Nixon v. Condon Petitioner's Points
Public Court Documents
November 25, 1931
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Brief Collection, LDF Court Filings. Nixon v. Condon Petitioner's Points, 1931. 1ad6b2a1-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/df51eec6-0509-4011-97c6-742642d3d82f/nixon-v-condon-petitioners-points. Accessed November 23, 2025.
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Ufftee SupfSiii* Ciurt. U.
V' ' S, IS D
NOV 2 5 1931
fftMtUs tO*tnt . •
CM-S'
(Eourt of t\}t Ittiteb States
October Term, 1931
No. 265
L. A. NIXON,
Petitioner,
against
JAMES CONDON and C. H. NOLLE,
Respondents.
On W rit of Certiorari to the United States Circuit
Court of Appeals for the F ifth Circuit.
P E T I T I O N E R ’ S P O I N T S .
James M arshall,
N ath an R. Margold,
A rthur B. Spingarn,
F red C. K nollenberg,
E. F. Cameron,
Petitioners Counsel.
N. H. K ugelmass,
On the Brief.
The Hecla Press, 225 Varick St., N. Y. Tel. W Alker 5-1480.
SUBJECT INDEX.
PAGE
Preliminary Statement.................................................. 1
The Petition...................................................................... 2
The Resolution in Question.......................................... 3
The Statute in Question................................................. 3
Grounds of Demurrer..................................................... G
The Decision of the District Court............................. 0
The Decision of the Circuit Court of Appeals............ 7
Jurisdiction................................................................... . 8
Summary of Petitioner’s Argument............................... 13
P o i n t I—The interest protected in Nixon x. Herndon
was the right to vote in a primary and is the same
interest invaded here, and the classification rejected
by that case was based on race and color and is the
same classification applied here. The only question
before this Court is whether the invasion of this
interest and this classification were the result of
State action..................................................................15-17
P o i n t II—The petitioner in being deprived of the
right to vote at a primary because of his color was
denied the equal protection of the laws by the State
of Texas, in violation of the Fourteenth Amend
ment ......... ................................................................... 18-44
A. The power of respondents to deny petitioner’s
right to vote at the primary election was
derived from the resolution of the State
Democratic Executive Committee adopted
pursuant to authority granted by Chapter
67 of the Laws of 1927. Doth the statute
and the resolution adopted thereunder vio
lated the Fourteenth Amendment because
11
PAGE
they authorized and worked a classification
based on color............................................... 18-28
Legislative Intention................................ 18
The “Inherent Power” Argument........... 21
“ Recognition” of Power Argument........ 2G
B. Even if the Democratic State Executive Com
mittee in adopting the resolution restricting
voting at Democratic primaries to “white”
Democrats exceeded the powers delegated
to it by the Legislature in Chapter G7 of
the Laws of 1927, its action, though ultra
vires, constituted State action in violation
of the Fourteenth Amendment because it
authorized and worked a classification
based on color...............................................28-31
C. The Democratic State Executive Committee,
acting in relation to primary elections, was
part of the governmental machinery of the
State. The resolution of that committee
restricting voting in Democratic primaries
to “white” Democrats was State action and
violated the Fourteenth Amendment and
afforded respondents no justification in de
nying to petitioner the right to vote........31-35
D. Respondents by reason of their office as judges
of election derived their power to deny the
petitioner the right to vote at the primary
election from the statutes of the State. In
applying that power to a State purpose in
such a way as to work a color classification
they violated the Fourteenth Amendment,
irrespective of Chapter 67 of the Laws of
1927 and the resolution of the Democratic
State Executive Committee......................35-44
Authority Vested in Judges of Election.. 36
Consequences of Abuse of Powers.......... 39
Expenses of Primaries.......................... 4:3
Ill
Foint III—The right of petitioner to vote in the pri
mal*}7 regardless of race or color was denied and
PAGE
abridged by the State of Texas, in violation of the
Fifteenth Amendment.................................................45-55
A Primary Vote is a Vote..................................... 45
Fifteenth Amendment Like Nineteenth................ 48
Historical Error...................................................... 49
The Newberry and Other Cases Distinguished.. 50
Petitioner’s Right to Vote Abridged Even if Not
Denied................................................................... 53
Point IV-—Conclusion................................................... 55-56
TABLE OF CASES.
Anderson v. Ashe, (52 Tex. Civ. App. 262..................... 52
Ashford v. Goodwin, 103 Tex. 491................................. 52
Bailey v. Alabama, 219 U. S. 219................................... 18
Binderup v. Bathe Exchange, 263 U. S. 291............... 12
Bliley v. West (Circuit Ct.), 42 F. (2d) 101....... 8,32,56
Bliley v. West (District Ct.), 33 F. (2d) 177.............. 8
Briscoe v. Boyle, 286 S. W. 275 (Tex. Civ. A pp .). . .
23, 25, 26, 27, 32, 33, 48
Child Labor Tax Case, 259 U. S. 20............................. 18
Clancy v. Clough (Tex.), 30 S. W. (2d) 569... .27, 33, 43
Commonwealth v. Rogers, 63 N. E. Rep. 421 (Mass.) 48
Commonwealth v. Willcox, 111 Va. 849......................... 32
PAGE
Ex parte Yarbrough, 110 U. S. 651............................... 49
Fidelity & Deposit Co. v. Tafoya, 270 U. S. 426.......... 28
Ford v. Surget, 97 U. S. 594......................................... 34
Friberg v. Scurry (Tex.), 33 S. W. (2d) 76.............. 27
General Investment Co. v. N. Y. Central R. R., 271
U. S. 228........................................................................ 12
Guinn v. United States, 238 U. S. 347......................... 21
Hammer v. Dagenhart, 247 U. S. 251........................... 18
Hendricks v. The State, 20 Tex. Civ. App. 178, 49
S. W. 705...................................................................... 43
Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278..
14,27, 28,29,31,34,35, 40
Hunt v. Reese, 92 U. S. 214................... ...................... 46
Kimbrough v. Barnett, 93 Tex. 301, 55 S. IV. 120 .... 43
King Mfg. Co. v. Augusta, 277 U. S. 100..................... 34
Koy v. Schneider, 110 Tex. 369.....................................52, 54
PACK
Lincoln v. Hapgood, 11 Mass. 350............................... 43
Lindgren v. United States, 281 U. S. 38....................... 22
Love v. Griffith, 266 U. S. 32.....................................8,10,11
Love v. Taylor (Tex.), 8 S. W. (2d) 795................... 27
Love v. Wilcox, 28 S. W. (2d) 515, 119 Tex. 256. . . .
19. 24, 26, 30, 31, 33
Moore v. Meharg, 287 S. W. 670 (Tex. Civ. App.) .. .34, 53
Myers v. Anderson, 238 U. S. 368...............................8,21
Neal v. Delaware, 103 U. S. 370..................................... 49
Newberry v. United States, 256 LT. S. 232... .14, 50, 51, 54
Nixon v. Condon (District Ct.), 34 F. (2d) 4 6 4 .... 1,6
Nixon v. Condon (Circuit Ct.), 49 F. (2d) 1012.... 1,7
Nixon v. Herndon, 273 U. S. 536... .4, 8,13, 15,16, 17, 45
Raymond v. Chicago Traction Co., 207 U. S. 20.......... 28
Robinson v. Holman, 181 Ark. 428; appeal dis., cert,
denied, 282 U. S. 805................................................ 11,56
Standard Scale Co. v. Farrell, 249 U. S. 571.............. 34
Swafford v. Templeton, 185 U. S. 487........................... 8
Turney v. Ohio, 273 U. S. 510......................................... 43
Waples v. Marrast, 108 Tex. 5, 184 S. W. ISO............ 34
Ward v. Love County, 253 U. S. 17............................... 8
Westerman v. Minims, 220 S. W. 178 (T ex.).............. 48
White v. Lubbock, 30 S. IV. (2d) 72 (Tex. Civ. App.) 27
Wiley v. Sinlder, 179 U. S. 58....................................... 8
Williams v. Bruffy, 96 U. S. 176................................... 34
Willis v. Owen, 43 Tex. 41............................................. 43
v i
Yarbrough, Ex parte, 110 U. S. 651............................. 49
Yick Wo v. Hopkins, 118 U. S. 356................14,20,29, 41
TEXTS, LAW REVIEW ARTICLES, ETC.
PAGE
American Law Reports, 53: 595...................................
Bouvier’s Law Dictionary..............................................
Brown, Primary Disenfranchisement of the Negro,
23 Mich. Law Rev. 279.............................................32,53
Cornell Law Quarterly, 15: 267................................... 43
Funk & Wagnall’s Standard Dictionary..................... 46
Harvard Law Review, 43: 467................................. • • -3
Merriam & Overacker, Primary Elections (1928 Edi
tion ) ............................................................................32, 49
Michigan Law Review, 23: 279................................... 32, 53
Minnesota Law Review, 12: 321, 470...........................22,49
Sargent, Law of Primary Elections, 12 Minn. Law
Rev. 321, 470.............................................................. 22,49
Union League Club of Philadelphia, Essays on Poli
tics, 1868........................................................................ 49
University of Pennsylvania Law Review, 72: 2 2 2 .... 43
World Almanac................................................................ 53
Yale Law Journal, 39: 423......................................... 23
PROVISIONS OF CONSTITUTION.
Fourteenth Amendment.................5, 8,13,14,16, 29, 41, 56
Fifteenth Amendment................5, 6, 8,14,16, 29, 45, 53, 56
Nineteenth Amendment.................................................. 48
Article I, Section IV ......................... ..........................50, 51
FEDERAL STATUTES.
Judicial Code:
Section 24—
m ............................... ..................................... 5I1/ ......................................
..................................... 5,9
..................................... 5,12
(1 4 ) .................................... ..................................... 5,12
Revised Statutes
via
F ederal S t a t u t e s (continued)
United States Code:
Title 8—
Section 31.............................
Section 43.............................
Title 28, Section 41—
( 1) ......................................................
( 11) ...................................................................
( 12) ...................................................................
( 11) ...................................................................
PAGE
G, 8,10,14, 46
.............. 10
5,9
5.12
5.12
TEXAS STATUTES.
Laws of 1927, Chapter 67 (present Art. 3107, Rev.
Civ. Stat.).............................................2, 3, 4,16,18-31, 55
Tenal Code of 1925:
Title Six, Chapter 4—
Article 217............................................................. 38
Article 218............................................................. 38
Article 231............................................................. 38
Article 236.............................................................46,47
Article 241............................................................. 47
Generally............................................................38, 47, 48
Revised Civil Statutes of 1925:
Elections, Chapter 8—
Article 2954........................................................... 37
Article 2955........................................................... 38
Elections, Chapter 13—
Articles 3006-3007................................................. 36,37
Article 8093-a (former Art. 3107).....................4,15
Article 3104.......................................................... 36
Article 3107 (Chap. 67 of Laws of 1927)...........
2, 3, 4,16,18-31, 55
Article 3110 ...................................................... 22,33,48
Article 3121............................................................ 47
Generally.................................................................33, 36
Resolution of Democratic State Executive Commit
tee ..................................................2, 3,16,18-35, 39, 40, 55
Supreme (Court of tltr States
October T erm, 1931.
No. 265.
L. A. N i x o n ,
Petitioner,
against
J ames Condon and C. II. N olle,
Respondents.
PETITIONER’ S POINTS.
Preliminary Statement.
This case comes before this Court on writ of certiorari
to the United States Circuit Court of Appeals for the Fifth
Circuit, granted October 19, 1931 (R. 31), to review a
judgment entered in that court on May 16, 1931 (R. 30-31),
which affirmed a judgment of the United States District
Court for the Western District of Texas, filed July 31,
1929, dismissing the petition (R. 10).
The opinion of the District Court is printed in the
record at pages 15-27 and reported 34 F. (2d) 464.
The opinion of the Circuit Court of Appeals is printed
in the record at pages 28-30 and reported 49 F. (2d) 1012.
The petitioner, a citizen of the United States and of
the State of Texas, brought this action in the United States
District Court for the Western District of Texas against
the respondents, who were judges of election in Precinct
No. 9, El Paso County, Texas, to redress an injury which
he sustained by reason of the acts of the respondents in
their official capacities (R. 1).
The Petition.
The petitioner is a Negro. He was a bona tide member
of the Democratic Party of the State of Texas and in every
respect was entitled to participate in elections held within
that State, whether for the nomination of candidates for
office or otherwise (R. 2-3).
On July 28, 1928, a Democratic primary was held in the
State of Texas to select candidates, not only for State
officers, but also for United States Senator and Congress
men (R. 1-2). On that day the petitioner presented him
self at the polls and offered to take the pledge to support
the nominees of the Democratic primary election held on
that day and to comply in every respect with the valid
requirements of the laws of Texas, save as they violated
the privileges conferred upon and guaranteed to him by
the Constitution and laws of the United States, lie re
quested the respondents to supply him with a ballot and
permit him to vote at the Democratic primary election
held on that day and the respondents refused to permit
the petitioner to vote or to furnish him with a ballot and
stated as the reason that under instructions from the
Democratic county chairman, pursuant to resolution of
the State Democratic Executive Committee, adopted under
the authority of Chapter G7 of the Laws of 1927 of Texas,
only white Democrats were allowed to participate in the
Democratic primary then being held (R. 2-3). The re
spondents rilled that the petitioner was not entitled to
vote in the Democratic primary because he loas a Negro
(R. 3, 5). The resolution of the State Democratic Execu
tive Committee of Texas, under the terms of which re
spondents purported to act, reads as follows (R. 3) :
3
The Resolution in Question.
“ Resolved : That all white Democrats who are
qualified under the Constitution and laws of Texas
and who subscribe to the statutory pledge provided
in Article 3110, Revised Civil Statutes of Texas, and
none other, be allowed to participate in the primary
elections to be held July 28, 1928, and August 25,
1928, and further, that the Chairman and secretary
of the State Democratic Executive Committee be
directed to forward to each Democratic County
Chairman in Texas a copy of this resolution for
observance.” (Black type ours.)
The statute under the authority of which the Democratic
State Executive Committee adopted this resolution, Chap
ter G7 of the Laws of 1927, First Called Session (Article
3107, Chapter 13 of the Revised Civil Statutes of Texas),
gave authority to the State Executive Committee to pre
scribe qualifications of party members and determine who
shall be qualified to vote or participate in such political
party. The statute was passed as an “ emergency” meas
ure, because, as the statute itself proclaims, “the fact that
the Supreme Court of the United States has recently held
Article 3107 invalid, creates an emergency and an impera
tive public necessity that the constitutional rule requiring
bills to be read on three several days in each House be
suspended * * * ” (R. 4-5).
The Statute in Question.
“ A u t h o r i z i n g P o l i t i c a l P a r t i e s T h r o u g h S t a t e
E x e c u t i v e C o m m i t t e e s t o P r e s c r ib e Q u a l i
f i c a t i o n s o f T h e i r M e m b e r s .
(H. B. No. 57)
Chapter 67.
An Act to repeal Article 3107 of Chapter 13 of
the Revised Civil Statutes of Texas, and substi
tuting in its place a new article providing that
every political party in this State through its State
Executive Committee shall have the power to pre
scribe the qualifications of its own members and
shall in its own way determine who shall be quali
4
fied to vote or otherwise participate in such political
party, and declaring an emergency.
Be it enacted by the Legislature of the State of
Texas:
S f x t i o n 1. That Article 3107 of Chapter 13 of
the Revised Civil Statutes of Texas be and the same
is hereby repealed and a new article is hereby en
acted so as to hereafter read as follows:
‘A r t i c l e 3107. Every political party in this
State through its State Executive Committee
shall have the power to prescribe the qualifica
tions of its own members and shall in its own
way determine who shall be qualified to vote or
otherwise participate in such political party; pro
vided that no person shall ever be denied the right
to participate in a primary in this State because
of former political views or affiliations or because
of membership or non-membership in organiza
tions other than the political party.’
Sec. 2. The fact that the Supreme Court of the
United States has recently held Article 3107 invalid,
creates an emergency and an imperative public
necessity that the Constitutional Rule requiring
bills to be read on three several days in each House
lie suspended and said rule is hereby suspended, and
that this Act shall take effect and be in force from
and after its passage, and it is so enacted.
Approved June 7, 1927.
Effective 90 days after adjournment.”
The decision of this Court which was referred to by the
Texas Legislature was the case of Nixon v. Herndon, 273
U. S. 536, which held unconstitutional a statute of the
State of Texas which expressly prohibited Negroes from
participating in Democratic primary elections held in that
State.* It is alleged in the petition (and the history of
* The statute involved in Nixon v. Herndon, i.e., the old Article 3107:
“Article 3093a. All qualified voters under the laws and constitution
of the State of Texas who are bona fide members of the democratic party
shall be eligible to participate in any democratic party primary election,
provided such voter complies with all laws and rules governing party
primary elections; however, in no event shall a negro be eligible to par
ticipate in a democratic party primary election held in the State of Texas,
and should a negro vote in a democratic primary election, such ballot
shall be void and election officials are herein directed to throw out such
ballot and not count the same.” (Italics ours.)
5
the Act sustains the allegation) that Chapter 67 of the
Laws of 1927 was an attempt to evade the decision of this
Court in Nixon v. Herndon and to provide, by delegation
to the party Executive Committee, the disfranchisement of
Negroes which this Court held could not be done by direct
action of the Legislature (R. 5-6).
The petition also alleges that at the time of the passage
of Chapter 67 of the Laws of 1927 of Texas the Democratic
Party was the only political party in the State which held
a primary election and that the statute, when it referred
to the State Executive Committee, was enacted for the
purpose of preventing the petitioner and other Negroes
who were members of the Democratic Party from partici
pating in Democratic primary elections (Ii. 6). Further
more, the petition sets forth that there are many thousands
colored Democratic voters in the State of Texas situated
as is the petitioner; that Texas is a State which is nor
mally so overwhelmingly Democratic that nomination on
the Democratic ticket is equivalent to election, and that
the only real contest at the polls is that in the Democratic
primaries. And, finally, it is alleged that the acts of the
respondents in denying the petitioner the right to vote at
the Democratic primary in question were wrongful, un
lawful and without constitutional warrant and deprived
him of valuable political rights, to his damage in the sum
of $5,000 (R. 7-8).
This suit was brought under Section -11 of Title 28 of
the United States Code, subdivisions 1, 11, 12 and 14 being
applicable.
Judgment is demanded against the respondents (a) be
cause Chapter 67 of the Laws of 1927 of Texas and the
resolution of the Democratic State Executive Committee
thereunder denied the petitioner the equal protection of
the laws of Texas, in violation of the Fourteenth Amend
ment to the Constitution of the United States; (b) because
the petitioner’s right to vote at the primary election was
denied and abridged by the resolution of the Democratic
State Executive Committee and the action of the Legis
lature of Texas on account of his race and color, in viola-
G
tion of the Fifteenth Amendment to the Constitution;
(c) because the resolution and statute in question are
contrary to Section 31 of Title 8 of the United States
Code; and (d) because the respondents, acting under a
delegation of State power, violated those sections of the
Constitution and that Act of Congress when they denied
the petitioner the right to vote on the ground that he is
a Negro (R. 6-7).
Grounds of Demurrer.
The respondents made a motion to dismiss. In addition
to controverting the allegations of the petition with respect
to the constitutionality of the statute and the proceedings
it was urged that the subject-matter of the suit is political
and that the Court was without jurisdiction to determine
the issues or to award the relief prayed for; that the alle
gations of the petition were not sufficient to constitute a
cause of action; that irrespective of statutory authority,
the State Executive Committee of a political party had
authority to determine who should comprise its member
ship. The motion also put into issue the allegation that
the petitioner was a Democrat (E. 8-10). The last ground
presents an issue of fact which could not be determined
on a motion addressed to the pleadings.
The Decision of the District Court.
Honorable Charles A. Boynton, District Judge, who
heard the motion, granted the motion to dismiss in an
opinion (R. 15-27, 34 F. [2d] 4G4) in which he said:
(1) that the Fourteenth and Fifteenth Amendments to
the Constitution of the United States cannot be violated
except by some action properly to be characterized as State
action; (2) that Chapter G7 of the Laws of 1927 on its
face directs no action in violation of the Federal Constitu
tion; (3) that the action of the State Democratic Com
mittee and the judges of election, complained of in the
petition, was not State action, because (a) the members
of the committee and the judges of election were not paid
by the State, and so were not like the persons officiating
at the Illinois and Virginia primaries, who have been held
liable in damage to qualified citizens to whom they denied
the right to vote; (b) they were not officers of the State;
(c) they were acting only as private representatives of
the Democratic political Party, and (d) the members of
the Democratic Party possess inherent power to prescribe
the qualifications of those who may vote at its primaries,
irrespective of and without reference to Chapter 67 of
the Laws of 1927; and (4) that a primary election is not
an election within the meaning of the Fifteenth Amend-
ment, because (a) a political party is not a governmental
agency, and (b) at the time the Thirteenth, Fourteenth
and Fifteenth Amendments were adopted, primary elec
tions were unknown and therefore may not be held to be
covered by these Amendments.
The Decision of the Circuit Court of Appeals.
The Circuit Court of Appeals, in affirming the District
Court, rendered an opinion by Bryan, C.J. (R. 28-30;
49 F. (2d) 1012), which held as follows: (1) that the
Fourteenth and Fifteenth Amendments apply to State ac
tion, not to action of private individuals or associations;
(2) that this case differs from Nixon v. Herndon, because
there the element of State action was supplied by the en
actment of a statute which expressly discriminated against
Negroes, whereas here the statute merely recognized an
existing power on the part of the Democratic State Ex
ecutive Committee to fix the qualifications of its members;
(3) that the election officials who rejected the petitioner
were appointed by the Democratic State Executive Com
mittee, and were not paid by the State, and (4) that the
decision in West v. Bliley is distinguishable because there
the State of Virginia conducted the primary and paid the
8
expenses thereof, whereas in Texas the State merely regu
lates a privately conducted primary election so as to secure
a fair and honest election.
Jurisdiction.
The jurisdiction of Federal Courts over this suit is pro
vided by Section 41, Title 28 of the United States Code
(Judicial Code, Sec. 24, as amended). It is there provided,
in subdivision 1, that the District Court shall have original
jurisdiction over “ * * * First. Of all suits of a civil
nature, at common law or in equity, * * * where the
matter in controversy exceeds, exclusive of interest and
costs, the sum or value of $8,000, and (a) arises under the
Constitution or laws of the United States, or treaties,
made or which shall be made, under their authority
* * * ??
This is a suit of a civil nature at common law for a sunt
in excess of $3,000 and the matter in controversy arises
under (1) the Fourteenth Amendment to the Constitution
of the United States; (2) the Fifteenth Amendment to
the Constitution of the United States; (3) Section 31,
Title 8 of the United States Code.
In similar circumstances this Court has assumed juris
diction.
Wiley v. Kinkier, 179 U. S. 58, G5.
Swafford v. Templeton, 185 U. S. 487.
Myers v. Anderson, 238 U. S. 3G8.
Nixon v. Herndon, 273 U. S. 53G.
Ward v. Love County, 253 U. S. 17, 22.
Cf. Love v. Griffith, 26G U. S. 32.
In Bliley v. West, 42 F. (2d) 101, the Circuit Court of
Appeals for the Fourth Circuit affirmed the order of the
District Court for the Eastern District of Virginia (33
F. (2d) 177, opinion by Groner, D.J.) overruling a de
9
murrer to a petition seeking the same relief as is sought
in this case. There, the Democratic State Convention,
like the Democratic State Committee here, adopted a
resolution that only white persons should participate in
Democratic primaries, and the petitioner, a Negro, was
not permitted to vote in a Democratic primary in the
State of Virginia. No attempt was made to bring that
case up for review by this Court.
The jurisdiction of this Court is not open to attack on
the ground that the subject-matter of the suit is “political.”
That argument was disposed of in Nixon v. Herndon,
supra*
Subdivision 11 of Section 41 of Title 28 of the Judicial
Code likewise gives a basis for jurisdiction by the Federal
Courts, for it authorizes suits for injuries on account of
acts done under the laws of the United States “ or to en
force the right of citizens of the United States to vote in
the several States.”
Subdivision 12 deals with suits concerning civil rights
and gives the District Courts jurisdiction “of all suits
authorized by law to be brought by any person for the
recovery of damages on account of any injury to his per
son or property or of the deprivation of any right or privi
lege of a citizen of the United States by any act done in
furtherance of any conspiracy mentioned in Section 47 of
Title 8.”
Subdivision 14 gives the Federal Courts jurisdiction
“ of all suits at law or in equity authorized by law to be
brought by any person to redress deprivation under color
of any law, statute, ordinance, regulation, custom or usage
of any State or any right, privilege or immunity secured
by the Constitution of the United States or of any right
secured by any law of the United States providing for
* See opinion o f Mr. Justice Holmes at page 540.
10
equal rights of citizens of the United States or of all per
sons within the jurisdiction of the United States.”
This is a suit at law to redress the deprivation of peti
tioner’s right to vote at a primary election in the State of
Texas. The deprivation was under color of a statute of
the State of Texas, to wit, Chapter 67 of the Laws of 1927,
and/or under color of a resolution adopted by the State
Democratic Executive Committee of Texas. The suit is
not only, however, to redress the deprivation of civil rights
by reason of the unconstitutional restraint upon the peti
tioner’s right of suffrage in violation of the Fourteenth
and Fifteenth Amendments, but it is also based specifically
upon the violation of a Federal statute, viz., Section 31,
Title 8 of the United States Code, which provides:
“ Section 31. Race, color, or previous condition
not to affect right to vote. All citizens of the United
States who are otherwise qualified by law to vote at
any election by the people in any State, Territory,
district, county, city, parish, township, school dis
trict, municipality, or other territorial subdivision,
shall be entitled and allowed to vote at all such
elections, without distinction of race, color, or pre
vious condition of servitude; any constitution, law,
custom, usage, or regulation of any State or Terri
tory, or by or under its authority, to the contrary
notwithstanding.”
Section 43 of Title 8 of the United States Code also
grants a right of action for violation of the right of fran
chise guaranteed by Section 31, supra.
It should be noted in this connection that not only can
didates for local office but also for United States Senator
and Congressman were nominated at the primary held in
Texas on July 28, 1928 (R. 2).
The authorities already cited demonstrate that in sim
ilar instances this Court has assumed jurisdiction.
In the recent case of Love v. Griffith, 266 U. S. 32, the
plaintiffs as qualified electors sought to enjoin as violative
of the Constitution the enforcement of a rule made by the
11
Democratic City Executive Committee of Houston, Texas,
that Negroes should not be allowed to vote at a particular
Democratic primary election. The injunction was denied
and the plaintiffs appealed to the Court of Civil Appeals
of Texas, which held that at the date of its decision,
months after the election, the cause of action had ceased
to exist and that the appeal would not be entertained on
the question of costs alone. The suit was brought to this
Court on writ of error and was dismissed, Mr. Justice
Holmes saying at page 34:
“If the case stood here as it stood before the
court of first instance it would present a grave
question of constitutional law and we should be
astute to avoid hindrances in the way of taking it up.
But that is not the situation. The rule promulgated
by the Democratic Executive Committee was for a
single election only that had taken place long before
the decision of the Appellate Court. No constitu
tional rights of the plaintiffs in error Avere infringed
by holding that the cause of action had ceased to
exist. The bill Avas for an injunction that could
not be granted at that time. There Avas no consti
tutional obligation to extend the remedy beyond
what was prayed.’’ (Black type ours.)
The “ grave question of constitutional law” which this
Court could not consider in Ix>ve v. Griffith, because in
that instance time had made the issue moot, has become
the vital point of conflict in the present suit.*
The Circuit Court of Appeals accepted jurisdiction of
this cause and decided the motion to dismiss upon the
merits without questioning the jurisdiction of the Federal
Court (R. 28-30).
The District Court after deciding the motion on the
merits evidently confused the question of jurisdiction and
the question of absence of merits in the discussion in the
last paragraph of the opinion (R. 27).
* Robinson v. Holman, 181 Ark. 428, appeal dismissed and certiorari
denied 282 U. S. 805, apparently on same grounds as Love v. Griffith.
12
This distinction between jurisdiction and merits has
been clearly set forth by this Court in Binderup v. Pathe
Exchange, 263 U. S. 291, at page 305,* and General Invest
ment Co. v. AT. Y. Central R. R., 271 U. S. 228, at page 230.f
As will be seen after the case of Nixon v. Herndon,
supra, has been analyzed the sole diffei*ence between that
case and this one is that there the respondents denied the
petitioner the right to vote at a Democratic primary be
cause the statute specifically forbade colored people to
vote in Democratic primaries, whereas in this case the
same petitioner was refused the right to vote at a Demo
cratic primary by the election officials on the ground that
a, resolution of the States Democratic Executive Commit
tee, adopted pursuant to authority granted by the Legis
lature, prohibited Negroes from voting at Democratic
primaries.
The only issue in this case is, then, the question of
whether the acts of the respondents was State action. If
it was State action, then Nixon v. Herndon is applicable.
This is clearly a question over which this Court has juris
diction. It presents a justiciable issue irrespective of the
merits of the contention. As the full nature of this issue
is demonstrated by the succeeding Points, for the sake of
brevity it will not be repeated here.
* In the Binderup case, Mr. Justice Sutherland said:
“Jurisdiction is the power to decide a justiciable controversy,
and includes questions of law as well as of fact. A complaint
setting forth a substantial claim under a federal statute presents
a case within the jurisdiction of the court as a federal court;
and this jurisdiction cannot be made to stand or fall upon the way
the court may chance to decide an issue as to the legal sufficiency
of the facts alleged any more than upon the way it may decide
as to the legal sufficiency of the facts proven. Its decision either
way upon either question is predicated upon the existence of juris
diction, not upon the absence of it.”
f i n the General Investment Company case, Mr. Justice Van Devanter
said:
“By jurisdiction we mean power to entertain the suit, consider
the merits and render a binding decision thereon; and by merits
we mean the various elements which enter into or qualify the
plaintiff’s right to the relief sought. There may be jurisdiction
and yet an absence of merits ( The Fair v. Kohler Die Co., 228
U. S. 22, 25 ; Geneva Furniture Co. v. Karpen, 238 U. S. 254, 258),”
* * *
13
We respectfully refer the Court to the ensuing argu
ment, not only as a demonstration of the merits of the
petitioner’s case, but also in support of the jurisdiction of
this Court.
Summary of Petitioner’s Argument.*
I. The interest protected in Nixon v. Herndon was the
right to vote in a primary and is the same interest invaded
here, and the classification rejected by that case was based
on race and color and is the same classification applied
here. There was no question in Nixon v. Herndon of State
action, that being implicit in the statute. That is the
only open question in this case under the Fourteenth
Amendment which was not disposed of in the former case.
II. The petitioner by being denied the right to vote at
the primary election because of his color was denied the
equal protection of the laws by the State of Texas in
violation of the Fourteenth Amendment. The respond
ents’ action was action of the State of Texas, because—
A. The power of the respondents to deny the peti
tioner’s right to vote at the primary election was
derived from the resolution of the Democratic State
Executive Committee, which was adopted pursuant to
the authority granted to it by Chapter 67 of the Laws
of 1927. The respondents’ power was consequently
derived from the State and was not inherent in the
party.
B. Even if the Democratic State Executive Com
mittee in adopting the resolution restricting voting
at Democratic primaries to white persons exceeded
the powers delegated to it by the Legislature in Chap
* Even if the arguments made herein were all invalid, nevertheless the
petition alleges a cause of action which the State Court could not have
failed to entertain without itself violating the Fourteenth Amendment,
and of which the United States District Court had jurisdiction, in view of
the substantial Federal questions raised and argued herein. Having full
confidence in the arguments here presented, we do not wish unduly to
extend this brief and shall omit elaboration of this further argument
unless the Court requests otherwise.
14
ter G7 of the Laws of 1927, its action, though ultra
vires, was nevertheless State action.
C. The Democratic State Executive Committee,
acting in relation to primary elections, was part of
the governmental machinery of the State. In adopt
ing the resolution in question the action of the Com
mittee was State action and the resolution could not
therefore justify the denial of the petitioner's right
to vote.
I). Irrespective of Chapter 07 of the Laws of 1927
of Texas and the resolution of the Democratic State
Executive Committee the respondents, acting as
judges of election, when they denied the petitioner
the right to vote were applying to a public purpose
powers with which the State had vested them, and
consequently their action was State action as defined
in Home Tel. & Tel. Co. v. Ims Angeles, 227 U. S. 278,
and Tick Wo v. Hopkins, US U. S. 356.
III. The respondents’ denial of the petitioner’s right to
vote in the Democratic primary was in violation of the
Fifteenth Amendment.
(A) The same arguments with respect to State
action under the Fourteenth Amendment are appli
cable under the Fifteenth Amendment.
(B) The petitioner was both denied the right to
vote and his right to vote was abridged within the
meaning of the Fifteenth Amendment.
(C) The right to vote guaranteed by the Fifteenth
Amendment is not the same thing as an election re
ferred to in Article I, Section 4, of the Constitution
and Newberry v. United States, 256 U. S. 232, is inap
plicable.
(D) Section 31, Title 8, of the United States Code
prohibits discrimination by denying the right to vote
by reason of color and was violated by the action of
the respondents.
15
I.
The interest protected in Nixon v. Herndon was
the right to vote in a primary and is the same interest
invaded here, and the classification rejected by that
case was based on race and color and is the same
classification applied here. The only question before
this Court is whether the invasion of this interest and
this classification were the result of State action.
As the case at bar is really a sequel to Nixon v. Herndon,
273 U. S. 536, and in all respects except one identical with
that case, the determination of this question will be facili
tated by a preliminary consideration of Nixon v. Herndon
itself and a precise delimitation of the respects in which
it is controlling here.
There Nixon, the same petitioner, brought his suit in
the United States District Court for the Western District
of Texas to recover the sum of $5,000 in damages from the
judges of election, who, like the present respondents, had
refused to permit him to vote in a Democratic primary in
the State of Texas. The primary then, as in this case, was
held at El Paso for the nomination of candidates on the
Democratic ticket for United States Senator, for Repre
sentative to Congress and for State and local offices. Then,
as in this case, the judges of election refused to permit
the petitioner to vote in the Democratic party primary
solely because he was a Negro.
In that case it was sought to justify this discriminatory
classification based upon the petitioner’s color by a Texas
statute enacted in May, 1923, designated Article 3093-a
(the former Art. 3107, Texas Rev. Civ. Stat.), which pro
vided that “ in no event shall a negro be eligible to partici
pate in a Democratic party primary election held in the
State of Texas,” etc.
1G
Following the decision in Nixon v. Herndon that statute
was repealed and the new statute adopted.
Now the judges of election have sought to justify their
discrimination against the petitioner, based as it is on
his color, because of a resolution of the State Democratic
Executive Committee quoted supra, page 3, which was
adopted pursuant to Chapter G7 of the Laws of 1927 and
which restricts voting in Democratic primary elections to
“white Democrats.”
The statute of 1927 did not expressly render Negroes
ineligible to vote at Democratic primaries, but empowered
the State Executive Committees of such political parties
as held primary elections to determine who should be
qualified to vote at such primaries.*
In both cases petitioner contended that the deprivation
of his right to vote was in violation of the Fourteenth and
Fifteenth Amendments.
In that case, as in this case, the defendant judges of
election moved to dismiss the petition on the ground that
the subject-matter of the action was political, that it was
not within the jurisdiction of the court, that neither the
Fourteenth nor the Fifteenth Amendment nor any laws
adopted pursuant thereto applied to primary elections, and
that the petition failed to state a cause of action.
In Nixon v. Herndon this Court held:
(1) that it was unnecessary to determine whether
the petitioner was deprived of his right to vote within
the meaning of the Fifteenth Amendment, because he
had been deprived of civil rights under the Fourteenth
Amendment ;f
* The Democratic Party being the only party polling over 100.000 votes
in Texas was the only party required by law to hold primary elections.
t “The important question is whether the statute can be sustained. But
although we state it as a question, the answer does not seem to be open to
a doubt. W e find it unnecessary to consider the Fifteenth Amendment,
because it seems to us hard to imagine a more direct and obvious infringe
ment of the Fourteenth. That amendment, while it applies to all, was
passed, as we know, with a special intent to protect the blacks from dis
crimination against them” (pp. 540-541).
17
(2) that this deprivation of civil rights was accom
plished by an arbitrary classification, viz.: one with
out constitutional justification;*
(3) that this classification was the result of State
action ;f and
(4) that consequently the Fourteenth Amendment
was applicable and a common law right of action for
damages lay against the offending judges of election.^
The sole question before this Court is whether the action
of the respondents as judges of election in denying the
petitioner the right to vote was taken under State author
ity or was in effect action by the State itself. If this be so
the present case will then come within the category of
Nixon v. Herndon and the action of the respondents would
be without constitutional justification. In that event the
judgment appealed from must be reversed.
* “The statute of Texas, in the teeth of the prohibitions referred to,
assumes to forbid negroes to take part in a primary election the impor
tance of which we have indicated, discriminating against them by the
distinction of color alone” (p. 541).
f “States may do a good deal of classifying that it is difficult to believe
rational, but there are limits, and it is too clear for extended argument
that color cannot be made the basis of a statutory classification affecting
the right set up in this case” (p. 541).
$ “O f course the petition concerns political action but it alleges and
seeks to recover for private damage. That private damage may be caused
by such political action and may be recovered for in a suit at law hardly
has been doubted for over two hundred years, since Ashby v. White, 2 Ld.
Raym. 938, 3 id. 320, and has since been recognized by this Court. Wiley
v. Sinkler, 179 U. S. 58, 64, 65. Giles V. Harris, 189 U. S. 475, 485. See
also Judicial Code, Sec. 24 (1 1 ), (1 2 ), (1 4 ). Act of March 3, 1911, c.
231; 36 Stat. 1087, 1092. If the defendants’ conduct was a wrong to the
plaintiff, the same reasons that allow a recovery for denying the plaintiff
a vote at a final election allow it for denying a vote at the primary election
that may determine the final result” (p. 540, italics ours).
18
II.
The petitioner in being deprived of the right to
vote at a primary because of his color was denied the
equal protection of the laws by the State of Texas in
violation of the Fourteenth Amendment.
A. The power o f respondents to deny peti
tioner’s right to vote at the primary election was
derived from the resolution of the State Demo
cratic Executive Committee adopted pursuant to
authority granted by Chapter 67 o f the Laws
o f 1927. Both the statute and the resolution
adopted thereunder violated the Fourteenth
Amendment because they authorized and worked
a classification based on color.
The language of the new Article 3107 as enacted by
Chapter 07 of the Laws of 1927 is broad enough to be an
authorization from the Texas Legislature empowering the
State Executive Committee of the Democratic Party to
determine, among other things, that only white Democrats
shall be qualified to vote at Democratic primary elections.*
If the Democratic Legislature of Texas could not con-
stitutionally forbid Negroes to vote at primaries in view
of the decision of this Court in Nixon v. Herndon, it could
nevertheless with a feeling of assurance entrust to the
Democratic State Committee power to enact such prohibi
tion and achieve the same end.f
Legislative Intention.
That it was the legislative intention to accomplish this
purpose and to evade and nullify that decision appears
from the face of the enactment. The statute expressly
indicates that the new' Article 3107 was being substituted
* See Chapter 67 of Laws of 1927, set forth in full at page 3, supra.
f This Court has held that a legislative body cannot accomplish by
indirection something which it is without power to do directly. Cf. Ham
mer v. Dagenhart, 247 U. S. 251, and Child Labor Tax Case, 259 U. S. 2Q.
And see Bailey v. Alabama, 219 U . S. 219.
19
for the one held unconstitutional, in order to take care of
the “emergency” created by the decision in Nixon v. Hern
don. What could this emergency be if not that Negroes
would be able to vote at the next primary election unless
some new method were devised to exclude them? If the
Legislature had intended to meet the emergency in such
a manner as to conform to, rather than circumvent the
decision of this Court which created the so-called emer
gency, it is unthinkable that the Legislature would not
expressly have stated in the new provision that the wide
language conferring authority on the Executive Committee
to determine who should vote at primary elections was
not to be construed to authorize the exclusion of Negroes
because of their race and color. The Legislature was ac
tively aware of the necessity of limiting the authority of
the State Committee, for it did .actually impose limitations
by the proviso which forbade the denial of the right to
vote at primary elections “because of former political
views or affiliations or because of membership or non
membership in organizations other than the political
party.” It would have been a simple matter to add the
words “ or because of race or color.” The failure of the
Legislature to do so in the light of the declared emergency
created by the invalidation of the former Article 3107
enacted in May, 1923, completely disposes of any and all
doubt as to the proper construction of the new statute of
1927. By providing that the Executive Committee “ shall
in its own way determine who shall be qualified to vote,”
Chapter 67 of the Laws of 1927 plainly delegated author
ity to the committee to determine among other things that
only white Democrats should be entitled to vote at Demo
cratic primary elections.*
* Senator Thomas P. Love, a member of the Texas Senate when Arti
cle 3107 was adopted in 1927, filed in his own behalf a brief in the Texas
Supreme Court in Love v. Wilcox, 28 S. W . (2d) 515, in which he was
plaintiff. In that brief he said that the statute had “no other purpose
whatsoever” than “to provide, if possible, other means by which Negroes
could be barred from participation, both as candidates and voters, in the
primary elections of the Democratic Party, which would stand the test
of the courts.” And see House Journal of First Called Session of the
Fortieth Legislature of Texas, at pages 302 ct seq., and arguments by
Representatives Faulk and Stout discussing Article 3107, which was House
Bill No. 57.
The Democratic State Executive Committee did “ in its
own Avay determine who shall be qualified to vote” by
providing that only “white Democrats” who are qualified
under the Constitution and laws of Texas and who sub
scribe to Article 3110 of the Revised Civil Statutes, should
have the right to vote in the primaries of July 28, 1928,
and August 25, 1928 (see Resolution supra, p. 3).
It would seem to follow as a matter of course that the
Democratic State Executive Committee was acting under
and pursuant to the authority which the Legislature had
conferred upon it.
The Legislature, then, having given to the Democratic
State Executive Committee the authority to fill in the
blank which it left in the statute as to the qualification
of voters at primaries, made the Democratic State Execu
tive Committee pro tanto its agency, and the old maxim
qui facit per alium facit per se is applicable.
It follows that the resolution of the Executive Commit
tee must be read as an integral part of the statute itself,
and when superimposed upon Chapter 67 of the Laws of
1927, this new section is identical with the old Article 3107
which was considered and condemned in Nixon v. Herndon.
Although the new Article 3107 makes no discrimina
tion against Negroes in so many words, this Court can
not accept the statute at its face value, but must go fur
ther and examine what has been accomplished behind and
by means of its bland exterior by the Democratic State
Executive Committee. In the words of Mr. Justice
Matthews in Yick 1 Vo v. Hopkins, 118 U. S. 356, 373:
“ Though the law itself be fair on its face and
impartial in appearance, yet, if it is applied and
administered by public authority with an evil eye
and an unequal hand, so as practically to make
unjust and illegal discriminations between persons
in similar circumstances, material to their rights,
the denial of equal justice is still within the pro
hibition of the Constitution. This principle of
interpretation has been sanctioned by this court in
Henderson v. Mayor of New York, 92 U. S. 259;
21
Chy Lung v. Freeman, 92 U. S. 275; Ex parte Vir
ginia, 100 U. S. 339; Neal v. Delaware, 103 U. S.
370; and Soon Hing v. Crowley, 113 U. S. 703.”
This Court has on other occasions rejected as uncon
stitutional statutes which sought to re-establish, the status
quo of the days before the adoption of the Fifteenth
Amendment by excluding Negro voters from the polls
through the medium of “grandfather clauses.”
Guinn v. United States, 238 U. S. 347.
Myers v. Anderson, 238 U. S. 368.
The “ Inherent Power” Argument.
It is urged by the respondents and by the courts below
(R. 25, 30) that regardless of the statute there is inherent
power in the political party to prescribe the qualifications
of its own members and those entitled to vote at party
primary elections. It has been shown above that the
Democratic State Executive Committee intended to act
under the new Article 3107; but even if the Committee did
not intend to act under the statute it could not avoid
doing so. For assuming that such inherent power existed
before the Legislature of Texas manifested its intention
to take over the field of primary elections by enacting
legislation touching on every phase of the primary,
including the qualifications of voters, this power no
longer exists over the qualifications of voters at party
primaries.* It is sufficient that the Legislature has spoken
on this subject. It has invaded the field of the primary
and it must therefore be deemed to have assumed full con
trol of the situation.
The State being the supreme sovereignty, it must be
deemed to have superseded whatever sovereign powers
* This does not mean that for some purposes the Executive Committee
may not have inherent power still unaffected by the action of the Legis
lature; nor does it mean that if the Legislature had not acted with respect
to primaries, the parties would not have had jurisdiction over the com
position of the electorate at such primaries. These are matters that need
not now be questioned or decided.
22
political parties may previously have had with respect to
the control of primaries and party membership. Fruitful
analogy and ample support and authority are supplied by
the cases which have dealt with the relation of Congress
and the State Legislatures in connection with the Com
merce Clause and the State police powers.*
That the State has expressed itself in regard to pri
maries is evidenced by old Article 3107, considered in
Nixon v. Herndon, in which the Legislature specifically
provided the qualifications of voters at primary elections.
It also provided by Article 3110 of the Revised Civil
Statutes of 1925 a statutory pledge for voters, f
It is clear from the face of Chapter 67 of the Laws of
1927 that the Legislature did not relinquish its sovereignty
when it delegated its power to determine the qualifications
of voters at primaries to the party executive committees,
because (1) the new statute did not purport to withdraw
legislative sovereignty but merely to substitute a new pro
vision in place of the one declared unconstitutional, the
statute, to quote its own terms, being “ to repeal Article
3107 of Chapter 13 of the Revised Civil Statutes of Texas,
and substituting in its place a new article * * and
(2) the statute contains explicit limitations on the power
of the party executive committees forbidding them to deny
the right to participate in a primary “because of former
political views or affiliations or because of membership or
non membership in organizations other than the political
party.”
There is ample authority in the decisions of the Texas
courts to demonstrate that the Democratic Party in Texas
and its Executive Committee had ceased to have any in
*See article by Thomas Reed Powell, 12 Minn. Law Rev. 321, 470;
Lindgrcn v. United States, 281 U. S. 38, 46.
f “Art. 3110. Test on ballot. No official ballot for primary election
shall have on it any symbol or device or any printed matter, except a
uniform primary test, reading as follows: ‘I am a ........................ (inserting
name of political party or organization of which the voter is a member)
and pledge myself to support the nominee of this primary’ ; and any
ballot which shall not contain such printed test above the names of the
candidates thereon, shall be void and shall not be counted.”
See also Article 2955, qualifications for voters which are applicable to
primary elections. Texas Election Law pamphlet, p. 26.
2.2
herent power to prescribe qualifications of voters at Demo
cratic primary elections long before the resolution here in
question was adopted.*
In Briscoe v. Boyle, 286 S. W. 275 (Tex. Civ. App.,
1926), this very question was squarely presented and the
Court held that all inherent power in the premises ceased
to exist when the Legislature entered the field of primary
election regulation and enacted legislation concerning the
qualifications of voters at such elections.! In that case
a county Democratic executive committee adopted a reso
lution excluding from primary elections all who had voted
against any Democratic gubernatorial nominee in the pre
vious election. Fourteen such persons brought suit against
the judges of election to enjoin them from enforcing the
resolution. The injunction was denied in the lower court
but on appeal it was granted. The Texas Court of Civil
Appeals considered at length the legislative situation with
respect to primary elections and held that since the State
of Texas had legislated in detail concerning the qualifica
tions of voters at such elections, the political parties them
selves no longer had any power to prescribe qualifications
not made under authority of the statute. The Court said
at page 276:
“ Before the legislative department invaded the
province of party government, and assumed control
and regulation of party machinery, the right to say
who should and who should not participate in party
affairs was exercised by the party governments,
with which the courts would not concern them
selves.
But the Legislature has taken possession and con
trol of the machinery of the political parties of the
State, and, while it permits the parties to operate
that machinery, they do so only in somewhat strict
accordance with the rules and regulations laid down
in minute and cumbersome detail by the legislative
body. The statute designates the official positions
to be occupied in the parties, and, while it permits
the members of the parties to select such officials,
* And see 43 Harv. Law Rev. 467, 471; 39 Yale Law Journ. 423, 424.
t That case involved the old Article 3107 prior to its consideration by
this Court in Nixon v. Herndon.
21
they can do so only in the manner prescribed by the
statutes, which define the powers and duties of
those officials, beyond which they cannot lawfully
act. The statute prescribes the time, place, and
manner of holding primary elections. It prescribes
the forms of the ballots to be used, and the process
by which the election officials shall identify and
hand out the ballots and by which the voters shall
mark and deposit the ballots when voted. It pre
scribes the declaration to be made by the voter, and
the obligation to be assumed by him as a condition
precedent to the validity of his ballot. In fine, the
Legislature has in minute detail laid out the process
by which political parties shall operate the statute-
made machinery for making party nominations, and
has so hedged this machinery with statutory regu
lations and restrictions as to deprive the parties and
their managers of all discretion in the manipulation
of that machinery. * * *
I?y excluding negroes from participating in party
primary elections, and by legislating upon the sub
ject of the character and degree of party fealty re
quired of voters participating in such elections, the
Legislature has assumed control of that subject to
the exclusion of party action, thus depriving the
party of any power to alter, restrict or enlarge the
lest, of the right of the voter to participate in the
party primaries.’’ (Black type and italics ours.)*
The argument of “ inherent power” has been disposed
of by the Texas Courts in Lore v. Wilcox, l ib Tex. 256, 28
8. W. (2d) 515 (Texas, 1930), which involved the very
statute under consideration in this case. There the plaintiff
sought a mandamus to compel the Democratic State and
County Executive (Committees to place his name on a guber
natorial ballot of the Democratic primary and to desist
from enforcing a resolution passed in February, 1930,
by the Democratic State Executive Committee, which
precluded anyone from becoming a candidate at the Demo
cratic primaries if he had voted against the party in the
* The force of that decision was in no way diminished when this
Court invalidated the particular provision which excluded Negroes from
participating in primary elections. That was only one of many pro
visions regulating such elections and is clearly treated as such in Briscoe
v. Boyle. The principle o f the supreme sovereignty of the State over
primaries, as against that of the political parties, remains unimpaired.
1928 elections after having participated in the Democratic
primary of that year. The Executive Committee sought
to justify its action on the basis of its inherent power to
manage the affairs of the party and to determine who could
present his name for nomination at a primary. The Su
preme Court of Texas issued the mandamus, holding that
the Executive Committee had no inherent power to exceed
any of the limitations for which the Legislature had pro
vided in Article 3107. The Court no doubt had in mind
the possibility that its decision might be used as a basis
for attacking the Executive Committee resolution barring
Negroes from primary elections, and expressly stated that
it was not passing on that question. The Court guardedly
referred to Article 3107 as a “ recognition” by the Legisla
ture of the right of the Democratic Party to create an
Executive Committee and to confer on it various discre
tionary powers concerning the regulation of primary elec
tions. The Court pointed out, however, that the Legis
lature had limited the scope of this “ recognition” by the
proviso at the end of Article 3107 and construed this
proviso to apply to the exclusion of candidates for nomina
tion because of any form of past disloyalty to the party.
Here again inherent power is shown to have dissolved
upon the application of State sovereignty.*
The improper application of this power by the Legis
lature did not take it from the field of sovereignty and
restore the inherent power of the party Executive Com
mittee. If this had been so there would have been no such
“ emergency and an imperative public necessity” referred
to in Chapter 67 of the Laws of 1927. Only the lack of
inherent power to exclude Negroes could have created this
emergency, just as only the legislative intention to confer
a statutory power could have led the Legislature to meet
the emergency in the way it did.
Furthermore, the enactment of Chapter 67 of the Laws
of 1927 would automatically deprive the Democratic Ex
* The Briscoe case was cited as authoritative by the Supreme Court
in the Love case.
2 0
ecutive Committee of any inherent power to bar Negroes
from its primary elections if such inherent power had not
already been terminated by virtue of the prior enactment.
This is true whether, as we contend, the statute is a direct
delegation of authority to prescribe qualifications discrim
inating against Negroes or whether it be a mere general
authority to prescribe the qualifications of voters at pri
mary elections delegated by the Legislature.
Under Briscoe v. Boyle and Love v. Wilcox, supra, it
would have been impossible for the inherent power to
survive the creation of the statutory power. The two
powers could not exist side by side, and as between them
the one conferred by statute must prevail.
“ Recognition” of Power Argument.
This would be equally true if Article 3107 is regarded
as a “ recognition” by the Legislature of the existence of
power on the part of the Democratic Party to prescribe
through its Executive Committee that only white Demo
crats shall vote at its primary elections. It could not
reasonably be construed as a recognition of inherent power
because, as we have shown, it was a very plain recognition
to the contrary. But even if it had purported to be such
a recognition, it would have been a recognition of a non-
existing fact, it being clear that no inherent power could
have existed after the State sovereignty had taken over
the field. If such a recognition could have any effect at
all, it would have to be ms a recognition that the power
once had existed and as a declaration of a legislative in
tention that it should once again come into existence.
Whether this be regarded as the creation of a new power
or the recognition and restoration of an old one, the exist
ence of the power itself would be necessarily and wholly
dependent upon the force of the statute and hence would
be a statutory power, not an inherent one.
Moreover, there is no reason why a legislative “ recogni
tion” even of an existing inherent power should not turn
27
the inherent power into a statutory one. That is precisely
what was held in Briscoe v. Boyle, where the various statu
tory provisions as to how primary elections should l>e
conducted admittedly conferred powers on the Democratic
Party and its Executive Committee, which up to the time
of the legislative action the party and the committee had
enjoyed under their general inherent power to manage
their own affairs. There is no material difference in form
or substance between these statutory provisions (all but
one of which are still in force to-day) and the new Article
3107. If the latter can be regarded as a “ recognition” of
inherent power, then all the provisions must l>e regarded
as such; and this very recognition by the Legislature of
powers, whose existence and exercise had been a purely
private internal affair of the Democratic Party, would
itself supply the only expression of legislative intention
which is needed under the decisions in Brisco v. Boyle
to turn the private affair into a State affair and to trans
form the inherent power into a statutory power.
Other Texas authorities are to the same effect.*
The Texas cases, with one exception, all confirm our
contention that the party executive committees are
agencies of the State, subject to legislative control and
endowed with powers by the Legislature. The exception
to this rule is White v. Lubbock (Tex. Civ. App., 1930),
30 S. W. (2d) 72, which involved the right of a Negro
to vote in a primary, and where the Court held that the
party had inherent power to exclude Negroes. This would
indicate that only where a Negro is concerned do the usual
rules of construction and the common principles of sub
stantive law fall down. But even were the bulk of the
Texas cases not in accord with the view here urged, it
would be of no importance, because it was recognized
by this Court in the Home Telephone & Telegraph case
that the local conception of State action may differ from
the national conception of State action. In that case it
* Clancy V. Clough, 30 S. W . (2d) 569, which held that membership
on a City Democratic Executive Committee was itself subject to statutory
qualifications which could not be added to by the Committee; Love v.
Taylor, 8 S. W . (2d) 795; Friberg v. Scurry, 33 S. W . (2d) 762.
2S
was urged that because the municipal body which had
fixed the telejdione rates had exceeded its authority no
State action was involved. This Court refused to accept
that view, holding, on the contrary, that the action was
State action, the rates confiscatory and that the Fourteenth
Amendment applied “to every person whether natural or
juridical who is the repository of State power.” The em
phasis, therefore, was not upon whether power was prop
erly applied, but upon whether State power in fact existed.
So here the holding of the State Court that political par
ties have inherent power to exclude Negroes from primary
elections, and in so acting were not exercising state powers,
is not binding upon this Court.
In conclusion, we submit that the Executive Committee
had no inherent power to adopt the resolution which pro
vided that only white Democrats could vote in the primary
election. The only power which the committee could have
had, it received from the Legislature of the State. The
Legislature by the new Article 3107 intended the commit
tee to adopt such a resolution as was adopted and the
committee acted with this specific statute in mind. Under
the Texas authorities, no other action by the committee
would have been possible. The action of the committee,
therefore, and the action of the Legislature are equally
in violation of the Fourteenth Amendment.
B. Even if the Democratic State Executive
Committee in adopting the resolution restricting
voting at Democratic primaries to “ white” Demo
crats exceeded the powers delegated to it by the
Legislature in Chapter 67, Laws o f 1927, its
action, though ultra vires, constituted State
action in violation o f the Fourteenth Am end
ment because it authorized and worked a classi
fication based on color.
Under the decisions of this Court in Home Tel. cC- Tel.
Co. v. Los Angeles, 227 U. S. 278, and the cases consistently
in accord therewith (Raymond v. Chicago Traction Co.,
207 U. S. 20; Fidelity d Deposit Co. v. Tafoya, 270 U. S.
426; cf. Yick Wo v. Hopkins, 118 U. S. 356), it has become
definitely established that the limitations which the Four
teenth and Fifteenth Amendments impose upon State ac
tion apply not merely to the enactment of legislation by
State Legislatures but also, among other things, to action
taken pursuant to such statutes by those selected to act
thereunder. We may have a statute which is itself subject
to no constitutional objection, and which authorizes alto
gether proper action to be taken by designated persons on
behalf of the State. Yet, if these persons disobey the
statute and take action thereunder which, if taken by the
State, would be violative of the Fourteenth or Fifteenth
Amendment, their action is State action, permitting those
injured thereby to seek redress therefor by suit or action
in a Federal court. As this Court has said in Home Tel.
it- Teh Co. v. Los Angeles, supra (pp. 286-287) :
“ the provisions of the (Fourteenth) Amendment as
conclusively fixed by previous decisions are generic
in their terms, are addressed, of course, to the
states, but also to every person whether natural or
juridical who is the repository of state power. By
this construction the reach of the Amendment is
shown to be coextensive with any exercise by a
state of power, in whatever form exerted * * *
where an officer or other representative of the state
in the exercise of the authority with which he is
clothed misuses the power possessed to do a wrong
forbidden by the Amendment, inquiry concerning
whether the state has authorized the wrong is
irrelevant and the Federal judicial power is com
petent to afford redress for the wrong by dealing
with the officer and the result of his exertion of
power.” (Black type Ola's.)
In view of the considerations advanced under Toint II,
subdivision A, supra, it is clear, we submit, that the Demo
cratic State Executive Committee falls precisely within
the foregoing decision so far as concerns its action in
adopting the resolution limiting voting at the primary
election of July 28, 1928, to white Democrats. If its action
in adopting the resolution was not authorized by Article
30
3107, it necessarily was an abuse of the power to deter
mine the qualifications of voters at primary elections which
the committee possessed under that statute. It nevertheless
was action to which the reach of the Fourteenth Amend
ment extended, and being action which denied to Negroes
the equal protection of the laws, it was action which was
forbidden by that Amendment and which therefore was
void, because in the Home Telephone <& Telegraph case this
Court recognized that although within the boundaries of
the State the action of a State agency might be ultra vires,
it might nevertheless, in this forum, be deemed State action
violative of the Fourteenth Amendment,
Nor, if it be assumed, as we have in this sub-point as
sumed, that the Executive Committee was not authorized
under the broad language of Article 3107 to determine
among other things, that only white Democrats may vote
at Democratic primary elections, can the Committee claim
that any such classification could rest upon its inherent
power. In making this assumption as to the scope of the
generic language in the present Article 3107 we are read
ing into it an implied limitation as to the scope of the
grant which it intended to confer upon the Executive
Committee. Certainly if an express limitation to this
effect were included in the Article, the Executive Com
mittee could hardly claim any inherent power to exceed it;
and there is no reason why an implied limitation should
not have the same effect once that implication is made.
This is conclusively covered by Love v. Wilcox, supra.
In that case the Supreme Court of Texas had before it
the limiting clause in the present Article 3107 which pre
cluded the operation of the general grant in Article 3107
as to the past loyalty of those who participated in the prior
primaries of the Democratic Party. Nowithstanding this
provision the Democratic State Executive Committee
sought to keep Love from becoming a candidate in the
Democratic primary because he had voted against the
party in the 1928 elections after having participated in
the party primary of that year. The Committee sought to
justify its action on the basis of its inherent power to
31
manage the affairs of the party and to determine who
could present his name for nomination at a primary.
The Supreme Court of Texas flatly held that the Execu
tive Committee had no inherent power to exceed any of
the limitations which the Legislature had provided for
in Article 3107. If, therefore, we read a limitation into
Article 3107 so that it is not regarded as covering such a
classification as made in the resolution, it follows from
Love v. Wilcox that the Executive Committee could under
no circumstances by virtue of any power of its own exceed
the limits which the Legislature had drawn. The Com
mittee could make no more claim to inherent power to
exceed this limitation than to exceed the limitation with
respect to past partly disloyalty so completely disposed
of in Love v. Wilcox. It follows therefore that even if
the present Article 3107 be assumed—contrary to the entire
legislative history of the Article— not to have authorized
the resolution, nevertheless the resolution could not be
based upon any inherent power of the Executive Com
mittee, but is referable only to the position in which the
Executive Committee was put by whatever grant of power
Article 3107 made to the Committee. This follows from
the doctrine of ultra vires use embodied in the Home Tel.
& Tel. Co. case. Under any construction therefore of
Article 3107 the classification in the resolution must be
deemed State action because the statute aloue has made
the resolution possible.
C. The Democratic State Executive Commit
tee, acting in relation to primary elections, was
part o f the governmental machinery o f the State.
The resolution o f that Committee restricting vot
ing in Democratic primaries to “ white” Demo
crats was State action and violated the Four
teenth Amendment and afforded respondents no
justification in denying to petitioner the right to
vote.
In the preceding points we have shown that although
the primary machinery was originally the private affair
32
of the party, it lias become absorbed by the State, which
has exercised its sovereignty over primary elections with
the “ rules and regulations laid down in minute and cum
bersome detail” (Briscoe v. Boyle, quoted supra, at pages
23-24).
Political parties now, in Texas at least, have become
State agencies in their relations to elections and primaries.
In “ Primary Elections” by Merriam & Overacker (192S
Edition), the authors state at page 140:
“ The theory of the party as a voluntary associa
tion has been completely overthrown by the con
trary doctrine that the party is in reality a govern
mental agency subject to legal regulations and con
trol.”
And see the able article by Meyer M. Brown in 23
Michigan Law Review, 279.
Bliley v. West, 42 F. (2d) 101, arose out of a similar
effort by the State of Virginia to disenfranchise Negroes
in the primary elections. There the statute described
voters as “ all persons qualified to vote at the election for
which the primary is held, and not disqualified by reason
of other requirements in the law of the party to which he
belongs” . The Democratic State Convention of 1924 in
Virginia adopted a resolution declaring that only white
persons should participate in the Democratic primary.
The action was brought for damages against the judges
of election who set up that resolution as a justification.
Defendants demurred and the District Court overruled
the demurrer in an opinion written by Judge Groner (33
F. [2d] 177). The case went to trial. Upon appeal from
the final judgment in favor of the plaintiff the Circuit
Court of Appeals for the Fourth Circuit affirmed the judg
ment, adopting the opinion of Judge Groner as its own.
Judge Groner cited the case of Commonwealth v. Will-
oox, 111 Va. S49, at page 859, in which the Court held that
a primary once adopted by a political party becomes and
constitutes a necessary part of the election machinery and
“ fulfils an essential function in the plea to promote
honesty in the conduct of elections—elections which shall
faithfully reflect and register the unbought will of the
elec tore.”
The primary machinery is therefore no longer the
peculiar province of the political party and the test of
the superior sovereignty of the State over that of the
party in relation to the function of the party in the pri
mary machinery is to be found in such cases as Love v.
Wilcox, supra, where the Supreme Court of Texas held
that Chapter 07 of the Laws of 1927 prohibited the party
executive committee from excluding a candidate from the
party primaries because of past disloyalty to the party
and could not be overridden by any action of the party
executive committee, Briscoe v. Boyle, supra, which de
cided that under the old Article 3107 the party could
not add to the qualifications fixed by the Legislature in
determining qualifications for party members, and Clancy
v. Clough (Tex.), 30 S. W. (2d) 569, where it was held
that the executive committee of the City of Houston was
without power to regulate the requisites for candidates
for membership on the executive committee itself on the
ground that Articles 3110 and 3111 of the Revised Civil
Statutes completely covered the field of qualifications.
In other words, those cases hold that the party com
mittees are so much controlled by State authority that
they are without power to vary on their own initiative the
qualifications prescribed for voters, candidates or commit
tee members.
It must be clear, then, that whether or not the Legis
lature intended by Chapter 67 of the Laws of 1927 to vest
in the State Executive Committee the power to exclude
Negroes from Democratic primaries, the Legislature
adopted the executive committee as its agency in the
administration of the primary laws.*
* The very existence of such bodies as the County and State Execu
tive Committees depends upon the statutes. Articles 3100, 3118 and 3139
(Tex. Rev. Civ. Stats. 1925) deal with who shall choose these bodies
and how that shall be done. And these bodies are created by the statute
to perform the manifold duties which are minutely prescribed in nearly
each one of the approximately 70 sections which comprise the primary
law (Chap. 13, ibid.) of the State of Texas. Thus this Committee and
their powers and duties are created as parts of the entire primary
machinery.
34
It follows as an elementary proposition that the State
cannot perform by an agency an act which it could not
accomplish in its own name, that it cannot give force
of law to a prohibited enactment, from whatever source
originating.
Williams v. Bruffy, 96 U. S. 176.
Ford v. Bur get, 97 U. S. 594.
King Mfg. Co. v. Augusta, 277 U. S. 100, 107-114.
Home Tel. <G Tel. Co. v. Los Angeles, 227 U. S.
278.
In Standard Beale Co. v. Farrell, 249 U. S. 571, at page
577, Mr. Justice Brandeis said:
“ * * * For the protection of the Federal Con
stitution applies, whatever the form in which the
legislative power of the State is exerted; that is,
whether it be by a constitution, an act of the legis
lature, or an act of any subordinate instrumentality
of the State exercising delegated legislative author
ity, like an ordinance of a municipality or an order
of a commission.”
The resolution whieli was adopted by the Democratic
State Executive Committee restricting the primaries to
white Democrats is therefore within the same prohibition
of the Fourteenth Amendment as would have been a direct
legislative enactment to this effect.
Nor does such a case as Waples v. Maarrast, 108 Tex.
5, 184 S. W. 180, holding that a political party is not
an agency of the government of Texas and hence it
was unconstitutional for the Legislature to attempt to
provide for the expense of a primary election out of the
State treasury, detract from the conclusion just stated.
Political parties and primary elections may be deemed
cogs in the State election machinery for some purposes
and not for other purposes.*
* Compare Briscoe v. Boyle, supra, and State ex rel. Moore v. Meharg
(Tex. Civ. App., 1926), 287 S. W . 670, with the Waples and White cases,
supra.
Moreover, it was recognized in the Home Telephone t€
Telegraph case that the local conception of State action
may differ from the national conception of State action.
D. Respondents by reason o f their office as
judges of election derived their power to deny
the petitioner the right to vote at the primary
election from the statutes o f the State. In
applying that power to a State purpose in such
a way as to work a color classification they
violated the Fourteenth Amendment irrespec
tive o f Chapter 67 o f the Laws o f 1927 and the
resolution o f the Democratic State Executive
Committee.
The opinion of the District Court states that (R. 25) :
“The Court also holds that the members of a vol
untary association, such as a political organization,
members of the Democratic party in Texas, possess
inherent power to prescribe qualifications regulat
ing membership of such organization, or political
party. That this is, and was, true without reference
to the passage by the Legislature of the State of
Texas of said Art. 3107, and is not affected by the
passage of said act, and such inherent power re
mains and exists just as if said act had never been
passed.”
That this holding is diametrically opposed to the deci
sions of the Texas courts in Briscoe v. Boyle, supra, and
in Love v. Wilcox, supra, has already been demonstrated
(see pp. 23-26, supra). But assuming, for the sake of
argument, that the holding were correct, and assuming
even that the action of the State Executive Committee
was not State action within the meaning and application
of the Fourteenth Amendment, it still would not follow
that the action of the defendants complained of in the case
at bar also was not State action in violation of that
Amendment. This litigation is not brought against the
members of the Executive Committee because of their ac
tion in adopting the resolution barring Negroes from the
primary election of July 28, 1928. It is brought against
the judges of election, who—whether they be deemed State
officials, party officials or the representatives of the con
tending candidates who contribute to their remuneration—
are clothed with the power to act in the capacity of judges
of election at primary elections by the State itself.
Though their designation may come from the party, their
powers flow from the State alone and their function as
judges of election is to accomplish a State purpose.
The Texas Legislature has with meticulous care pro
vided for the time, place and manner of holding primary
elections and of determining and contesting the results.
Primary elections are themselves compulsory, under the
Texas statutes, for all parties which cast more than 100,000
votes at the last general election (1925 Tex. Rev. Civ.
Stats., Elections, Art. 3101). Actually, this provision
always has applied and now does apply only to the Demo
cratic Party, because it alone has been able to muster the
requisite number of votes. The time, place and manner of
holding primary elections, as wel 1 as of determining and
contesting the results thereof, are comprehensively and
minutely prescribed by statutory provisions (1925 Tex.
Rev. Civ. Stats., Elections, xlrts. 3102-3105, 3108, 3109-
3114, 3116-3117, 3120, 3122-3127, 3146-3153).
Authority Vested in Judges of Election.
Among these provisions are the ones which provide for
the appointment of judges of election (Art. 3104) and
prescribe their functions, powers and duties (Arts. 3105,
3006-3007). These include, among others, the following
(Art. 3105) :
“ Judges of primary elections have the authority,
and it shall be their duty, to administer oaths, to
37
preserve order at the election, to appoint special
officers to enforce the observance of order and to
make arrests, as judges of general elections are
authorized and required to do. Such judges and
officers shall compel the observance of the law that
prohibits loitering or electioneering within one hun
dred feet of the entrance of the polling place, and
shall arrest, or cause to be arrested, anyone engaged
in the work of conveying voters to the polls in car
riages or other mode of conveyance, except as per
mitted by this title.”
The power “ to administer oaths * * * as judges of
general elections are authorized and required to do” em
braces, above all others, a power to administer such oaths
for the purposes of ascertaining the qualifications of a
challenged voter. It is for this purpose, indeed, that the
power to administer oaths is conferred upon judges of
election. Article 300G provides:
“When a person offering to vote shall be objected
to by an election judge or a supervisor or chal
lenger, the presiding judge shall examine him upon
an oath touching the points of such objection, and,
if such person fails to establish his right to vote to
the satisfaction of the majority of the judges, he
shall not vote.”
The powers of judges of primary elections to preserve
order, appoint special officers, enforce the observance of
order and make arrests “as judges of general elections are
authorized and required to do,” as provided in Article
3105, refer to Article 3002, which for these purposes gives
the presiding judge of elections “the power of the district
judge to enforce order and keep the peace.” This is clearly
a State judicial power.
Article 2954 specifies the persons who are not allowed
to vote. These include infants, idiots, lunatics, paupers,
.38
find tlie like. They do not include Negroes, as such. Arti
cle 2955 then specifies the persons who are allowed to vote.*
In Title Six, Chapter Four, of the Texas Penal Code
of 1925, relating to “ Offenses Affecting the Right of Suf
frage,” f it is provided in Article 217 as follows:
“Refusing to permit voter to vote. Any judge of
any election who shall refuse to receive the vote of
any qualified elector who, when his vote is objected
to, shows by his own oath that he is entitled to vote,
or who shall refuse to deliver an official ballot to
one entitled to vote under the law, or who shall
wilfully refuse to receive a ballot after one entitled
to vote has legally folded and returned same, shall
be fined not to exceed five hundred dollars.”
Article 231 makes Article 217 specifically applicable to
primary elections.
* “Qualifications for voting.— Every person subject to none of the fore
going disqualifications who shall have attained the age of twenty-one years
and who shall be a citizen of the United States, and who shall have resided
in this State one year next preceding an election, and the last six months
within the district or county in which he or she offers to vote, shall be
deemed a qualified elector. The electors living in an unorganized county
may vote at an election precinct in the county to which such county is
attached for judicial purposes; provided that any voter who is subject to
pay a poll tax under the laws of this State or ordinances of any city or
town in this State, shall have paid said tax before offering to vote at any
election in this State and holds a receipt showing that said poll tax was
paid before the first day of February next preceding such election; and,
if said voter is exempt from paying a poll tax and resides in a city of
ten thousand inhabitants or more, he or she must procure a certificate
showing his or her exemptions, as required by this title. If such voter
shall have lost or misplaced said tax receipt, he or she shall be entitled to
vote upon making and leaving with the judge of the election an affidavit
that such tax was paid by him or her, or by his wife or by her husband
before said first day of February next preceding such election at which he
or she offers to vote, and that said receipt has been lost or misplaced.
In any election held only in a subdivision of a county for the purpose of
determining any local question or proposition affecting only such subdivi
sion of the county, then in addition to the foregoing qualifications, the
voter must have resided in said county for six months next preceding
such election. The provisions of this article as to casting ballots shall
apply to all elections including general, special and primary elections.”
(Italics ours.)
t Article 218 provides for a fine against a judge o f election who tries
to influence a voter “where an election, either primary, special or general,
is being held,” and other penal provisions apply to improperly opening the
ballot (Art. 221), divulging a vote (Art. 222), interfering with the ballot
(Art. 226), making a false canvass (Art. 227), false certification by the
chairman (Art. 228), giving false certificate of election (Art. 229), wil
fully failing or refusing to discharge his duty (Art. 230).
Thus it appears that even if these respondents be not
State officers in the same category and to the same extent
as the Governor or the Attorney General of the State,
they are nevertheless quasi public officials, receiving the
definition of their duties and the badge of their authority
from the statutes of the State, and the Legislature has by
its own edicts given to judges of primary elections the
powers and duties of judges of general elections and sub
jected them to the same penalties applicable to judges of
general elections.
It requires no extended argument to demonstrate that
the conduct of primary elections is, when authorized by
statute, a State function, pointed to achieving a fair ex
pression of popular, sovereign will, and that the judges of
election acting in their capacities as judges of primary
elections are fulfilling a State purpose.
Consequences of Abuse of Powers.
It seems apparent, from the foregoing resume of the
Texas Election Laws, that the defendants, as judges of
election were charged by the State of Texas with the func
tion and duty of determining the plaintiff’s qualifications,
under the Texas laws, to vote at the primary election in
question in the case at bar. It is equally apparent that
in passing on those qualifications and in determining that
the plaintiff did not meet them because he was a Negro,
the defendants were improperly administering the powers
and duties specifically conferred upon them, and upon
them alone, by the State of Texas, for the purpose of en
folding, on behalf of that State, the laws which it had
enacted with respect to the conduct of primary elections.
We submit, therefore, that the contention of the defend
ants that the wrong which they did the plaintiff in de
priving him of his right to vote at the primary election
over which they officiated, was not a wrong forbidden by
the Fourteenth or Fifteenth Amendments, because those
Amendments apply only to State and not to individual
action, is wholly without merit. We have here the plainest
40
possible instance of a case “where,” in the language of
Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278, 287,
“an officer or other representative of a state in the exercise
of the authority with which he is clothed misuses the power
possessed to do a wrong forbidden by the Amendment,”
and, hence, where the misuse of this poAver itself supplies
the requisite element of State action in the case at bar and
eliminates the only possibility of differentiating it from
Nixon v. Herndon.
It should be noted that the emphasis in the Home Tel.
cG Tel. Co. case is placed, not upon the official title of the
actor, but upon the vesting in him of State power, viz.,
power granted by the State devoted to a State purpose.
This is made clear from further quotations from the opin
ion of Mr. Chief Justice White at pages 287 et seq., AA'here
he says, speaking of the Fourteenth Amendment:
“ It provides, therefore, for a case where one who
is in possession o f state pow er uses that poAver to
the doing o f the w rongs Avhich the A m endm ent for
bids even although the consum m ation o f the w rong
m ay not be Avithin the poAvers possessed if the com
m ission o f the Avrong itself is rendered possible or
is efficiently aided by the state authority lodged in
the wrongdoer. T h at is to say, the theory of the
Am endm ent is th at Avhere an officer or other repre
sentative of a State in the exercise of the authority
Avith which he is clothed m isuses the pow er pos
sessed to do a w rong forbidden by the Am endm ent,
inquiry concerning Avhether the S tate has author
ized the Avrong is irrelevant and the F ederal ju d i
cial poAver is com petent to afford redress for the
w rong by dealing w ith the officer and the result of
his exertion o f poAver.”
It was then pointed out that the Amendment, in looking
to the enforcement of rights Avhich it guaranteed and to
the prevention of wrongs Avhich it prohibited, did not pro
ceed only upon the assumption that States acting in their
governmental capacities “ in a complete sense” may violate
the provisions of the Amendment, but “ which Avas more
normally to be contemplated, that State poAvers might be
41
abused by those who possessed them and as a result might
be used as the instrument for doing wrongs” and that the
Amendment provided against this contingency. And again,
at page 288, he said:
“Under these circumstances it may not be doubted
that where a state officer under an assertion of
power from the State is doing an act which could
only be done upon the predicate that there was such
power, the inquiry as to the repugnancy of the act
to the Fourteenth Amendment cannot be avoided by
insisting that there is a want of power. * * * To
repeat, for the purpose of enforcing the rights guar
anteed by the Amendment when it is alleged that
a state officer in virtue of state power is doing an
act which if permitted to be done prime facie would
violate the Amendment, the subject must be tested
by assuming that the officer possessed power if the
act be one which there uyould not be opportunity to
perform but for the possession of some state au
t h o r i t y (Italics ours.)
Applying that test to this case, it is clear that the
respondents would not have had the opportunity to refuse
to permit the petitioner to vote in the Democratic Party
primary election if they had not become possessed of the
power to act as judges of election through act of the Legis
lature of the State.
In Yick Wo v. Hopkins, 118 U. S. 356, it was held that
an ordinance violates the Fourteenth Amendment if it
confers upon municipal authorities arbitrary power at
their own will and without regard to discretion in the
legal sense of the term to give or withhold consent as to
persons or places for the carrying on of a business, and
that an administration of such an ordinance violates the
provisions of the Fourteenth Amendment if it makes arbi
trary and unjust discriminations founded on differences
of race between persons otherwise in similar circum
stances. This Court pointed to “ the political franchise of
voting” as one of the illustrations of the principle that a
man should not be compelled to hold his life or means of
42
living or any material right essential to the enjoyment
of life at the mere will of another. The Court said, at
page 370:
“ Though not regarded strictly as a natural right,
but as a privilege merely conceded by society ac
cording to its will, under certain conditions, never
theless it is regarded as a fundamental political
right, because preservative of all rights.”
Mr. Justice Matthews said, at page 373:
“In the present cases we are not obliged to reason
from the probable to the actual, and pass upon the
validity of the ordinances complained of, as tried
merely by the opportunities which their terms af
ford, of unequal and unjust discrimination in their
administration. For the cases present the ordi
nances in actual operation, and the facts shown
establish an administration directed so exclusively
against a particular class of persons as to warrant
and require the conclusion, that, whatever may have
been the intent of the ordinances as adopted, they
are applied by the public authorities charged with
their administration, and thus representing the
State itself, with a mind so unequal and oppressive
as to amount to a practical denial by the State of
the equal protection of the laws which is secured
to the petitioners, as to all persons, by the broad
and benign provisions of the Fourteenth Amendment
to the Constitution of the United States. Though
the law itself be fair on its face and impartial in
appearance, yet, if it is applied and administei*ed
by public authority with an evil eye and an un
equal hand, so as practically to make unjust and
illegal discriminations between persons in similar
circumstances, material to their rights, the denial
of equal justice is still within the prohibition of the
Constitution. This principle of interpretation has
been sanctioned by this court in Henderson v.
Mayor of New York, 92 U. S. 259; Chy Lung v.
Freeman, 92 U. S. 275; Ex parte Virginia, 100 U. S.
339; Neal v. Delaware, 103 U. S. 370; and Soon
Ring v. Crowley, 113 U. S. 703.” (Black type
ours.)
43
Expenses of Primary Election.
It is suggested in the opinion of the District Court (R.
24), and again in the opinion of the Circuit Court of
Appeals (R. 30), that in view of the fact that the respond
ents were paid for the services which they rendered as
judges of election out of a fund derived from contributions
by the participating candidates, they could not be acting
as officers of the State of Texas. The source of remunera
tion is never determinative as to the status or official
capacity of a person. There is no end of cases sustaining
this proposition.* See:
Turney v. Ohio, 273 U. S. 510;
Kimbrough v. Barnett, 93 Tex. 301, 55 S. W. 120;
Hendricks v. The State, 20 Tex. Civ. App. 178,
49 S. W. 705;
Willis v. Owen, 43 Tex. 41;
Lincoln v. Hapgood, 11 Mass. 350.
Nor is it material that the County Executive Commit
tee of the party appoints the judges of primary elections.
These appointments are made solely by reason of express
statutory authority (Art. 3104, Tex. Rev. Cov. Stats.,
1925), and membership on the County Executive Commit
tee is itself subject to the sovereign will of the State as
expressed in Article 3107. To this effect is Clancy v.
Clough, supra.
If, therefore, these judges of election have abused their
powers derived from the State and have used them “as the
instrument of doing wrong,” their actions are State ac
tions. The classification by reason of color is forbidden
to the State by the Fourteenth and Fifteenth Amendments
and this prohibition is controlling not only in so far as
the legislative action is concerned, but also applies to
anyone acting under authority lodged in him by the State.
* Cases are collected in exhaustive note in 53 A . L. R. 595. See also
72 U. of Pa. Law Rev., p. 222, Note 9 ; 15 Cornell Law Quar. 267.
-14
To reduce the Democratic primary election to the status
of a purely private election akin to the election of the
officers of the Klu Klux Klan, or of any other private
lodge, league or “voluntary association,” it would be neces
sary to view the situation not merely without reference to
Article 3107 but also without reference to all of the other
statutory provisions which have just been considered. This
it is improper to do unless the Texas Legislature was
without power to enact these provisions. Such a conten
tion has not been made, and need not be considered, the
existence of the requisite legislative power being too clear
for argument.
It also hardly requires argument to establish that the
defendants’ statutory duties as officers or representatives
of the State of Texas could not possibly be justified or
affected by the purely private action of a political party
any more than by the action of any private lodge or volun
tary association which might presume to interfere with
the conduct of primary elections in Texas. Powers and
duties provided for by statute can be abrogated or changed
only by or pursuant to statute, and private resolutions by
private parties cannot justify abuses of such powers com
mitted by those who are entrusted with their execution, as
were these respondents.
In conclusion, we submit that on every reasonable alter
native, we necessarily have the situation of a deprivation
of the plaintiff’s right not to be discriminated against at
the polls by reason of his color; we have a lack of justifica
tion ; and we have the fact that this unjustified deprivation
was made possible only by the patent of authority with
which the State has invested these respondents. We have,
therefore, precisely the situation which, in Nixon v. Hern
don, was held to support both a cause of action for dam
ages and the existence of Federal jurisdiction.
45
III.
The right of petitioner to vote in the primary re
gardless of race or color was denied and abridged
by the State of Texas, in violation of the Fifteenth
Amendment.
In Nixon v. Herndon, supra, it was deemed unnecessary
to consider the Fifteenth Amendment, because it seemed
to this Court hard to imagine a more direct and obvious
infringement of the Fourteenth, and while we believe that
the Fourteenth Amendment is fully applicable to the
present case, the Fifteenth Amendment likewise protects
the petitioner.
It was determined in Nixon v. Herndon that the same
reasons which allowed a recovery for denying the plaintiff
a vote at a final election allowed it for denying a vote at
a primary election that may determine the final result.
It follows that if the denial of petitioner’s right to vote
violated the Fifteenth Amendment, he has an equally valid
cause of action.
The petitioner’s right to vote in this case was denied or
abridged, if at all, “on account of race or color” (R. 3),
and the denial or abridgment of this right was the direct
result of action by the State of Texas. The same argu
ments with respect to State action contained in Point II
supra, and addressed to the Fourteenth Amendment, are
equally applicable to the Fifteenth.
A Primary Vote Is a Vote.
The question now to be considered is whether the peti
tioner’s right to vote was denied or abridged by reason of
the refusal of the respondents to permit him to vote at a
primary election. In other words, is a vote at a. primary
election a vote within the intendment of the Fifteenth
Amendment?
The Secretary of State proclaimed the Fifteenth Amend
ment to have been duly ratified on March 30, 1870. Section
40
31 of Title 8 of the United States Code (supra, p. 10) was
adopted by Act of May 31, 1870 (Chap. 114, Sec. 1; 17
Stat. 40), and evidences a contemporaneous interpretation
of the Fifteenth Amendment which applies the right to
vote to “ any election” by the people in a State or any
subdivision.
The right to vote was certainly not then intended to be
narrowly construed, because, as Mr. Justice Hunt said in
United States v. Reese, 92 U. S. 214, “It was believed that
the newly enfranchised people could be most effectually
secured in the protection of their rights of life, liberty and
pursuit of happiness, by giving them the greatest of rights
among free men—the ballot. Hence the Fifteenth Amend
ment was passed by Congress and adopted by the States.”
At this point it is well to indicate that the real issue is
not whether a primary election is an election, but whether
a vote at such an election is a vote contemplated by the
Fifteenth Amendment. This distinction is of importance
in a consideration of some of the cases on this subject.
“Vote” is defined in Bouvier’s Laic Dictionary as “suf
frage; the voice of an individual in making a choice by
many.”
In Funk & Way nail’s Standard Dictionary it is defined
as “ 1. A formal expression of will or opinion in regard
to some question submitted for decision, as in electing
officers, sanctioning laws, passing resolutions, etc.: com
monly signified by the voice or by ballot, by a show of
hands, or by rising to one’s feet. * * * ”
The word “vote” is used throughout the Texas Election
Laws in its usual sense, and there is no distinction to be
found in the use of the word in connection with primary
or general elections. Article 3107 itself makes use of the
expression, and unless the contrary is clearly shown, it
must be deemed that the Legislature intended there to
use “ vote" in the same manner as it did in other parts of
the statute.
In the light of Article 23G of the Texas Penal Code of
1925, it is difficult to see how any different definition can
47
be given to voting at a primary and voting at a general
election. That article reads:
“Illegal voting at primary.—Any person voting
at any primary election called and held by author
ity of any political party for the purpose of nomi
nating candidates of such political party for any
public office who is not entitled to vote in the elec
tion precinct where he offers to vote at the next
State, county or municipal election, or who shall
vote more than once at the same or different pre
cinct or polls on the same day, or different days in
the same primary election, shall be fined not ex
ceeding five hundred dollars, or be imprisoned in
jail not exceeding sixty days, or both.” *
Article 241 of the Penal Code provides that “ whoever at
a general, special or primary election votes or attempts to
vote more than once shall be fined * * Again, Article
216 of the Penal Code: “Any judge of an election or pri
mary who wilfully permits a person to vote, whose name
does not appear on the list of certified voters of the pre
cinct * * * ” is subject to fine. And Article 3121 of the
Texan Revised Civil Statutes of 1025 provides that the
county tax collector shall deliver to the chairman of the
county executive committee of each political party, for its
use in primary elections, certified lists of qualified voters
before the polls are open. That article further provides:
“No primary election shall be legal, unless such
list is obtained and used for reference during the
election. Opposite the name of every voter on said
list shall be stamped, when his vote is cast, with a
rubber or wooden stamp, or written with pen and
ink, the words, ‘primary—voted,’ with the date of
such primary under the same.” (Black type ours.)
The whole tenor of the primary laws of Texas is to
protect the expression of the sovereign will of the people
in nominating candidates, just as do the laws dealing with
general elections (Love v. Wilcox, supra). The reason
that this must be so is obvious. The primary election
* Compare Article 232, entitled “ Illegal voting.”
48
involves the initial and as we shall see, in Texas, the
determinative choice of the officers of the government.
Would it not be absurd, then, to regard the primary elec
tion as that of a private association, such as an election
of a lodge or other social or business organization?
The Democratic primary is not essentially concerned
with the choice of officers of the Democratic Party. Its
concern is with the staff of government. It does not in
volve the issues of a private association, but the expression
of the voice of the people in an affair of state.
While it is true that all of the voters at the final election
are not eligible to vote at a primary election, this is not
because of lack of power on the part of the voter. The
only obstacles, other than race and color, are the pledge
which Article 3110 requires him to make in good con
science that he will support the nominee of the primary
at which he votes,* and Article 240 of the Penal Code,
which forbids voting in the primary of more than one
party.
This definition or classification of voters on the basis of
their principles and the dictates of their consciences is
quite another thing from a restraint upon voting based
upon race or color. It is a provision, in the words of Mr.
Justice Holmes in Commonwealth v. Rogers, 63 N. E. 421
(Mass.), adopted as a “precaution against the fraudulent
intrusion of members of a different party for sinister pur
poses.” In other words, the election laws grant the right
of the citizen to express his sovereign will by his vote
within broad classifications and aim to secure and protect
that right.
Fifteenth Amendment Like Nineteenth.
If it were true that the right to vote guaranteed by the
Fifteenth Amendment did not extend to primary elec
tions, then the same would be true of the Nineteenth
Amendment, which in identical words guarantees the right
to vote without regard to sex. Surely no court would
* Wcstcrman v. Mimms, 220 S. W . 178 (Texas) ; Briscoe v. Boyle,
supra.
40
hold that a woman could be denied the right to vote at
a primary merely because she was a woman. There is
no distinction to be drawn between the two Amendments.
The Fifteenth has been frequently held to be self-executing
(Neal v. Delaware, 103 U. S. 370, 389; Ex parte Yarbrough,
110 U. S. 651, 665). And even were it not self-executing,
Section 31, Title 8 of the United States Code expresses in
statutory form what the Amendment contemplated, to wit,
to eliminate forever from the classification of voters any
limitation based on race or color, such as deprived this
petitioner of his vote.
Historical Error.
Nor is the suggestion of the District Court (K. 20),
that primary elections were unknown at the time of the
adoption of the Fifteenth Amendment sound, nor does it
serve to distinguish that Amendment from the Nineteenth
Amendment. The Fifteenth Amendment was adopted in
1870. On March 26,1866, California passed an Act (Chap.
359) regulating primaries, and on April 24, 1866, New
York passed an Act (Chap. 783) also dealing with pri
maries.* And in 1868 the Union League Club of Phila
delphia offered a prize to anyone who would suggest the
best plan by which to overcome the evils of the primary
system, f
Shortly on the heels of the passage of the Amendment
came primary legislation in other States. In 1871 Ohio
and Pennsylvania followed the example set by New York
and California. In 1873 Nevada followed suit and in 1875
Missouri passed regulatory measures (Merriam & Over-
acker, supra, p. 12). These statutes were so widespread
throughout the country as to reveal a general knowledge
of the primary as a method of nomination at the time of
the adoption of the Fifteenth Amendment.
* See Merriam & Overacker, supra, pp. 8-12; Sargent on Law of
Primary Elections, 2 Minn. Law Rev. 97.
f Union League Club of Philadelphia, “Essays on Politics,” 1868.
The Newberry and Other Cases Distinguished.
The respondents and the District Court (R. 26) placed
reliance on the decision of this Court in 'Newberry v.
United States, 256 U. S. 282, which involved the constitu
tionality of Section. 8 of the Federal Corrupt Practices
Act, which undertook to limit the amount of money which
a candidate for Representative in Congress or for United
States Senator might contribute or cause to be contributed
in procuring his nomination or election. In so far as it
applied to a primary election of candidates for a seat in
the Senate, the Fifteenth Amendment was in no way in
volved.
The meaning of the phrase “ the right to vote” was not
and could not have been considered, since there had been
no denial or abridgment of that right on account of race,
color, previous condition of servitude, or of sex. The sole
constitutional question involved concerned the interpreta
tion to be given to Article 1, Section 4, of the Constitution,
which provides:
“The times, places and manner of holding elec
tions for senators and representatives, shall be pre
scribed in each State by the Legislature thereof;
but the Congress may at any time by law make
or alter such regulations, except as to the places
of choosing Senators.”
The question, therefore, was whether the limited right
to deal with “the times, places and manner of holding-
elections” involved the right to regulate the use of money
in connection with the primary election of candidates for
the Senate and House of Representatives.
It was held that an undefined power in Congress over
elections of Senators and Representatives not derived from
Article I, Section 4, could not be inferred from the fact
that the offices were created by the Constitution or by
assuming that the Government must be free from any
control by the States over matters affecting the choice of
its officers. It was further held that the elections within
the original intendment of Section 4 of Article I were
those wherein Senators should be chosen by Legislatures
and Representatives by voters “possessing the qualifica
tions requisite for electors of the most numerous branch
of the state legislature.”
It was likewise held that the Seventeenth Amendment
did not modify Article I, Section 4, which was the source
of congressional power to regulate the times, places and
manner of holding elections; and, finally, that the power
to control party primaries for designating candidates for
the Senate was not “within the grant of power to regulate
the manner of holding elections.”
The “ right to vote” is infinitely more comprehensive in
its meaning, scope and operation than is the reference to
the “manner of holding elections for senators and repre
sentatives,” which was under consideration in Newberry
v. United States.
Moreover, in that case Justices McReynolds, Holmes,
Hay and Yandevanter voted for reversal on the constitu
tional ground, while Mr. Chief Justice White, differing
on the constitutional question, voted for a reversal and a
new trial because of an error in the charge to the jury,
and Justices Pitney, Brandeis and Clarke, likewise finding
error in the instructions to the jury, were of the opinion
that the Act itself was valid. Mr. Justice McKenna con
curred in the opinion of Mr. Justice McReynolds “as
applied to the statute under consideration, which was
enacted prior to the Seventeenth Amendment, but reserved
the question of the power of Congress under that Amend
ment.”
It is clear from a reading of the opinions in the 'New
berry case that the principal issue was that of the
sovereignty of the States as against the sovereignty of
the Federal Government. The question was treated from
the point of view of these contending sovereignties in their
relation to the candidates. No consideration icas given
to the right of the citizen to vote, and consequently the
decision is no more relevant here on the question of the
right to vote under the Fifteenth Amendment than it was
in Nixon v. Herndon on the right to bring a cause of action
for the denial of a vote by means of unconstitutional
classification.
To say, as did this Court in the Newberry case (p. 250),
that primaries are “ in no sense elections for an office but
merely methods by which the party adherents agree upon
candidates whom they intend to offer and support for
ultimate choice by all qualified voters,” does not dispose
of the basic questions here, which are (1) whether a color
classification shall enter into a definition of “party ad
herents” and (2) whether the method of agreement upon
candidates to be offered and supported is a vote within
the meaning of the Fifteenth Amendment.
Koy v. Schneider, 110 Tex. 369, likewise has no bearing
on this case. There the word “ elections” in the Constitu
tion of the State of Texas was held not to include pri
maries. The case involved the Women’s Suffrage Act of
Texas enacted before the Nineteenth Amendment and
which purported to give women the right to vote in a
primary. The Constitution restricted suffrage in “ elec
tions” to men, and the Court, in order to permit women
to vote in primaries under the statute, adopted a con
struction of the word “elections” contained in the Consti
tution which limited its application to general elections.
Here, again, the question at issue was not a definition of
the right to vote but of the meaning of an election, and
the Court must have been influenced by the relative im
portance of primary elections over general elections.
On the other hand, in Ashford v. Goodwin, 103 Tex. 491,
and Anderson v. Ash, 62 Tex. Civ. App. 262, it was held
that the words “contested elections” applied to primaries
as well as general elections and that consequently the
District Courts had jurisdiction under the Constitution
to consider a contest arising out of a primary election.
Even if it could be said that the refusal to permit the
petitioner to vote at the primary election was not a denial
of his right to vote, because he could still express his will
at the general election, nevertheless his right to vote would
have been abridged.
In States such as Texas, where the primary election is
in a realistic sense the only true election, the vote at the
final election is merely a formal flourish. The courts of
Texas have taken judicial notice of the fact that for all
practical purposes, and certainly in so far as State elec
tions are concerned, there is only one political party, and
that the real political battles of the State are not those
held at the final election, but those waged for nomination
at the Democratic primaries.*
So in Ex rel. Moore v. Meharg (Tex. Civ. App. 192G),
287 S. W. 670, the Court said:
“ Indeed it is a matter of common knowledge in
this State that a Democratic primary election held
in accordance with our statutes is virtually decisive
of the question as to who shall be elected at the
general election. In other words, barring certain
exceptions, a primary election is equivalent to a
general election.” (Black type ours.)
In an article by Meyer M. Brown in 23 Michigan Law
Review, 279, the author says:
“ In Texas a victory in a primary on the Demo
cratic side means practically certain election.”
Petitioner’s Right to Vote Abridged Even If Not Denied.
* In 1930, Sterling, Democrat, defeated Talbot, Republican, by a plur
ality of 124,000 for Governor. In 1926, Moody, Democrat, defeated Haines,
Republican, by 233,068 to 31,531. In 1924, Mrs. Ferguson, Democrat, beat
Butte, Republican, 422,059 to 298,046 for Governor. In 1928, when the
State of Texas went Republican for President, Connally, Democrat, de
feated Kennerly, Republican, 566,139 to 129,910 for United States Senator
(W orld Almanac, 1931, p. 904).
And in Newberry v. United States, supra, Mr. Justice
White said, id pages 266-2(17:
“The large number of States which at tins day
have )>v law established senatorial primaries shows
the development of the movement which originated
so long ago under the circumstances just stated.
They serve to indicate the tenacity of the conviction
that the relation of the primary to the election is so
intimate that the influence of the former is largely
determinative of the latter. I have appended in the
margin a statement from a publication on the sub
ject, showing how well founded this conviction is
and how it has come to pass that in some cases at
least the result of the primary has been in substance
to render the subsequent election merely perfunc
tory.” (Black type ours.)
The publication referred to by Mr. Justice White as in
the margin is Merriam on Primary Elections (1908 Ed.,
])]>. 83-85), where it is said:
“ In many western and southern states the direct
primary method has been applied to the choice of
United States senators as well as to state officers.
In the southern states, victory in such a primary,
on the Democratic side, is practically the equivalent
of an election, as there is but one effective party in
that section of the country.”
5-1
And so, too, in Kay v. Schneider, supra, Chief Justice
Phillips said:
“No court can blind its eyes to this universally
known fact. * * * Of what use is it to enforce
the Constitution only in general elections, when, in
fact, the primary elections are the decisive elections
in this State in the choosing of public officers.”
Consequently only by the most tortuous sophistry can
it Ik- said that in denying the Negro the right to vote in
the Democratic primaries of Texas and relegating him to
the general election, his right to vote is neither denied nor
abridged.
The rationale of the very attempt of Legislatures to
control primaries must be that the citizen’s right to vote
in the final election would be abridged if a manipulation
of primaries could in effect nullify the free expression of
the voter’s will at the general election.
Nor is it a valid answer to say that though the Negro
is denied the right to vote in a Democratic primary he
could still vote at a Republican primary. In the first
place, under Chapter G7 of the Laws of 1927, the Republi
can State Executive Committee could adopt a resolution
similar to that which was passed by the Democratic Com
mittee. Secondly, to deprive him of his right to select
between existing parties, even if not in violation of the
Fifteenth Amendment, would be clearly a violation of the
Fourteenth Amendment as an invalid classification which
permits the white voter to take full advantage of the choice
given under Article 3110 and deprives a colored man of
a similar right to determine with what party in good con
science he should ally himself. Thirdly, as we have seen,
it is idle to refer a man to the Republican Party in the
State of Texas when the Democratic Party is the “ one
effective party in that section of the country” and the
general election is “merely perfunctory.”
IV.
Conclusion.
From what has been said it is clear that the State has,
either by overt act of its Legislature or through the agency
of the Democratic State Executive Committee or the
judges of election, made a classification, based upon race
and color, which has denied the petitioner the right to
vote in a primary election. This was only made possible
by the action of the State— either its direct action or its
withdrawal of restraint or its grant of power to persons
who could not have acted but for the grant of power.
This classification lias not only worked a denial of the
equal protection of the laws solely by reason of the peti
tioner's race and color, but it lias in a very real sense
deprived him of bis vote, of an effective voice in the elec
tion of State officers, Congressman and Senator.
The result is unquestionably the disenfranchisement of
the Negroes of Texas, and if the device here used is sus
tained by this Court there can be no question but that it
will lie followed by similar legislation in other States (see
Wiley v. West, supra; Holman v. Robinson, supra). It
will mean the disenfranchisement of millions of people,
and history has shown that the disenfranchised, even more
than the disinherited, are fruitful soil for communist
propaganda on the one hand and enslavement on the other.
A narrow construction of the Fourteenth and Fifteenth
Amendments in this case can only result in grave injury
to the institutions which we have built up and to the
whole structure of civil liberty which grew out of the
Civil War days.
It is respectfully submitted that the judgment
appealed from should be reversed, and the cause re
manded for trial upon the merits.
J a m e s M a r s h a l l ,
N a t h a n R. M argold ,
A r t h u r B. S p in g a r n ,
F red C. K n o llen be r g ,
E . F . C a m e r o n ,
Counsel for Petitioner.
N. H. K u g e l m a s s ,
On the Brief.