Nixon v. Condon Petitioner's Points

    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.