 
York speech certainly did nothing to militate against such 
a conclusion.

In the New York speech, he placed himself in a posi­
tion where he would later make himself look ridiculous, to 
say the least, if he decided the cause against the appellee. 
He publicly referred to this very cause, and by the clearest 
kind of implication commanded both the bringing of it and 
the decision. From that moment on, human nature being as 
it is, he was under a distinct kind of duress against deciding 
it differently on the merits. From then on it could not be 
said that his mind was devoid of “ a personal ingredient ’ ’, 
and the appellants were entitled to a trial before another 
judge. They should not have labored under the burden of



22 Baskin et al., Appellants, v . Brown, Appellee

convincing the judge against a stand in this very cause 
which he had publicly taken.

It is respectfully submitted that Judge Waring’s duty, 
on the filing of the affidavit in the cause, was to “ proceed 
no further therein” .

Berger v. United States, supra.
Whitaker v. McLean, supra.

II

The Democratic Party of South Carolina is a political 
party, having the right as such to limit membership in it, 
and participation in its party actions by voting in its pri­
maries, to those who are in sympathy with its principles 
and the purpose of fostering and effectuating them; and the 
District Judge erred in enjoining the enforcement of the 
portion of Rule 6 of the party rules which limits member­
ship to those who subscribe to the principles of the party 
as declared by its State Convention and Rule 38 of the Party 
rules which prescribes the voter’s oath.

This question deals with the validity of that portion of 
Rule 6 of the party rules restricting membership in the 
party to those who subscribe to “ the principles of the 
Democratic Party of South Carolina, as declared by the 
State Convention.”

It also deals with the validity of Rule 36, which, to­
gether with Rule 7, restricts voting in the primaries of the 
party to those who take the voter’s oath therein prescribed, 
as follows:.

“ I do solemnly swear that I am a resident of this 
club district, that I am duly qualified to vote in this 
primary under the rules of the Democratic Party of 
South Carolina, and that I have not voted before in 
this primary, and that I am not disqualified from vot-



Baskin et al., Appellants, v , Brown, Appellee 23

ing under Section 2267 of the South Carolina Code of 
Laws, 1942, relating to disqualifying crimes.

“ I further solemnly swear that I believe in and 
will support the principles of the Democratic Party 
of South Carolina, and that I believe in and will sup­
port the social and educational separation of races.

“ I further solemnly swear that I believe in the 
principles of States’ Rights, and that I am opposed 
to the proposed Federal so-called F. E. P. C. law.

“ I further solemnly swear that I will support the 
election of the nominees of this primary in the ensuing 
general election, and that I am not a member of any 
other political party.”
The District Judge, both in his order and opinion filed 

July 19, 1948, and in his order and opinion filed November 
26, 1948, held that membership and the privilege of voting 
in the party’s primaries could not validly be conditioned 
on belief in the party’s principles in relation to the separa­
tion of the races, States’ Rights, and opposition to Federal 
F. E. P. C. legislation.

He said: (p. 1019 of 80 F. Supp.)
“ The proposed oath cannot be said to have any 

purpose other than the exclusion of Negro voters. * * * 
It is common knowledge of which this Court may take 
judicial cognizance that the proposed Federal FEPC 
is legislation proposed to prevent discrimination of 
employment according to race. Of course, every one 
knows that a Negro would not take a solemn oath that 
he is opposed to legislation that would remove dis­
crimination against him. And there are even stronger 
reasons why he would not take an oath that he believes 
in and will support ‘the social, religious and educa­
tional separation of races’.”
(The word “ religious” appears in the District Court’s 

opinion because it originally appeared in the rules as they 
were adopted at the State Convention but was afterwards



24 Baskin et al., Appellants, v. Brown, Appellee

deleted by action of the State Executive Committee and 
was not printed in the final version of the Rules. The Dis­
trict Judge held that they did not have power to eliminate 
this word, and reinstated it and then enjoined its enforce­
ment by the appellants. Since they had already taken ac­
tion not to administer this portion of the oath, there was 
certainly no necessity for bringing it back into the oath for 
the purpose of enjoining it. Hicklin v. Coney, 290 U. S. 
169, 172, 54 S. Ct. 142, 144, 78 L. Ed. 247.)

The appellants contend that the right to organize a 
political party, to associate in party membership for the 
purpose of supporting and working for lawful political 
principles and governmental objectives, is a constitutional 
right.

Herndon v. Lowry, 301 U. S. 242, 259, 57 S. Ct. 732, 
740, 81 L. Ed. 1066.

In De Jonge v. State of Oregon, 299 IT. S. 353, 57 S. 
Ct. 255, 81 L. Ed. 278, the Court said:

“ The right of peaceable assembly is a right cog­
nate to those of free speech and free press and is 
equally fundamental. As this Court said in United 
States v. Cruikshank, 92 U. S. 542, 552, 23 L. Ed. 588: 

“ ‘The very idea of a government, republican in 
form, implies a right on the part of its citizens to meet 
peaceably for consultation in respect to public affairs 
and to petition for a redress of grievances.’

“ The First Amendment of the Federal Constitu­
tion expressly guarantees that right against abridge­
ment by Congress. But explicit mention there does not 
argue exclusion elsewhere. For the right is one that 
cannot be denied without violating those fundamental 
principles of liberty and justice which lie at the base 
of all civil and political institutions—principles which 
the Fourteenth Amendment embodies in the general 
terms of its due process clause. # #



Baskin et ah, Appellants, v. Bkown, Appellee 25

“ The greater the importance of safeguarding the 
community from incitements to the overthrow of our 
institutions by force and violence, the more imperative 
is the need to preserve inviolate the constitutional 
rights of free speech, free press and free assembly in 
order to maintain the opportunity for free political 
discussion, to the end that government may be respon­
sive to the will of the people and that changes, if de­
sired, may be obtained by peaceful means. Therein lies 
the security of the Republic, the very foundation of 
constitutional government. ’ ’
In People ex rel Lindstrand v. Emmerson, 333 111. 606, 

165 N. E. 217, 62 A. L. R. 912, the Court said:
“ Political parties had birth in this country as a 

result of differences of opinion arising in the second 
session of the first Congress of the United States, in 
1790, over Alexander Hamilton’s plan to fund the in­
debtedness of the various states incurred before and 
during the Revolution. They have always represented 
a divergence in thought in governmental policy. Their 
influence and importance have grown, until they are 
today a necessary adjunct to representative govern­
ment, yet there is no constitutional or statutory re­
quirement that there be political parties, but it has 
always been recognized that they are voluntary or­
ganizations, possessing inherent powers of self-govern­
ment. ’ ’
It has been said that

“ A political party is an association of voters be­
lieving in certain principles of government, formed to 
urge the adoption and execution of such principles in 
governmental affairs through officers of like beliefs.”

Kelso v. Cook, 184 Ind. 173, 110 N. E. 987, 994, 
Ann. Cas. 1918 E. 68.

In Ingersoll v. Heffernan, (1947) 71 N. Y. S. 2d 687, 
188 Misc. 1047, affirmed 297 N. Y. 524, 74 N. E. 2d 466, the 
Court said:



26 Baskin et al., Appellants, v. Brown, Appellee

“ A political party is something more than a me­
dium for nomination or election to public office. The 
formulation of party principles and policies is a duty 
which, if political parties are to continue to serve their 
historical functions in the scheme of the democratic 
process, transcends the mere purpose to elect particu­
lar candidates to public office.”
In Ingersoll v. Curran (1947), 70 N. Y. S. 2d 435, 188 

Misc. 1003, affirmed 297 N. Y. 522, 74 N. E. 2d 465, the 
court said:

“ Political parties are voluntary organizations of 
people who believe generally in the principles enunci­
ated and the candidates offered to the people by the 
particular party of their choice. It is true that over 
the years the Legislature has enacted many laws regu­
lating the conduct of political parties in order to cor­
rect abuses which had arisen. The voluntary nature of 
political parties nevertheless continues to be recog­
nized.”
In Socialist Party v. Uhl, 155 Cal. 776, 103 Pac. 181, 

the Court said:
“ A political party is an organization of electors 

believing in certain principles concerning govern­
mental affairs, and urging the adoption and execution 
of those principles through the election of their re­
spective candidates at the polls. The existence of such 
parties, the dominant party and the parties in opposi­
tion to it, lies at the foundation of our government, 
and it is not expressing it too strongly to say that 
such parties are essential to its very existence. The 
design of the primary law is not to destroy political 
parties, but, while carefully preserving their integrity, 
to work out reforms in their methods of administration. 
Such being the purpose of the law, it is not only proper 
to prescribe such a test, but the absence of such a test 
would tend to work the absolute disintegration and 
destruction of all parties, except for the saving power



Baskin et al., Appellants, v . Brown, Appellee 27

within the party itself of prescribing its own tests and 
regulations.”
(The test referred to was the requirement of Statute 

that an elector is not entitled to vote in a primary unless 
he states, at the time of registration the name of the poli­
tical party with which he intends to affiliate, and that he is 
not permitted to vote on behalf of any party other than the 
party designated in his registration.)

In Smith v. Howard, 275 Ky. 165, 120 S. W. 2d 1040, 
the Court quoted with approval the following from Davis 
v. Hambrick, 109 Ivy. 276, 58 S. W. 779, 22 Ky. Law Kep. 
815, 51 L. B„ A. 671:

“ Political parties are voluntary associations for 
political purposes. They are governed by their own 
usages, and establish their own rules. Members of such 
parties may form them, reorganize them, and dissolve 
them at their will. The voters constituting such party 
are, indeed, the only body who can finally determine be­
tween contending factions or contending organizations. 
The question is one essentially political, and not ju­
dicial, in its character. It would be alike dangerous to 
the freedom and liberty of the voters, and to the dig­
nity and respect which should be entertained for ju­
dicial tribunals, for the courts to undertake in any case 
to investigate either the government, usages, rules, or 
doctrines of a political party, or to determine between 
conflicting claimants’ rights growing out of its gov­
ernment. ’ ’
The right of the membership of a political party to 

protect its party integrity against intrusion of those who 
are not in sympathy with its principles and the purpose of 
fostering and effectuating them is not affected by the fact 
that political parties and their party activities, including 
party primaries, are regulated by state statutes; indeed, 
the right is safeguarded in many such statutes.



28 Baskin et ah, Appellants, v. Brown, Appellee

Ingersoll v. Heffernan, (1947) 71 N.Y.S. 2d 687, 
188 Misc. 1047, affirmed 297 N.Y. 524, 74 N.E. 
2d 466.

Ingersoll v. Curran, (1947) 70 N.Y.S. 2d 435, 188 
Misc. 1003, affirmed 297 N.Y. 522, 74 N. E. 2d 
465.

Zuckman v. Donahue, (1948) 79 N.Y.S. 2d 169, 191 
Misc. 399, order modified 274 App. Div. 216, 80 
N.Y.S. 2d 698.

Werbel v. Gernstem, (1948) 78 N.Y.S. 2d 440, 191 
Misc. 275, affirmed 273 App. Div. 917, 78 N.Y.S. 
2d 926.

In Be: Newkirk (1931), 259 N. Y. S. 434, 144 Misc. 
765;

Socialist Parly v. Uhl, 155 Cal. 776, 103 Pac. 181;
People ex rel Lindstrand v. Emmerson, 333 111, 606, 

165 N. E. 217, 62 A. L. E. 912.
It was held that the enrollment in the Democratic Party 

of persons adhering to the principles of the American Labor 
Party was validly cancelled by the party’s county chairman 
under the provisions of the New York Election Law 
(Werbel v. Gernstem, supra)] that the enrollment in the 
American Labor Party of persons adhering to the prin­
ciples of the Democratic Party was validly cancelled in a 
similar proceeding (Zuckman v. Donahue, Supra); and that 
the enrollment of persons not in sympathy with the princi­
ples of the Socialist Party was likewise validly cancelled, 
despite their declaration that they were in sympathy there­
with (In Re: Newkirk, Supra).

In the instant case, the State Convention of the Demo­
cratic Party of South Carolina adopted a platform and de­
clared the principles of the party. They limited member­
ship and enrollment to those who subscribe to the principles 
of the party, as declared by the state convention, and vot-



Baskin et al., Appellants, v. Brown, Appellee 29

ing to those who subscribe to the voter’s oath. These re­
quirements were applicable without

Respect to race or color, upon the elimination of the 
provision as to White Democrats.

The District Judge, however, in the order of July 19, 
1948, enjoined the administration of the oath to any voters, 
whether white or Negro, and the only concession to the 
principle of party intergrity was the provision in his order 
that an oath containing a provision that he or she is a 
Democrat and will support the election of the nominees of 
the Democratic Party (sic) at the ensuing general election 
might be administered to prospective voters.

On July 22, 1948, however, the District Judge, of his 
own motion, modified the order of July 19, 1948, by elimi­
nating the provision that the voters oath might contain a 
statement that the prospective voter is a Democrat, and 
permitted only a statement that “ he pledge himself to sup­
port the nominees of that primary.”

The provisions of the oath, proposed to be adminis­
tered by the appellants, which were held invalid were:

‘ ‘ I further swear that I believe in and will support 
the principles of the Democratic Party of South Caro­
lina, and that I believe in and will support the social 
and educational separation of races.

“ I further solemnly swear that I believe in the 
principles of States’ Rights, and that I am opposed to 
the proposed Federal so-called F. E. P. C. Law.”
The provision in the oath “ that I am not a member of 

any other political party” was also embraced within the 
interdiction of his orders.

The first provision which the District Judge regarded 
as violating the sections of the Constitution and statutes of



30 Baskin et al., Appellants, v. Brown, Appellee

the United States relied on by the appellee was the pro­
vision relating to the separation of races.

The Constitution of South Carolina, 1895, Article XI, 
section 7, reads:

“ Separate schools shall be provided for children 
of the white and colored races, and no child of either 
race shall ever be permitted to attend a school provided 
for children of the other race.”
This section is constitutional under the decisions of 

the Supreme Court of the United States.
State of Missouri ex rel Gaines v. Canada, 305 U. S. 

337, 59 S. Ct. 232, 83 L. Ed. 208, and cases cited therein.
Social separation is also provided for by constitutional 

and statutory provisions.
Article III, Section 33, of the Constitution reads in 

p a rt:
“ The marriage of a white person with a negro or 

mulatto, or person who shall have one-eighth or more 
of negro blood, shall be unlawful. * # * ”
Section 1272 of the Code of Laws of South Carolina, 

1942, provides in part:
“ It shall be unlawful for any person, firm or cor­

poration engaged in the business of cotton textiles 
manufacturing in this State to allow or permit opera­
tives, help and labor of different races to labor and 
work together within the same room, or to use the same 
doors of entrance and exit at the same time, or to use 
and occupy the same pay ticket window’s or doors for 
paying off its operatives at the same time, or to use 
the same stairway and windows at the same time, or 
to use at any time the same lavatories, toilets, drink­
ing water buckets, pails, cups, dippers or glasses: pro­
vided, equal facilities shall be supplied and furnished 
to all persons employed by said persons, firms or cor­
porations engaged in the business of cotton textile



Baskin et al., Appellants, v. Brown, Appellee 31

manufacturing as aforesaid, without distinction as to 
race, color or previous conditions. # * * ”
Section 1269 of the Code provides in part:

“ Electric railways outside of the corporate limits 
of cities and towns shall have authority to separate the 
races in their cars, and the conductors in charge of 
said cars are hereby authorized and directed to sep­
arate the races in said cars under their charge and 
control. * * # ”
Section 8530-1 of the Code provides in part:

“ All passenger motor vehicle carriers, operating 
in the State of South Carolina shall separate the white 
and colored passengers in their motor buses. # * * ”
Section 8396 of the Code provides in part:

“ All railroad and steam ferries and railroad com­
panies engaged as common carriers of passengers for 
hire, shall furnish separate coaches or cabins for the 
accommodation of white and colored passengers: pro­
vided, equal accommodations shall be supplied to all 
persons without distinction of race, color or previous 
condition, in such coaches or cabins. * * * ”
Section 8490 of the Code provides in part:

“ All street railway companies now operating or 
hereafter to operate lines of street railways in the 
State of South Carolina are hereby required to provide 
separate accommodations for the white and colored 
passengers on their cars. * * # ”
Section 8403 of the Code provides in part:

“ No persons, firms or corporations, who or which 
furnish meals to passengers at station restaurants or 
station eating houses, in times limited by common 
carriers of said passengers, shall furnish said meals 
to white and colored passengers in the same room, or 
at the same table, or at the same counter. * * * ”



32 Baskin et al., Appellants, v . Brown, Appellee

Section 1271 of the Code provides in part:
“ Any circus or other such traveling show exhibit­

ing under canvas or out of doors for gain shall main­
tain two main entrances to such exhibition, and one 
shall be for white people and the other entrance shall 
be for colored people. * * * ”
These provisions are also constitutional.
State of Missouri ex rel Gaines v. Canada, supra, and 

cases cited therein.
Social and educational separation of the races is dealt 

with and commanded by the Constitution and laws of the 
State, and the membership of a political party has the right 
to associate themselves together to support such provisions, 
to adopt their support as a political objective of their party, 
and to condition enrollment in their party and voting in 
their party’s primaries upon belief in and support of the 
same.

The next provision of the oath which the District Judge 
regarded as violating the sections of the Constitution and 
statutes of the United States relied on by the appellee was 
the provision relating to belief in the principles of States ’ 
Rights and opposition to the proposed Federal so-called 
F. E. P. C. law.

There is nothing unlawful in the membership of a polit­
ical party associating themselves together as a political 
party to advocate and support the principles of States’ 
Rights as a political objective of their party, and to oppose 
the enactment of Federal so-called F. E. P. C. legislation 
(such as S. 984, 80th Congress, 1st Session, introduced by 
Senator Ives under the title “ A Bill to Prohibit Discrimi­
nation in Employment Because of Race, Religion, Color, 
National Origin, or Ancestry” ) which they believe to be 
an encroachment upon the reserved powers of the States



Baskin et al., Appellants, v. Brown, Appellee 33

under the Tenth Amendment of the Constitution of the 
United States.

The principle of States’ Rights was a firm belief of 
Thomas Jefferson, who, in his first Inaugural Address, gave 
the Democratic Party its traditional creed :

“ * * * the support of the State governments in all 
their rights, as the most competent administrations 
for our domestic concerns and the surest bulwarks 
against anti-republican tendencies. * * * ”
Jefferson warned that
“ * * * the States should be watchful to note every 
material usurpation on their rights; to denounce them 
as they occur in the most peremptory terms; to protest 
against them as wrongs. # * * ”
Letter to W. B. Giles, 1825, The Wisdom of Thomas 

Jefferson, Doubleday, Doran & Company, Inc., N. Y., 1941.
Alexander Hamilton, in a speech urging the adoption 

of the Constitution before the Constitutional Convention at 
Hew York, June 24, 1788, said:

“ The state governments are essentially necessary 
to the form and spirit of the general system. As long, 
therefore, as Congress has a full conviction of this 
necessity, they must, even upon principles purely na­
tional, have as firm an attachment to the one as to the 
other. This conviction can never leave them, unless 
they become madmen. ’ ’
And further:

“ The states can never lose their powers till the 
whole people of America are robbed of their liberties. 
These must go together; they must support each other, 
or meet one common fate.”
The address of Retired Associate Justice Owen J. 

Roberts as President of the Pennsylvania Bar Association, 
June 26,1948, quoted in the August 1948 issue of the Ameri­
can Bar Association Journal, contained these statements:



34 Baskin et a l, Appellants, v . Brown, Appellee

“ Does not centralization portend a revolution in 
the form and function of the national government? 
* * * A failure on the part of either the legislative or 
the judicial branch of government to observe the spirit 
of the compact may well spell the end of our form of 
government. * * # We should at least discover whether 
our people prefer something more nearly approaching 
alien systems, wherein the States are mere administra­
tive districts of a central government.”
Can it be said that the membership of a political party 

may not adopt, as a party principle, belief in States ’ Rights 
and opposition to Federal so-called F. E. P. C. legislation 
which many people in every part of the country believe to 
be a violation of States’ Rights? Having adopted it, may 
they not work for it as a political objective, and condition 
enrollment in their party and voting in their party’s pri­
maries upon sympathy with such party principle and the 
purpose of fostering and effectuating it?

Neither of the political objectives ruled invalid by the 
District Judge are unlawful. Both are legitimate political 
aims, under both the Federal and State Constitutions.

The District Judge took “ judicial cognizance” of the 
fact that Negroes generally do not believe in such political 
objectives, and that they would not take a voter’s oath at­
testing adherence to them, and of course would not sub­
scribe to them as party principles. Lawful political objec­
tives are thus held to become invalid because they are not 
believed in by a class of prospective members and voters.

If the District Judge can take judicial cognizance of 
the fact that Negroes do not believe in the lawful political 
principles and objectives of the Democratic Party of South 
Carolina, may not the party itself take such notice of that 
as a fact, in adopting the limitation of membership in Rule 
6 to white Democrats ? It would seem that the judicial cog-

)



Baskin et al., Appellants, v. Brown, Appellee 35

nizance so taken by the District Judge should compel him 
to the conclusion that it was not invalid for the party con­
vention to exclude Negroes from membership and voting 
on the ground that they are not in sympathy with, but are 
opposed to, the political principles and objectives of the 
party, and are not entitled to invade it for the purpose of 
thwarting and destroying its principles and objectives.

If the District Judge is correct in finding that Negroes 
generally do not subscribe to the party’s lawful principles 
and political aims, it is their political or personal beliefs 
which exclude them from membership and participation in 
the activities and primaries of the party. This does not call 
the Fourteenth and Fifteenth Amendments into operation, 
for the party requirement is applicable without discrimina­
tion, and the only part which race or color plays is in caus­
ing the political beliefs of the appellee and the others for 
whom he sues, which beliefs are different from those of the 
party he seeks to join.

The Nineteenth Amendment to the Constitution of the 
United States provides:

“ The right of citizens of the United States to vote 
shall not be denied or abridged by the United States 
or by any State on account of sex. * * #
Would this amendment deny the right of women to 

form a party having as its political objective the enactment 
of constitutional and statutory provisions guaranteeing 
equal rights for women, to prescribe belief in that objec­
tive as a condition of membership and participation in their 
party’s activities and primaries, and to exclude therefrom 
any men (as well as any women) who do not believe in their 
party’s political objective! We respectfully submit that it 
would not, for if sex in such a case denies or abridges the 
right of the men to vote, it is only because of its effect upon



36 Baskin et al., Appellants, v. Bkown, Appellee

their political belief and not because sex is made a test of 
membership and voting.

If the District Judge is right in the instant case, that 
Negroes generally do not subscribe to the party’s lawful 
principles and political aims and objectives, it is their polit­
ical or personal belief which brings about abridgement of 
their right to membership and to vote, for the test is not 
race or color, and it is applied to all alike.

It is respectfully submitted that the portion of Rule 6 
under consideration, and the voter’s oath, were not ren­
dered invalid under the sections of the Constitution and 
statutes of the United States on which the appellee relies, 
and that the District Judge erred in his holding to the 
contrary.

Ill

The Democratic Party of South Carolina, as a political 
party, had the right to adopt in its State Convention po­
litical governmental principles and objectives of the party 
relating to the separation of the races, States’ Rights and 
the Federal so-called F. E. P. C. law, and to exclude from 
membership and from voting in its primaries appellee and 
others similarly situated who did not believe in and were 
not in sympathy with such lawful political and govern­
mental objectives; and the District Judge erred in holding to 
the contrary and rendering judgment in favor of appellee.

In our discussion of Question II, supra, we have en­
deavored to show that the provisions of the party rules 
limiting enrollment to those who subscribe to the party’s 
principles, as declared by the State Convention, and limit­
ing voting in its primaries to those who take the voter’s 
oath are not invalid, and should have been left of force in 
the August 10th primary and in the enrollment period 
which preceded it.



Baskin ei al., Appellants, v . Brown, Appellee 37

Under those provisions the appellee and those for 
whom he sires were not eligible to enroll as members of 
the party or to vote in its primary, even after the elimina­
tion of that portion of Rule 6 which limits membership to 
white Democrats.

The stipulation of facts filed November 23,1948, shows 
that the appellee does not believe in the principles of the 
Democratic Party of South Carolina relating to the separa­
tion of the races and the so-called federal F. E. P. C. law, 
and that he believes that all States’ Rights are subject to 
the paramount authority of the Constitution of the United 
States.

He does not subscribe to the principles of the party, 
as declared in the State Convention, and he could not truth­
fully take the voter’s oath.

As we have shown, it was his belief on the party’s 
political principles and objectives which made him in­
eligible to enroll and vote and not any limitation based 
upon race or color. It was his privilege to hold beliefs con­
trary to those of the party; it was his privilege to join or 
organize a political party to foster and effectuate his be­
liefs; it was his privilege not to join a party with whose 
principles he disagreed; but it was not his privilege to in­
vade that party for the purpose, not of assisting in the at­
tainment of its lawful political objectives, but to seek to 
thwart and destroy them.

It is respectfully submitted that, entirely apart from 
the limitation of enrollment to white Democrats, the ap­
pellee was not entitled to enroll in the Democratic Party 
of South Carolina and to vote in its primary, and that the 
District Judge erred in holding to the contrary, both in 
his order dated July 19, 1948, and his order dated Novem­
ber 26, 1948.



38 Baskin et al., Appellants, v. Brown, Appellee

Zucknum v. Donahue, (1948) 79 N. Y. S. (2d), 169, 
191 Misc., 399, order modified 274 App. Div., 
216, 80 N. Y. S. (2d), 698;

Werhel v. Gernstein, (1948) 78 N. Y. S. (2d), 440, 
191 Misc., 275, affirmed 273 App. Div., 917, 78 
N. Y. S. (2d), 926;

In Be: Newkirk, (1931) 259 N. Y. S., 434,144 Misc., 
765.

IV
The general election is the only election machinery 

provided by the Constitution and laws of the State of South 
Carolina; and the District Judge erred in holding that the 
primaries of the Democratic Party of South Carolina, con­
ducted and held under party rules alone, are an integral 
part of the election machinery of the State, to which Article 
I and Amendments Fourteen, Fifteen and Seventeen of 
the Constitution of the United States and Sections 31 and 
43 of Title 8 of the United States Code are applicable.

This question challenges the correctness of the District 
Judge’s conclusions of law, both in his order dated July 
19, 1948, and in his final order dated November 26th, 1948, 
that the primaries of the Democratic Party of South Caro­
lina are an integral part of the election machinery of the 
state, and are the only realistic and meaningful elections, 
at which the appellee can express a choice in selecting fed­
eral and other officials.

His holding to this effect in the instant case is virtual­
ly identical with a like holding in Elmore v. Rice, 72 P. 
Supp., 516, which was affirmed by this Court in Rice v. 
Elmore, 165 F. (2d), 387.

It is the hope and respectful request of the appellants 
that the Court will reconsider its holding in Rice v. Elmore, 
supra, and reach a contrary conclusion in the instant case.



Baskin et al., Appellants, v. Brown, Appellee 39

It cannot be controverted that the only elections pro­
vided for by the Constitution and laws of the State of South 
Carolina are the general elections held every two years for 
the election of members of the state House of Representa­
tives and other public officials, including United States Sen­
ators and Congressmen.

All Constitutional and statutory provisions regulating 
party primaries, or providing for their regulation, were 
repealed in 1944, and since then party primaries have been 
held by the Democratic Party of South Carolina under 
rules adopted by the State Convention.

In Rice v. Elmore, supra, the Court stated the question 
for decision as follows:

“ * # * whether, by permitting a party to take 
over a part of its election machinery, a state can avoid 
the provisions of the Constitution forbidding racial 
discrimination in elections and can deny to a part of 
the electorate, because of race or color, any effective 
voice in the government of the state.”
It is respectfully submitted that the Court erred when 

it assumed as a part of the question that the State permitted 
a party to take a part of its election machinery.

It is true that a primary regulated by State law is held 
to become an integral part of the State’s election machinery, 
in so far as he applicability of the Fourteenth and Fifteenth 
Amendments are concerned, Smith v. Allwright, 321 IT. S., 
649, 64 S. Ct., 757, 88 L. Ed., 987, 151 A. L. R., 110; United 
States v. Classic, 313 U. S., 299, 61 S. Ct., 1031, 85 L. Ed., 
1368, because, as the Court held in Smith v. Allwright, 
supra, when, as there, the privilege of membership in a 
party “ 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.” In 
that case, there was a grant of authority to the party by



40 Baskin et a l, Appellants, v. Brown, Appellee

state statute to determine the qualifications for member­
ship.

But party primaries did not come into being originally 
as election machinery of the State. They were a substitute 
for the caucus and the convention, and came under State 
regulation in the exercise of its police power.

Until 1944, South Carolina, pursuant to a Constitution­
al mandate, had of force laws regulating the holding of 
party primaries. Nominations were not required to be made 
by primary, and the primary laws were applicable to any 
party which wished to conduct a primary.

It is well settled that primary laws are enacted under 
the police power of the State. Harrell v. Sullivan, 220 Ind., 
108, 40 N. E. (2d) 115, 41 N. E. (2d), 354,140 A. L. R., 455.

In 1944, the Constitutional mandate was removed from 
the Constitution by amendment, and the primary law’s were 
repealed. The State thus withdrew its previous exercise of 
the police power over the subject of primaries, leaving 
them unregulated.

As was said in People ex rel Lindstrand v. Emmerson, 
333 111., 606, 165 N. E., 217, 62 A. L. R., 912;

“ Political parties are voluntary organizations, 
with inherent powers of self-government. Primary 
laws do not confer powers on political parties to make 
nominations, but are a regulation of the exercise of the 
power to nominate. ’ ’
The Court said further:

“ A general election is in obedience to the mandate 
of the Constitution, or of a statute authorized by it, 
that certain officers be elected at certain times, and that 
all qualified voters of the district or county or of the 
state shall be permitted to participate in such election, 
while a primary law casts no obligations on parties to 
nominate, though if they do nominate they are required



Baskin e t al., Appellants, v . Brown, Appellee 41

to do so according to the regulations of the Primary 
Act. It must he said, therefore, that a primary is an 
election only in the qualified sense that it is moulded, 
in general, on the plan of an election and is conducted 
as an election is conducted, but for the purpose, only, 
of selecting candidates of a political party, with the 
right in no one else to participate therein.”
It was within the power of the State to discontinue 

the exercise of the police power, as its use was originally 
the State’s prerogative, which it could not be compelled to 
exercise. If by its use “ the state makes the action of the 
party the action of the state”, certainly the State’s with­
drawal from the field and nonuse of the police power could 
have no other legal effect than to make the party’s action 
not the action of the state.

In so far as primary elections constituted a part of the 
state’s “ election machinery” by reason of the regulatory 
statute, the repeal of the statute destroyed this part of such 
“ election machinery” , and it existed no longer.

In Rice v. Elmore, supra, the Court held that when 
party officials participate in “ what is a part of the state’s 
election machinery, they are election officers of the state 
de facto if not de jure, and as such must observe the lim­
itations of the Constitution.

The law in South Carolina is that there can be no 
de facto officer unless there is a de jure office. In Tinsley v. 
Kirby, 17 S. C., 1, the Court said :

“ A party who volunteers to perform the duties of 
an office which does not exist, and which, in the manner 
assumed, is prohibited by law, can not, in any just 
sense of the term, be called an officer de facto, but a 
mere usurper.”

State v. Messervy, 86 S. C., 503, 68 S. E., 766.



42 Baskin et a l ,  Appellants, v . Brown, Appellee

In United States v. Boyer, 268 U. S., 394, 45 S. Ct., 
519, 69 L. Ed., 1011, the Court said:

“ Of course, there can be no incumbent de facto of 
an office if there be no office to fill. ’ ’
In State ex rel Tammmen v. Eveleth, 189 Minn., 229, 

249 N. W., 184, 99 A. L. R., 289, it was held:
“ Where, however, there is no law or ordinance 

even attempting to create an office, or where the law 
or ordinance creating such office has been held uncon­
stitutional or has been repealed, no one can become an 
officer de facto by assuming to act in a wholly non-ex­
isting office.”
In Bice v. Elmore, supra, the Court relies upon the 

italicized quotation from United States v. Classic, supra, as 
follows:

“ Where the state law has made the primary an 
integral part of the procedure of choice, or where in 
fact the primary effectively controls the choice * * *” 
And further:

“ 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 represen­
tative is in fact controlled by the primary because, as 
is alleged in the indictment, the choice of candidates at 
the Democratic primary determines the choice of 
elected representative.”
It is respectfully submitted that, although these state­

ments would be dicta, if intended to go beyond the facts 
of the Classic case and cover a case like the instant one 
where there is no state primary law at all, they were not 
dicta because they were employed to answer the argument 
that the Louisiana primary, although completely regulated 
by the state and held at public expenses, was not a step in 
the election machinery because the law provided that can­
didates’ name might appear on the general election ballot



Baskin et al., Appellants, v . Brown, Appellee 43

not only as a result of nomination in primaries but also 
by the filing of a nominating petition or by being “ written 
in” . It was with reference to these ineffectual methods of 
opposing primary-nominated candidates, whose names ap­
peared on the ballot in the general election by reason of 
such nomination under the law of the State, that the itali­
cized quoted statements were made by the Supreme Court, 
and there is no basic for their application as authority or 
reasoning to a case where there is no primary law by which 
“ the state makes the party action the action of the state”.

In Rice v. Elmore, supra, it is said:
“ Even though the election laws of South Caro­

lina be fair upon their face, yet if they be administered 
in such way as to result in persons being denied any 
real voice in government because of race and color, 
it is idle to say that the power of the state is not be­
ing used in violation of the Constitution.”
This statement would appear to have reference to the 

general election laws, and the support therein by the mem­
bership of the Democratic Party of their primary-nomi­
nated candidates. They participate in the general election 
laws, however, as citizens, in the exercise of their constitu­
tional right to vote and to engage in political activity, and 
such participation by them as voters is certainly not ad­
ministration of the election laws. To avoid such a result, 
the State would have to prohibit primaries entirely, and it 
is not believed that the Federal courts would fail to hold 
such legislation an unconstitutional invasion of their right 
to engage in lawful political activity.

In Rice v. Elmore, supra, the Court said:
“ Having undertaken to perform an important 

function relating to the exercise of sovereignty by the 
people, they may not violate the fundamental princi­
ples laid down by the Constitution for its exercise. ’ ’



44 Baskin et al., Appellants, v. Brown, Appellee

It is respectfully submitted that what the Constitution 
applies to is state action, and not action by the people. The 
Tenth Amendment recognizes the difference, and we believe 
that the difference is material here.

Both Smith v. Allwright, supra, and United States v. 
Classic, supra, dealt with state-regulated primaries, and 
the former plainly stressed the fact that the provisions of 
the Constitution relied on here were applicable because the 
state by law had made party action state action, where the 
part, exercised the right conferred by statute of the state 
to prescribe membership conditions.

In South Carolina, primaries are conducted by the 
party membership just as they were conducted before the 
State applied its police power to their conduct, if and when 
held. Yet they have now been held when conducted without 
state regulation or authorization, to be the equivalent of 
the general elections, in which every one with the constitu­
tional qualifications for voting must be permitted to vote, 
whether Democrat, Progressive Democrat, Republican, So­
cialist, Communist, or what not. If this status prevails, the 
Democratic Party of South Carolina, formed and operated 
as a voluntary association of citizens, is the only party in 
the United States which, for all practical purposes cannot 
hold party primaries and cannot protect its party integrity 
against the invasion of those who neither belong to nor are 
in accord with its political principles and objectives.

If it be said that its practices are objectionable to some, 
and viewed with disapproval by others, is not the answer 
to leave it, unprotected by law and depending upon mutual 
trust, to fall of its own weight in due season, under the im­
pact of public opinion, developing in the traditional Ameri­
can way? The results will be surer, sounder, and more en­
during, and traditional constitutional rights of all will not 
be altered.



B a s k i n  et al., A p p e l l a n t s , v. B r o w n , A p p e l l e e 45

We respectfully urge on the Court the view that the 
Democratic Party of South Carolina’s primaries are not 
state action subject to the Constitutional and statutory pro­
visions relied on by the appellee, and that Bice v. Elmore, 
supra, should be modified accordingly.

CONCLUSION
We respectfully submit that the decision of the District 

Court should be reversed, first, because the District Judge 
should have proceeded no further after the filing of the 
Stansfield affidavit; secondly, because the provisions of the 
rules limiting enrollment and voting to those who subscribe 
to the party’s principles, as declared by the State Con­
vention, were valid; thirdly, because the appellee by his 
own addmission was not eligible to enroll and vote there­
under; and fourthly, because the primary was a voluntary 
political activity of citizens associated together for lawful 
political objectives, was not state action within the meaning 
and application of the Constitutional and statutory pro­
visions relied on by the appellee.

Respectfully submitted,
EUGENE S. BLEASE, 

Newberry, S. C.,
SIDNEY S. TISON, 

Bennettsville, S. C.,
GEORGE WARREN,

Hampton, S. C.,
ROBERT McC. FIGG, JR., 

Charleston, S. C.,
Attorneys for Appellants.