Nixon v. Condon Motion for Leave to Participate in the Reargument

    (Hmtrt of tljr llnttrii
OCTOBER TERM, 1931 

No. 265

L. A. NIXON,
Petitioner,

against

JAMES CONDON and C. H. KOLLE
Respondents.

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

MOTION FOR LEAVE TO PARTICIPATE 

IN THE REARGUMENT

J. ALSTON ATKINS,
CARTER W. WESLEY,

Attorneys for Movants.

J. M. NABRIT, Jr.,
NABRIT, ATKINS and WESLEY 
CHARLES H. HOUSTON,

Of Counsel



Supreme Court of tlj? Ittitri ^tatro
OCTOBER TERM, 1931 

No. 265

L. A. NIXON,
Petitioner,

against
JAMES CONDON and C. H. KOLLE

Respondents.

MOTION FOR LEAVE TO PARTICIPATE 
IN THE REARGUMENT

TO THE HONORABLE THE CHIEF JUSTICE AND
ASSOCIATE JUSTICES OF THE SUPREME COURT
OF THE UNITED STATES:

C. N. Love, Julius White, The Houston Informer and 
Texas Freeman, and their attorneys herein, individually and 
on behalf of all other Negroes in the City of Houston, Har­
ris County, and State of Texas, who are not otherwise rep­
resented, hereby respectfully move this Honorable Court 
for leave to participate, as amici curiae or otherwise as the 
Court may direct, in the reargument of the above styled 
and numbered cause, which reargument was by this Court, 
on Monday, January 18, 1932, ordered.

In support of this motion, movants respectfully show to 
the Court as follows:

1. That, on October 5, 1931, this Court granted the mov­
ants leave to file a brief in support of the petition for writ 
of certiorari, and that said brief, in the opinion of movants, 
submits a different point of view, a different analysis of 
the issues involved, and important arguments which are



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different from those submitted in the brief of petitioner in 
support of his application for the writ.

2. That, on December 8, 1931, the writ of certiorari hav­
ing- been theretofore granted, this Court granted to mov­
ants leave to file a brief upon the merits, and that said 
brief, in the opinion of movants, submits a different point 
of view, a different analysis of the issues involved, and im­
portant arguments which are different from those submit­
ted in the brief of petitioner upon the merits.

3. That, on January 7, 1932, the case was submitted up­
on oral argument by counsel for petitioner. These mov­
ants are advised and believe that the case was argued upon 
the theory of counsel for petitioner that there was proper­
ly involved in the case a question of party membership, and 
that the universal rule that in party matters the party is 
supreme was inapplicable in this case because the State of 
Texas had so far acted in the matter as to deprive the par­
ty of the power, which it otherwise possesses. As evidence 
the following quotations are cited:

“The only issue in this case is, then, the question 
of whether the acts of the respondents was state ac­
tion.” Page 12 of Petitioner’s Brief on the Merits.

“ The State being the supreme sovereignty, it 
must be deemed to have superseded whatever sov­
ereign powers political parties may previously have 
had with respect to the control of primaries and par­
ty membership.” Page 21 of Petitioner’s Brief on 
the Merits.

4. That, under the point of view of movants and their 
analysis of the issues involved, there is properly no question



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of party membership involved in the case; the fundamental 
issue, movants think, being the power of any State, 
whether Michigan or Texas, to provide for a statutory elec­
tion in which the State guarantees to certain of its citizens 
the right to participate, while declining to guarantee such 
right to others of its citizens, when they are sought to be 
deprived of that right on the ground of race and color alone.

Under this point of view and analysis, movants believe 
that, in view of the following language of the Circuit Court 
of Appeals in this case, to wit:

“It is of course to be conceded, since the decision 
in Nixon v. Herndon, supra, that the right of a 
qualified citizen to vote extends to primary elections 
as well as to general elections.” Nixon v. Condon, 
et al. 49 Fed. (2nd) 1012, 1013,

and, in view of the fact that this Court has jurisdiction by 
reason of the substantial contentions that the Texas statute 
involved is unconstitutional, it is wholly immaterial wheth­
er the defendants’ action is state action or not, this court’s 
jurisdictional power extending to the relief against any le­
gal wrong disclosed by the record.

5. That, should this Court decide the questions involv­
ed in this case adversely to the petitioner, not only he, but 
the 854,964 Negroes in Texas (according to the 1930 cen­
sus), as well as millions of other Negroes all over the South, 
where, as a matter of common knowledge, the same system 
of disfranchising Negroes is in operation, will be perpetual­
ly denied the right to vote; which, as a matter of common



4

knowledge in Texas, means a denial of good streets, drain­
age, lights, and adequate police and fire protection m Ne­
gro neighborhoods; a denial of a fair proportion of parks 
and playgrounds; a denial of adequate library facilities; a 
denial of adequate educational opportunities; a denial of 
adequate hospitals and other health rehabilitating institu­
tions; denial of adequate care to Negro delinquents and un­
fortunates; and a denial of anything like a semblance of 
justice in the distribution of all of the other civic benefits 
which flow from the State to its citizens, the burdens of 
citizenship in Texas being distributed, as a matter of com­
mon knowledge, without regard to race or color. Movants 
respectfully ask the court to judicially notice these matters 
of common knowledge.

6. That, under the circumstances set out in this motion, 
movants believe that the matters involved are so grave, and 
the millions of lives to be affected so numerous, that the 
point of view and analysis contained in the briefs which this 
Court has permitted movants to file in this case, should 
have opportunity to be submitted to this Honorable Court 
upon oral argument before this case is decided upon its 
merits.

Movants and their attorneys feel it not improper also to 
suggest to this Court, that because they have to live in Tex­
as under the system being considered in this case, they are 
justified in urging the peculiar pertinence here of the fol­
lowing words of Mr. Justice Holmes in the case of Diaz v.



5

Gonzalez y Lugo, 67 L. ed. 550, 552:

“When we contemplate such a system from the 
outside it seems like a wall of stone, every part even 
with all the others, except so far as our own local 
education may lead us to see subordinations to 
which we are accustomed. But to one brought up 
within it, varying emphasis, tacit assumptions, un­
written practices, a thousand influences gained only 
from life, may give to the different parts wholly 
new values that logic and grammar never could have 
got from the books.”

WHEREFORE, premises considered, movants and their 
attorneys pray that this Honorable Court may grant them 
leave to participate in the reargument of this case.

Dated February 3, 1932.
C. N. LOVE 
JULIUS WHITE
THE HOUSTON INFORMER AND TEXAS 
FREEMAN
By G. H. WEBSTER, President 
J. ALSTON ATKINS,
One of Attorneys for Movants 
Office and Post Office Address 
409 Smith Street, Houston, Texas.

THE STATE OF TEXAS 
COUNTY OF HARRIS

Before me, the undersigned authority, on this day per­
sonally appeared C. N. Love, Julius White, G. H. Webster, 
and J. Alston Atkins, who, having been by me first duly 
sworn, on their oaths depose and say:

That they are the identical parties who executed the



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within and foregoing motion, and that the allegations set 
forth therein are true, according to their best knowledge 
and belief.

Subscribed and sworn to before me this 3rd day of 
February, A. D. 1932.

LELAND D. EWING
Notary Public in and for Harris County, 
Texas.

My commission expires June 1, 1933.
(SEAL)

Certificate of Counsel
I hereby certify that in my opinion the foregoing Motion 

for Leave to Participate in the Reargument is well found­
ed in law and is filed in good faith and not for delay.

J. ALSTON ATKINS,
One of Attorneys for Movants.