Smith v Allwright Brief for Petitioner

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

Lonnie B. Smith, Petitioner,
vs.

S. E. Allwright, Election Judge, 
and James E. Liuzza, Associate ” 
Election Judge, 48th Precinct of 
Harris County, Texas.

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

[April 3, 1944.]

Mr. Justice R eed delivered the opinion of the Court.

This writ of certiorari brings here for review a claim for dam­
ages in the sum of $5,000 on the part of petitioner, a Negro 
citizen of the 48th precinct of Harris County, Texas, for the re­
fusal of respondents, election and associate election judges re­
spectively of that precinct, to give petitioner a ballot or to permit 
him to cast a ballot in the primary election of July 27, 1940, for 
the nomination of Democratic candidates for the United States 
Senate and House of Representatives, and Governor and other state 
officers. The refusal is alleged to have been solely because of the 
race and color of the proposed voter.

The actions of respondents are said to violate Sections 31 and 
43 of Title 81 of the United States Code in that petitioner was 
deprived of rights secured by Sections 2 and 4 of Article I2 and

1 8 U. 8. C. $ 31: '  _  '
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 district, municipality, or other territorial sub- 
dmsion, shall be entitled and allowed to vote at all such elections, without 
distinction or race, color, or previous condition of servitude; any constitution, 
law custom, usage, or regulation of any State or Territory, or by or under its 
authority, to the contrary notwithstanding. ’ ’

$43: Every person who, under color of any statute, ordinance, regula­
tion, custom, or usage, of any State or Territory, subjects, or causes to be 
subjected, any citizen of the United States or other person within the juris- 
diction thereof to the deprivation of any rights, privileges, or immunities 
secured by the Constitution and laws, shall be liable to the party injured in 
an action at law, suit in equity, or other proper proceeding for redress. ”

2 Constitution, Art. I :
“ Section 2. The House of Representatives shall be composed of Members 

chosen every second Year by the People of the several States, and the Electors



2 2
the Fourteenth, Fifteenth and Seventeenth Amendments to the 
United States Constitution.3 The suit was filed in the District 
Court of the United States for the Southern District of Texas, 
which had jurisdiction under Judicial Code Section 24, subsec­
tion 14.4

The District Court denied the relief sought and the Circuit 
Court of Appeals quite properly affirmed its action on the au­
thority of Grovey v. Townsend, 295 U. S. 45.5 We granted the 
petition for certiorari to resolve a claimed inconsistency between 
the decision in the Grovey case and that of United States v. Classic, 
313 U. S. 299. 319 U. S. 738.

The State of Texas by its Constitution and statutes provides 
that every person, if certain other requirements are met which 
are not here in issue, qualified by residence in the district or 
county “ shall be deemed a qualified elector.”  Constitution of 
Texas, Article VI, Section 2; Vernon’s Civil Statutes (1939 ed.), 
Article 2955. Primary elections for United States Senators, Con­
gressmen and state officers are provided for by Chapters Twelve 
and Thirteen of the statutes. Under these chapters, the Demo­
cratic Party was required to hold the primary which was the
in each State shall have the Qualifications requisite for Electors of the most 
numerous Branch of the State Legislature.”

“ Section 4. The Times, Places and Manner of holding Elections for Sen­
ators and Representatives, shall be prescribed in each State by the Legislature 
thereof; but the Congress may at any time by Law make or alter such Regu­
lations, except as to the Places of cliusing Senators. ’ ’

3 Constitution:
Article XIV. “ Section 1. All persons born or naturalized in the United 

States, and subject to the jurisdiction thereof, are citizens of the United 
States and of the State wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person of life, liberty, or 
property, without due process of law; nor deny to any person within its juris­
diction the equal protection of the laws.”

Article XV. “ Section 1. The right of citizens of the United States to 
vote shall not be denied or abridged by the United States or by any State 
on account of race, color, or previous condition of servitude.

“ Section 2. The Congress shall have power to enforce this article by ap­
propriate legislation.”

Article XVII. 1 ‘ The Senate of the United States shall be composed of 
two Senators from each state, elected by the people thereof, for six years; 
and each Senator shall have one vote. The electors in each state shall have 
the qualifications requisite for electors of the most numerous branch of the 
state legislatures.”

4 A  declaratory judgment also was sought as to the constitutionality of the 
denial of the ballot. The judgment entered declared the denial was consti­
tutional. This phase of the case is not considered further as the decision on 
the merits determines the legality of the action of the respondents.

5 Smith v. Allwright, 131 F. 2d 593.

51
Smith vs. Allwright et al.



occasion of the alleged wrong to petitioner. A  summary of the 
state statutes regulating primaries appears in the footnote.6 
These nominations are to be made by the qualified voters of the 
party. Art. 3101.

51
3 Smith vs. Allwriglit et al. 3

DearWrnm6̂  ‘ t  whieh*I*e state controls the primary election machinery ap­
pears from the Texas statutes, as follows: Art. 3118, Vernon’s Texas Stat-

tes, provides for the election of a county chairman for each party holding a
o/The^ua^tv’ 6 qu.aljfk’d voters of the wh°le county,”  and of one member 

+-P 8'.county executive committee by the “ qualified voters of their
m m  T l m  V  pr' “ “ct9-’ ’ These officers have direct charge of the pri- 
mary. There is m addition statutory provision for a party convention: the 
, rs each precinct choose delegates to a county convention, and the latter

Mttoritr to^riinn,1 th ' ‘f 4!6 conve“ ! ion' Art- 3134- The state convention has 
1939 Sunn w  ? te e« Cutlve committee and its chairman. Art. 3139,

tCandldates for offices to be filled by election are required to be 
votes ^ t t ,  3 Tj:!mary election if the nominating party cast over 100 000 
votes at the preceding general election. Art. 3101. The date of the primary
a n d ^  no c a n d S  in J" ly ’ a mâ  »  -qu^ed f t  n o X a £ £n° candidate receives a majority, a run-off primary between the two
310a Voundmgi candldates is held on the fourth Saturday in August Art 
oppositf party P Art 6 ," ’lthln a hlmdred yards of those used by the
presiding luE ’e tfc °  ' • ? ac* Precmct P’mnary is to be conducted 'by a 
R J ® d “f  judge and the assistants he names. These officials are selected bv
by tfce

s»ss a s  rtrW ” in<ir :,t *>*•-

cw ?»a SEFZsmcstizsi

onAthe8' primary1 iballo/ for ̂ fe^eraT's7ate dUtrict*3™ 8 ° f pro^ iag a place

SSSS ve0o ™ 'i.„Teh” = - • »  3 ST22g
B M V J t

posts, such as the offices of district jud*e“ W e



The Democratic Party of Texas is held by the Supreme Court 
o that state to be a “ voluntary association,”  Bell v. Hill, 123 
lex . 531, 534, protected by Section 27 of the Bill of Rights, Art. 
, Constitution of Texas, from interference by the state except

51
4 Smith vs. Allwright et al. 4

J o l ScountLa fee8r\Prree1 xed b ; A r t ^ m l d * ” ^ ^  3nd for

3n9P'andUAPrte3120 authorize^theuseolfoUng booths ^
rails, prepared for the general election “  fnf t ? 7  ba,.lot boxes and guard 
nominating by primary elpctinn + w  + 01 * 16 organized political party
the preceding general election ”  Vhp 1  ° T  ?ne luadrcd thousand votes at

t T n n  Thers by
“ d ' P  - e ao£ththePrS

25 cover the making Sf returns to t l  "  teIeCtlJ0na;  Art. 3122. Arts. 3123-
of the result by the county committee. By Art SlLT6 a^statTdiand Ca" VaS3 required of the state executive t  ■“■“ • 3127, a statewide canvass is
similar canvass bv the state convention .•?£ State and dlstrict officers and a 
vided by Art 3138 The ,. ’ '''i l  respect to state officers is pro-

' county yc,erks, Z  Z  ^  ^  t0 the31^7 T3on *. l, ie ornceis to the Secretary of State Art<s 3197
Art ’ 3128 fgifsuuu0^  7 *  M s  7 °  *° be Tet™ eA to the cotnty clerk’ 
county clerk must p^Xl’ish^he” r e L r  sC°Utlty 0„0muiittee, the
is made within five days the name of th ' • ’ 1 . “ / SuPP- If no objection
official ballot by the county clert A t ,0 be Placed 011 the
2984, 2992, 2996. Arts 3146 53 mao V  ’ 194? Supp. Cf. Arts. 2978, 
The state district courts have exclusive n ^ ’’ P™'’1?6, for election contests, 
of Civil Appeals has appellate iurisdTc I n  ^  f  P^diebicn, and the Court 
ized to issue writs of mandamus to ronni™ .‘e C0llrts are als0 author- 
men, and primary officers to discharge the , J:xec.utlve committees, committee- 
3142 ; cf. Art, 3124. U'sciiarge the duties imposed by the statute. Art.

of''the r^pectivedpartiese<̂ c o dumn°for ̂ ndp ,ccdu®?a8 for the nominees 
column for such names as the voters^care to C“?d ^ 7 ’ and a blank
names of nominees of a mrtv to wrlte ln- Arts. 2978, 2980. The
preceding general election may no^ be^rinted^n11̂ 10^ 0]0̂  V° teS at the ,ast 
chosen at a primary election Art 2978 p !  ^ e4baII°  unless they were 
nominees may have their r» • +.’ f  *,v Candidates who are not party
3159-62. This' sections reoufre * 7  hf ° l  with Arts
State, county judge, or mayor for in A  10na t® he filed with the Secretary of 
respectively/ The applications’ must h e .and dlstnct> county, and city ofliccs, 
her of from one to five per cenTof the 7 7 t  by f alified voters to the num- 
depending on the office. * Bach signer must t«k«°»8t a(V w  Preceding election, 
did not participate in a primary -d „ , .? n oafh to the effect that he
was nominated. While this reauirnnent , caadldat® f°r the office in question 
has voted in the party primary t!„,„ baS been udd to preclude one who
Westerman v. Mims,‘ 111 Tex °9 2 2 7 s V m  th® bai Iot as an “ dependent, 
mott, 277 8 W Pis t r>\„ V “ 1 ’ v' 118: see Cunningham v. McDer-
elected at the Jen al f i i o W i  wisupra. election bj a write-in vote. Cunningham v. McDermott,

portant respect”^  Art 3139' 1939 sipT^th by f 16 State in one other im‘ 
a platform of priniiples, but' ’its' su b m it,, 7  \h conventiPn can announce 
to party advocacy of specific le g is C r  irt. iS a



5 5
In the interest of fair methods and a fair expression by their 

memhers of their preferences in the selection of their nominees, 
the state may regulate such elections by proper laws.”  P. 545̂
That court stated further:

“ Since the right to organize and maintain a political party is 
one guaranteed by the Bill of Rights of this State, it necessarily 
follows that every privilege essential or reasonably appropriate 
to the exercise of that, right is likewise guaranteed,— including, 
of course, the privilege of determining the policies of the party 
and its membership. Without the privilege of determining the 
policy of a political association and its membership, the right to 
organize such an association would be a mere mockery. We think 
these rights,— that is, the right to determine the membership of 
a political party and to determine its policies, of necessity are’ 
to be exercised by the State Convention of such party, and can­
not, under any circumstances, be conferred upon a State or gov­
ernmental agency.”  P. 546. Cf. Waples v. Marrast, 108 Texas 5.

The Democratic party on May 24, 1932, in a State Convention 
adopted the following resolution, which has not since been 
“ amended, abrogated, annulled or avoided” :

“ Be it resolved that all white citizens of the State of Texas who 
are qualified to vote under the Constitution and laws of the State 
shall be eligible to membership in the Democratic party and, as 
such, entitled to participate in its deliberations.”
It was by virtue of this resolution that the respondents refused 
to permit the petitioner to vote.

Texas is free to conduct her elections and limit her electorate 
as she may deem wise, save only as her action may be affected by 
the prohibitions of the United States Constitution or in conflict 
with powers delegated to and exercised by the National Govern­
ment.7 The Fourteenth Amendment forbids a state from making 
or enforcing any law which abridges the privileges or immunities 
of citizens of the United States and the Fifteenth Amendment 
specifically interdicts any denial or abridgement by a state of the 
light of citizens to vote on account of color. Respondents appeared 
in the District Court and the Circuit Court of Appeals and defended 
on the ground that the Democratic party of Texas is a voluntary 
organization with members banded together for the purpose of select­
ing individuals of the group representing the common political be- 
liefs as candidates in the general election. As such a voluntary or-

VCf. Parker v. Brown, 317 U. S. 341, 359-60.

51
Smith vs. Allwright et al.



6

ganization, it was claimed, the Democratic party is free to select its 
own membership and limit to whites participation in the party 
primary. Such action, the answer asserted, does not violate the 
Fourteenth, Fifteenth or Seventeenth Amendment as officers of 
government cannot be chosen at primaries and the Amendments 
are applicable only to general elections where governmental officers 
are actually elected. Primaries, it is said, are political party 
affairs, handled by party not governmental officers. No appear­
ance for respondents is made in this Court. Arguments presented 
here by the Attorney General of Texas and the Chairman of the 
State Democratic Executive Committee of Texas, as amici curiae, 
urged substantially the same grounds as those advanced by the 
respondents.

Ihe right of a Negro to vote in the Texas primary has been 
considered heretofore by this Court. The first case was Nixon v. 
Herndon, 273 U. S. 536. At that time, 1924, the Texas statute, 
Art. 3093a, afterwards numbered Art. 3107 (Rev. Stat. 1925) 
declared in no event shall a Negro be eligible to participate in 
a Democratic Party primary election in the State of Texas.”  
Nixon was retused the right to vote in a Democratic primary and 
brought a suit for damages against the election officers under 
R. S. § 1979 and 2004, the present sections 43 and 31 of Title 8, 
U. S. C., respectively. It was urged to this Court that the denial 
of the franchise to Nixon violated his Constitutional rights under 
the Fourteenth and Fifteenth Amendments. Without considera­
tion of the Fifteenth, this Court held that the action of Texas 
in denying the ballot to Negroes by statute was in violation of the 
equal protection clause of the Fourteenth Amendment and re­
versed the dismissal of the suit.

The legislature of Texas reenacted the article but gave the - 
Slate Executive Committee of a party the power to prescribe the 
qualifications of its members for voting or other participation. 
This article remains in the statutes. The State Executive Com­
mittee of the Democratic party adopted a resolution that white 
Democrats and none other might participate in the primaries of 
that party. Nixon was refused again the privilege of voting in 
a primary and again brought suit for damages by virtue of Sec­
tion 31, Title 8 U. S. C. This Court again reversed the dismissal 
of the suit for the reason that the Committee action was deemed 
to be State action and invalid as discriminatory under the Four-

51
Smith vs. Allwright et al. 6



7 7
51

Smith vs. Allwright et al.

teenth Amendment. The test was said to be whether the Com­
mittee operated as representative of the State in the discharge of 
the State’s authority. Nixon v. Condon, 286 U. S. 73. The ques­
tion of the inherent power of a political party in Texas “ without 
restraint by any law to determine its own membership”  was left 
open. Id., 84-85.

In Grovey v. Townsend, 295 U. S. 45, this Court had before it 
another suit for damages for the refusal in a primary of a county 
clerk, a Texas officer with only public functions to perform, to 
furnish petitioner, a Negro, an absentee ballot. The refusal was 
solely on the ground of race. This case differed from Nixon v. 
Condon, supra, in that a state convention of the Democratic party 
had passed the resolution of May 24, 1932, hereinbefore quoted. 
It was decided that the determination by the state convention of 
the membership of the Democratic party made a significant change 
from a determination by the Executive Committee. The former 
was party action, voluntary in character. The latter, as had been 
held in the Condon case, was action by authority of the State. 
The managers of the primary election were therefore declared not 
to be state officials in such sense that their action was state action. 
A  state convention of a party was said not to be an organ of the 
state. This Court went on to announce that to deny a vote in a 
primary was a mere refusal of party membership with which “ the 
state need have no concern,”  loc. cit. at 55, while for a state to 
deny a vote in a general election on the ground of race or color 
violated the Constitution. Consequently, there was found no 
ground for holding that the county clerk’s refusal of a ballot be­
cause of racial ineligibility for party membership denied the peti­
tioner any right under the Fourteenth or Fifteenth Amendments.

Since Grovey v. Townsend and prior to the present suit, no 
case from Texas involving primary elections has been before this 
Court. We did decide, however, United States v. Classic, 313 
U. S. 299. We there held that Section 4 of Article I of the Con­
stitution authorized Congress to regulate primary as well as 
general elections, 313 U. S. at 316, 317, “ where the primary is 
by law made an integral part of the election machinery.”  313 
U. S. at 318. Consequently, in the Classic case, we upheld the 
applicability to frauds in a Louisiana primary of §§19 and 20 
of the Criminal Code. Thereby corrupt acts of election officers



8
51

Smith vs. Allwright et al.

were subjected to Congressional sanctions because that body had 
power to protect rights of Federal suffrage secured by the Con­
stitution in primary as in general elections. 313 U. S. at 323 
This decision depended, too, on the determination that under the 
Louisiana statutes the primary was a part of the procedure for 
e mice of b ederal officials. By this decision the doubt as to 
whether or not such primaries were a part of “ elections”  subject 
to Federal control, which had remained unanswered since New­
berry v. United States, 256 U. S. 232, was erased. The Nixon 
Cases were decided under the equal protection clause of the Four­
teenth Amendment without a determination of the status of the 
primary as a part of the electoral process. The exclusion of 
Negroes from the primaries by action of the State was held in­
valid under that Amendment. The fusing by the Classic case of 
the primary and general elections into a single instrumentality 
or choice of officers has a definite bearing on the permissibility 

under the Constitution of excluding Negroes from primaries. This 
is not to say that the Classic case cuts directly into the rationale 
of Grovey v. Townsend. This latter case was not mentioned in 
tlie opinion. Classic bears upon Grovey v. Townsend not because 
exclusion of Negroes from primaries is any more or less state 
action by reason of the unitary character of the electoral process 
but because the recognition of the place of the primary in the 
electoral scheme makes clear that state delegation to a party of 
the power to fix the qualifications of primary elections is delega­
tion of a state function that may make the party’s action the action 
ot the state. When Grovey v. Townsend was written, the Court 
ooked upon the denial of a vote in a primary as a mere refusal 

by a party of party membership. 295 U. S. at 55. As the Louisiana 
statutes for holding primaries are similar to those of Texas our 
ru mg m Classic as to the unitary character of the electoral’ pro­
cess calls for a reexamination as to whether or not the exclusion 
o Negroes from a Texas party primary was state action.

he statutes of Texas relating to primaries and the resolution 
of the Democratic party of Texas extending the privileges of mem- 

ership to white citizens only are the same in substance and effect 
oday as they were when Grovey v. Townsend was decided by a 

unanimous Court. The question as to whether the exclusionary 
action of the party was the action of the State persists as the 

eterminative factor. In again entering upon consideration of



9

the inference to be drawn as to state action from a substantially 
similar factual situation, it should be noted that Grovey v. Town­
send upheld exclusion of Negroes from primaries through the de­
nial of party membership by a party convention. A few years 
before this Court refused approval of exclusion by the State Execu­
tive Committee of the party. A different result was reached on 
the theory that the Committee action was state authorized and 
the Convention action was unfettered by statutory control. Such 
a variation in the result from so slight a change in form influences 
us to consider anew the legal validity of the distinction which has 
resulted in barring Negroes from participating in the nominations 
of candidates of the Democratic party in Texas. Other precedents 
of this Court forbid the abridgement of the right to vote. United 
States v. Reese, 92 U. S. 214, 217; Neal v. Delaware, 103 U. S. 370, 
388; Gmnn v. United States, 238 U. S. 347, 361; Myers v. Ander­
son, 238 U. S. 368, 379; Lane v. Wilson, 307 U. S. 268.

It may now be taken as a postulate that the right to vote in 
such a primary for the nomination of candidates without dis­
crimination by the State, like the right to vote in a general elec­
tion, is a right secured by the Constitution. United States v. 
Classic, 313 U. S. at 314; Myers v. Anderson, 238 U. S. 368; 
Ex parte Yarborough, 110 U. S. 651, 663 et seq. By the terms of 
the Fifteenth Amendment that right may not be abridged by any 
state on account of race. Under our Constitution, the great privi­
lege of choosing his rulers may not be denied a man by the State 
because of his color.

We are thus brought to an examination of the qualifications for 
Democratic primary electors in Texas, to determine whether state 
action or private action has excluded Negroes from participation. 
Despite Texas’ decision that the exclusion is produced by private 
or party action, Bell v. Hill, supra, Federal courts must for them­
selves appraise the facts leading to that conclusion. It is only 
by the performance of this obligation that a final and uniform 
interpretation can be given to the Constitution, the “ supreme Law 
of the Land.”  Nixon v. Condon, 286 U. S. 73, 88; Standard Oil 
Co. v. Johnson, 316 U. S. 481, 483; Bridges v. California, 314 
U. S. 252; Lisenba v. California, 314 U. S. 219, 238; Union Pacific 
R. Co. v. United States, 313 U. S. 450, 467; Drivers Union v. 
Meadowmoor Co., 312 U. S. 287, 294; Chambers v. Florida, 309 
U. S. 227, 228. I exas requires electors in a primary to pay a

51
Smith vs. Allwright et al. 9



10

poll tax. Every person who does so pay and who has the quali­
fications of age and residence is an acceptable voter for the pri­
mary. Art. 29o5. As appears above in the summary of the 
statutory provisions set out in note 6, Texas requires by the law 
the election of the county officers of a party. These compose 
the county executive committee. The county chairmen so selected 
are members of the district executive committee and choose the 
chairman for the district. Precinct primary election officers are 
named by the county executive committee. Statutes provide for 
the election by the voters of precinct delegates to the county con­
vention of a party and the selection of delegates to the district 
and state conventions by the county convention. The state con­
vention selects the state executive committee. No convention may 
place in platform or resolution any demand for specific legislation 
without endorsement of such legislation by the voters in a pri­
mary. Texas thus directs the selection of all party officers.

Primary elections are conducted by the party under state statu­
tory authority. The county executive committee selects precinct 
election officials and the county, district or state executive com­
mittees, respectively, canvass the returns. These party com­
mittees or the state convention certify the party’s candidates to 
the appropriate officers for inclusion on the official ballot for the 
general election. No name which has not been so certified may ap­
pear upon the ballot for the general election as a candidate of a 
political party. No other name may be printed on the ballot 
which has not been placed in nomination by qualified voters who 
must take oath that they did not participate in a primary for 
the selection of a candidate for the office for which the nomina­
tion is made.

The state courts are given exclusive original jurisdiction of 
contested elections and of mandamus proceedings to compel party 
officers to perform their statutory duties.

We think that this statutory system for the selection of party 
nominees for inclusion on the general election ballot makes the 
party which is required to follow these legislative directions an 
agency of the state in so far as it determines the participants in 
a piimary election. The party takes its character as a state agency 
from the duties imposed upon it by state statutes; the duties do 
not become matters of private law because they are performed by a 
political party. The plan of the Texas primary follows substan­

51
Smith vs. Allwright et al. 10



11 11
tially that of Louisiana, with the exception that in Louisiana the 
state pays the cost of the primary while Texas assesses the cost 
against candidates. In numerous instances, the Texas statutes fix 
or limit the fees to be charged. Whether paid directly by the state 
or through state requirements, it is state action which compels. 
When primaries become a part of the machinery for choosing of­
ficials, state and national, as they have here, the same tests to deter­
mine the character of discrimination or abridgement should be ap­
plied to the primary as are applied to the general election. If the 
state requires a certain electoral procedure, prescribes a general 
election ballot made up of party nominees so chosen and limits the 
choice of the electorate in general elections for state offices, prac­
tically speaking, to those whose names appear on such a ballot, it 
endorses, adopts and enforces the discrimination against Negroes, 
practiced by a party entrusted by Texas law with the determination 
of the qualifications of participants in the primary. This is state 
action within the meaning of the Fifteenth Amendment. Guinn v. 
United States, 238 U. S. 347, 362.

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

The privilege of membership in a party may be, as this Court 
said in Grovey v. Townsend, 295 U. S. 45, 55, no concern of a 
state. But when, as here, that privilege is also the essential quali-1 
fication for voting in a primary to select nominees for a general j 
election, the state makes the action of the party the action of the' 
state. In reaching this conclusion we are not unmindful of the 
desirability of continuity of decision in constitutional questions.8 
However, when convinced of former error, this Court has never 
felt constrained to follow precedent. In constitutional questions, 
where correction depends upon amendment and not upon legis- 
lative action this Court throughout its history has freely exercised

8 Cf- Pollock v. Farmers Loan & Trust Co., 157 U. S. 429, 652.

51
Smith vs. Allwright et al.



12 12
its power to reexamine the basis of its constitutional decisions. 
This has long been accepted practice,9 and this practice has con­
tinued to this day.10 This is particularly true when the decision 
believed erroneous is the application of a constitutional principle 
rather than an interpretation of the Constitution to extract the 
principle itself.11 Here we are applying, contrary to the recent 
decision in Grovey v. Townsend, the well established principle of 
the F ifteenth Amendment, forbidding the abridgement by a state 
of a citizen’s right to vote. Grovey v. Townsend is overruled.

Judgment reversed.

Mr. Justice F rankfurter  concurs in the result.

51
Smith vs. Allwright et al.

Ga0sSCo,C2l5 dissentillg “  Burnet *. Coronado Oil &

See e. g , United States v. Darby, 312 U. S. 100, unanimously overruling 
Hammer v Dagenhart, 247 U. S. 251; California v. Thompson, 313 U. S 10if 
unanimously overruling DiSanto v. Pennsylvania, 273 U. S. 34; West Coast
261teu Cs ' 3°A°rU'iS' a79’ overn,linf? Adkins v. Children’s Hospital,,  1 Ul o-o (and see Morehead v. New York rx re], T'paldo 298 IT S 5871
verfnTn8pthe; land’ n **  Reynolds and Butler dissentingi Hel-
257 U S 50°1 TnT RC°rPt 3° p U‘ S- 37G> overruling Gillespie v. Oklahoma, 207 U. 8. o01 and Burnet v. Coronado Oil & Gas Co., 285 U. S. 393- Brie 

. Co. v. Tompkins, 304 U. S. 64, overruling Swift v. Tyson 16 Pet 1
O ’Keeffe 306 U a| d4^ eBeynolf.S d;“ “ ting ; Graves v. New York ex ' rei  
y i  efe’ , G U- s - 466> overruling Collector v. Day, 11 Wall. 113, and New
dissenting'’ vv'^T’ 2"i . U’ S- 401’ Jllsticcs Butler and McReynoldsdissenting O Halley v. Woodrough, 307 U. S. 277, overruling Miles v. Graham,
2b8 U. 8. 501, Justice Butler dissenting; Madden v. Kentucky 309 U 8 83
Z I S  m i?C hief f  7 ey’ 296,U- 8 4°*> •T"  G«OS Roberts and^McReynohls 
v Hallock 309 II S mo , c° T urrinff 0,1 other grounds; Helvering
296 U S 39 L Y r  , ’ ° Z Trr ?  ?Tel.verln«  *■ St- Louis Union Trust Co,
p h ;  b' J 9 d Becker v- St. Louis Union Trust Co., 296 U. S 48 Justices 
Robeits and McReynolds dissenting and Chief Justice Hughes concurring on 
other grounds; Nye v. United States, 313 U. S. 33 overruling ToWln 
paper Co. v. United States, 247 U. S. 402, Chief Justice’Hughes and Justices Stone
o v l Y t Cr p Y n S ing0 1Ar ab,UU?^'- & 314 U. S 1 uSnlmously
298 U S to w f  277 U' S' 218 and Graves *. Texas Co,
f  Haddocf 20r Y  as"%r'o rrt 1 Car°Tn;:’ 317 U- S’ 287’ overruling Haddock v. narldock, 201 U. S. o62, Justices Jackson and Murphy dissenting- State

Uf  Si 174’ F U  N“ gB an fvMaine, ,84 to S. 312, Justices Jackson and Roberts dissenting- Board of
S E 103nl O v T ^ Z 3] 9 ti S- ^ o v e rru lin g  Minersville School DiT r L I .  

1  U’ S- 586’ Justlces Frankfurter, Roberts and Reed dissenting, 
tit. Dissent in Burnet v. Coronado Oil & Gas Co, 285 U. S. 393 at 410.



* ^