Smith v Allwright Brief Amicus Curiae

    Supreme Court of the United States
OCTOBER TERM 1943 

No. 51

Lonnie E. Smith, Petitioner

v.

S. E. A llwright, Election Judge, Et Al,
Respondents.

BRIEF OF GERALD C. MANN. ATTORNEY 
GENERAL OF TEXAS AS AMICUS CURIAE.

Gerald C. Mann ,
Attorney General of Texas

R. W. Fairchild 
George W. Barcus 

Assistant Attorney General

Attorneys for Amicus 
Curiae

ITEM FOUNDATION— AUSTIN



IN DEX
Pages 
_  2Point One

Point Two ____________________________________  2
Preliminary Statement ________________________ 2

Point One (restated) __________________________  3
Argument and Authorities under Point O ne___  3

Point Two (restated) ___ _________________ — 10
Argument and Authorities under Point Two 10

Conclusion _____________________________________  27

AUTHORITIES

Bell v. Hill, 123 Tex. 531______________________  13

Bid of Rights State of Texas, Section 27______ ... 10

Constitution of the United States:
First Amendment ___________________________  10

Article I, Section 2 ______    23

Article X V II ____________ „___________________  23
Article XIV , Section 2 ______________________  25

Drake v. Executive Committee o f the Demo­
cratic Party, 2 Fed. Supp. 486 ______________  12

Ex parte Anderson, 51 Tex. Cr. R. 239_________  5

Grovey v. Townsend, 295 U. S. 45 9, 12, 21

Love v. Buckner, 121 Tex., 369 ________ 18, 20

Revised Civil Statutes of Texas 
Article 3 1 04_________________________________  4



AUTHORITIES— Continued
Pages

Article 3105_________________________________  4

Article 3 1 09_________________________________  19
Article 3110_______________    19

Scurry v. Nicholson, 9 S. W. (2 ) 74 7___________  16

United States v. Classic, 313 U. S. 299_________  21

Walker v. Hopping, 226 S. W. 146______________  6
Walker v. Mobley, 101 Tex. 28___ _____________ 6

Waples v. Marrast, 108 Tex. 5 ________________  7
White v. Lubbock, 30 S. W. (2) 722 _______  17



Supreme Court of the United States
OCTOBER TERM 1943 

No. 51

Lonnie E. Smith, Petitioner 

v.

S. E. A llwright, Election Judge, Et A l,
Respondents.

BRIEF OF GERALD C. MANN. ATTORNEY 
GENERAL OF TEXAS AS AMICUS CURIAE.

To the Honorable Supreme Court:

Now comes Gerald C. Mann, Attorney General of 
Texas, leave of this court first having been obtained, 
and files this his amicus curiae brief in the above 
cause. He shows to the court that while the Demo­
cratic Party in Texas is purely political, and that as 
Attorney General he is not authorized to represent 
the party as such. The question involved in this liti­
gation however is of such importance to the citizen­
ship of Texas and to the preservation of the purity 
o f the ballot in primary elections, that as Attorney 
General of Texas, he feels that it is his duty to file 
this brief.



— 2—

He shows to the court that by reason of the far- 
reaching effect o f the questions involved, and by rea­
son of the fact that the respondents have not filed 
any brief in this court or appeared, that the question 
should be argued orally, and he has therefore re­
quested permission of this court to argue same at 
such time as is convenient to the court.

The two major questions that are necessary to be 
determined in this litigation are:

POINT O N E: Is an election judge who conducts
or holds a primary election for a political party in 
Texas a State officer?

POINT TWO: Have the white Democrats in
Texas, or any other political group in Texas, the 
right to determine who, or what class o f people or 
voters shall constitute the party they desire to or­
ganize?

PRELIMINARY STATEMENT

It is now well recognized in practically every state 
o f the Union that in order to maintain a Democratic 
form of government, it is necessary to have political 
parties, which in turn select candidates for office 
from the President of the United States down to the 
smallest office-holder in the respective states.

In practically every state stringent laws have been 
enacted regulating these primary elections, or nom­
inating conventions, in order to eliminate as far as



possible corruption and get the free, full and fair 
expression from  those who constitute the particular 
party seeking to nominate or select its candidates 
for  the respective offices.

Looking toward this end, the Legislature in Texas 
in 1903 passed its first full and complete primary 
election law. This law was entirely rewritten in 1905, 
and since that time has been amended in many re­
spects to meet the contingencies and conditions that 
have arisen by reason of certain groups seeking to 
corrupt the ballot box in the primary election or 
nomination conventions.

So far as we have been able to ascertain the courts 
have never held that they had the right to determine 
who would or would not compose a particular politi­
cal organization. Under the Constitution o f the 
United States, as well as the Bill o f Rights in Texas, 
citizens of the State have always had the privilege 
to create any kind o f an organization they desired 
which does not violate the law.

POINT ONE (restated): Is an election judge 
who conducts or holds a primary election for a politi­
cal party in Texas a State officer?

ARGUMENT AND AUTHORITIES UNDER 
POINT ONE

The highest courts in Texas have definitely held 
that the Chairman of the County Democratic Execu­



4 -

tive Committee is not an officer within the terms 
and definitions of the Constitution and laws of the 
State of Texas. Article 3101 of the Revised Statutes 
of Texas provides for the holding of a primary elec­
tion to be held by each organized political party that 
casts more than one hundred thousand votes in the 
last general election to nominate candidates for all 
offices to be filled at the general election. The ef­
fect of this statute unquestionably was and is to re­
quire political parties in Texas which have sufficient 
strength to have cast as many as one hundred thou­
sand votes in the preceding general election to nom­
inate its candidates if any or desired by a primary 
election. This law was evidently passed to prevent 
a small group within such political party from meet­
ing in a convention and nominating such officers.

Article 3104 of the Revised Statutes of Texas pro­
vides that the primary election shall be conducted 
by a presiding judge to be appointed by a Chairman 
of the County Executive Committee of the party, 
with the assistance and approval of at least a major­
ity o f the membeirs o f the County Executive Com­
mittee. The presiding judge is then authorized to 
select his associate judge and clerks.

In order that peace may be preserved and no dis­
turbing element prevent the election from being held 
in an orderly manner, Article 3105 of the Revised 
Statutes gives to the judges of the primary election 
authority to maintain peace and order, and if  neces­
sary, arrest any person causing disturbance within 
one hundred feet o f the election polling place.



Article 3105 of the present statute is in the exact 
language o f Article 3090 of the Revised Statutes o f 
Texas o f 1911, and was passed by the Legislature 
in 1905.

.'n 1907 the Court of Criminal Appeals in Texas, 
which is the court o f last resort in criminal matters, 
in the case of Ex parte Anderson, 51 Tex. Cr. R. 
239,102 S. W. 727, passed directly upon the question 
as to whether the County Chairman of the Demo­
cratic Executive Committee was an officer under 
the provisions o f the Texas Constitution and law. In 
said case it appears that a prohibition election had 
been held, and the presiding judge at one o f the larg­
est voting boxes was the chairman o f the Democratic 
Executive Committee. The contention was made 
that the election was void because of said fact. In 
overruling this contention, the court used the follow­
ing language:

“ Relator insists that the local option law is 
invalid because the presiding judge of the voting 
precinct No. 2 in the local option election was at 
the time of holding o f said election an officer of 
trust under the laws of this state, to-wit, was 
chairman of the Democratic executive commit­
tee, having been theretofore elected to said o f­
fice at the primary election held in said county 
on July 28th. The insistence is that he was thus 
holding two offices of profit and trust. We do 
not think there is anything in this contention. 
To be chairman o f the Democratic executive 
committee for the county was not an office of 
profit and trust within the contemplation o f the 
laws o f this state. * * *



— 6 —

In the case of Walker v. Mobley, 101 Tex. 28, 103 
S. W. 490, the Supreme Court of Texas definitely- 
passed upon the question as to whether the County 
Chairman of the Democratic Executive Committee 
of a particular county was an officer, within the 
purview of our Constitution and law, and held spe­
cifically that he was not, and in so doing, used the 
following language:

“ * * * . The ground of disqualification 
urged is that the chairman of an executive com­
mittee o f a political party is an officer of the 
state or county. There is nothing in the lan­
guage o f the law or the Constitution to support 
the contention. Dean (who was chairman of the 
county Democratic executive committee) was 
not disqualified to act as judge of the (prohibi­
tion) election.”

The same question came before the Court o f Civil 
Appeals in Texas in case of Walker V. Hopping, 226 
S. W. 146, and no application for writ of error was 
made in said case. The Court of Civil Appeals at 
Amarillo in said case in holding that the members 
o f the Democratic County Executive Committee 
were not state officers used the following language:

“ (3) Appellant first advances the proposi­
tion that the executive committeemen provided 
for by this article of the statute are officers 
within the provisions of article 16, § 17, o f the 
Constitution, reading:

“ ‘All officers within this state shall continue 
to perform the duties o f their offices until their



— 7—

successors shall be duly qualified.’

“ We think that the term ‘officers,’ referred to 
in the Constitution, has reference to public or 
governmental officers, and that the officers of 
a political party, although provided for by statu­
tory law. are not to be regarded as public or gov­
ernmental officers. Coy v. Schneider, 218 S. W. 
479; Waples v. Marrast, 108 Tex. 5; Walker v. 
Mobley, 101 Tex. 28. A reference to the decisions 
cited, we believe, will render a further discussion 
o f this proposition superfluous.”

In Waples V. Marrast, 108 Tex. 5, 184 S. W. 180, 
the Supreme Court of Texas held unconstitutional 
that portion of the primary election law in Texas 
which required the various counties to pay the ex­
penses of said primary elections. In said opinion the 
court reviewed at length the entire primary election 
law. It held specifically that the nomination by politi­
cal parties of their officers was not a State business, 
and could not, therefore, be paid for with State mon­
ey, and we think in effect definitely held that the of­
ficers of a political party were not in any sense of the 
word officers o f the State. The court used the fol­
lowing language:

(6) * * * “A  political party is nothing 
more or less than a body o f men associated for 
the purpose o f furnishing and maintaining the 
prevalence of certain political principles or be­
liefs in the public policies of the government. 
As rivals for popular favor they strive at the 
general elections for the control of the agen­
cies o f the government as the means o f pro­
viding a course for the government in accord



— 8—

with their political principles and the adminis­
tration of those agencies by their own adherents. 
According to the soundness of their principles 
and the wisdom of their policies they serve a 
great purpose in the life of a government. But 
the fact remains that the objects of political 
organizations are intimate to those who com­
pose them. They do not concern the general 
public. They directly interest, both in their 
conduct and in their success, only so much of 
the public as are comprised in their membership, 
and then only as members of the particular 
organization. They perform no governmental 
function. They constitute no governmental 
agency. The purpose of their primary elections 
is merely to enable them to furnish their nomi­
nees as candidates for the popular suffrage. 
* * *

“ The great powers of the State,— and the tax­
ing power is the one to be always the most care­
fully guarded,— cannot be used, in our opinion, 
in aid of any political party or to promote the 
purposes of all political parties. * * * .

“ To provide nominees o f political parties for 
the people to vote upon in the general elections, 
is not the business o f the State. It is not the 
business o f the State because in the conduct o f 
the government the State knows no parties and 
can know none. If it is not the business of the 
State to see that such nominations are made, 
as it clearly is not, the public revenues cannot 
be employed in that connection. * * * . Politi­
cal parties are political instrumentalities. They 
are in no sense governmental instrumentalities.”

While petitioner seeks to minimize the opinion of



— 9—

this court in the case of Grovey v. Townsend, 295 
U. S. 45, on the theory that the facts were not de­
veloped in that case, we submit that the entire ques­
tion as to whether the election judge is a State o ffi­
cer was fully and definitely settled by this court. The 
primary election law in Texas has not been in any 
way changed or modified since said opinion was writ­
ten. The opening sentence on page 48 of the Grovey 
v. Townsend opinion reads:

“ The charge is that respondent, a state o ffi­
cer, in refusing to furnish petitioner a ballot, 
obeyed the law of Texas, and its consequent 
denial of petitioner’s right to vote in the pri­
mary election because of his race and color was 
state action forbidden by the Federal Constitu­
tion.”

After discussing said proposition at length, and 
citing numerous authorities from the State o f Texas, 
this court on page 53 o f said opinion, used this lan­
guage:

“ In the light of the principles so announced, 
we are unable to characterize the managers of 
the primary election as State officers in such 
sense that any action taken by them in obedience 
to the mandate of the State convention respect­
ing eligibility to participate in the organiza­
tion’s deliberation, is the State action.”

While it is true the Legislature in Texas has at­
tempted to throw every safeguard around primary 
elections held by any and all political parties who 
seek to nominate candidates for office, in order to



- 10-

preserve the purity of the ballot, the Texas Legisla­
ture has not attempted to control who must be the 
members of any political branch or party. It did 
attempt to pay the expenses of primary elections, 
but as before stated, our courts held under our Con­
stitution the Legislature could not do so.

POINT TWO (restated): Have the white Demo­
crats in Texas, or any other political group in Texas, 
the right to determine who, or what class of people 
or voters shall constitute the party they desire to 
organize?

ARGUMENT AND AUTHORITIES UNDER 
POINT TWO

As we construe same, it is petitioner’s contention 
that a political party in Texas cannot determine who 
shall be a member thereof. We submit this proposi­
tion is not tenable. To say that any group of citi­
zens cannot lawfully assemble and organize a politi­
cal party for the purpose o f nominating candidates 
for office would be to deprive them of the inalienable 
right given under the First Amendment to the Fed­
eral Constitution as well as Sec. 27 of the Bill of 
Rights in the State of Texas. On page 29 in the 
brief filed herein by petitioner, he states there are 
now in Texas 540,565 adult Negro citizens. If these 
Negro citizens in Texas desire to organize a political 
party, petitioner would not, we are confident, argue 
that they could not do so. Neither would this court, 
we are constrained to believe, hold that they could 
not organize a political party in the State o f Texas,



— 11—

and exclude from said Party all persons except Ne­
groes.

We have in Texas approximately 400,000 Mexi­
cans. Unquestionably, under their constitutional 
rights, they are entitled to organize a political party 
to be composed entirely o f Mexicans, and no one 
would, we think, contend that they did not have this 
inalienable constitutional right.

We have in Texas some 300,000 Republican voters, 
who are adherents to and believers in the principles 
o f the Republican party. While this number is not 
sufficient to elect officers in most districts or pre­
cincts o f the State, no one would contend that they 
are not entitled to create a political party and limit 
their membership to Republicans.

By the same token and reason there cannot, we 
submit, be any reason why the white Democrats in 
Texas may not organize for themselves a political 
party in Texas. Whether this is wise is not a ques­
tion for the courts to determine, and we submit is 
a matter over which the courts cannot within the 
Constitution exercise or control their actions. For 
the courts to say that any group o f citizens cannot 
meet peacefully and quietly and nominate candidates 
for political offices would be to deny them the in­
alienable rights for which our forefathers fought 
and the principles upon which this Government is 
founded.

The above general principles, we think, have been



— 12—

definitely settled by the decisions o f the Supreme 
Court, as well as by the courts o f last resort in Texas. 
This court in Grovey V. Townsend, supra, stated:

“ Fourth. The complaint states that candi­
dates for the offices of Senator and Representa­
tive in Congress were to be nominated at the 
primary election of July 9, 1984, and that in 
Texas nomination by the Democratic party is 
equivalent to election. These facts (the truth 
of which the demurrer assumes) the petitioner 
insists, without more, make out a forbidden dis­
crimination. A  similar situation may exist in 
other states where one or another party includes 
a great majority o f the qualified electors. The 
argument is that a Negro may not be denied 
a ballot at a general election on account of his 
race or color, if exclusion from the primary ren­
ders his vote at the general election insignifi­
cant and useless, the result is to deny him this 
suffrage altogether. So to say is to confuse the 
privilege of membership in a party with the 
right to vote for one who is to hold a public o f­
fice. With the former the State need have no 
concern, with the latter it is bound to concern 
itself, for the general election is a function of 
the state government and discrimination by the 
state as respects participation by Negroes on ac­
count of their race or color is prohibited by the 
Federal Constitution.”

In the case of Drake V. Executive Committee of the 
Democratic Party, 2 Fed. Supp. 486, the District 
Court in Texas held that the Democratic party in 
Houston could exclude Negroes from  voting in the 
primary election to nominate city officers, and used 
this language:



— 13—

“ (4, 5). This then brings forward the ques­
tion of whether, in the absence o f a controlling 
statute o f the state, a political party in Texas, 
acting through its convention, committee, or 
otherwise under party rules and regulations, has 
inherent power to prescribe the qualifications of 
its members. I think this must be answered in 
the affirmative, Nixon v. Condon, 49 F. (2d) 
1012, White v. Democratic Executive Commit­
tee, 60 F. (2) 973, and that the action o f defend­
ant, city executive committee (acting not under 
powers derived from the state, and not as an 
agency of the state, but presumably in accord­
ance with rules and regulations of the Demo­
cratic Party), in so denying plaintiff the right 
to vote in such primary election, does not violate 
plaintiff's rights under the Fourteenth Amend­
ment.”

In the case of Bell V. Hill, 123 Tex. 531, 74 S. W. 
(2) 113, the State o f Texas, speaking through its 
then Chief Justice, Judge Cureton, discussed at 
length the organization o f political parties, what 
they were, and their functions, and the power o f a 
political convention to determine its membership, 
and to restrict its membership to white citizens. The 
case involved a mandamus, wherein the petitioners, 
Beil and Jones, who were Negroes, sought a manda­
tory injunction against the members of the Demo­
cratic Executive Committee in Jasper County to re­
quire them to permit the petitioners to vote in the 
Democratic primaries in 1934. The court used this 
language, beginning with the last paragraph on 
column 1, p. 119, 74 S. W.

“We come now to the constitutional basis of



- 14-

political parties, as well as other voluntary as­
sociations. That basis is found in the first sec­
tion of the Bill of Rights, the First Amendment 
to the Constitution of the United States, which 
declares: ‘CONGRESS SHALL MAKE NO 
LAW  respecting an establishment of religion, 
or prohibiting the free exercise thereof; or 
ABRIDGING the freedom of speech, or of the 
press; or the RIGHT OF THE PEOPLE 
PEACEABLY TO ASSEMBLE, AND TO PE­
TITION THE GOVERNMENT FOR A RE­
DRESS OF GRIEVANCES.’

a  *  *  *

“ In United States v. Cruikshank, 92 U. S., 542, 
the Supreme Court of the United States, in an 
opinion by Chief Justice Waite, declared: ‘The 
right o f the people peaceably to assemble for the 
purpose of petitioning Congress for a redress 
o f grievances, or for any thing else connected 
with the powers or the duties of the national 
government, is an attribute o f national citizen­
ship, and, as such, under the protection of, and 
guaranteed by, the United States. The very 
idea of a government, republican in form, im­
plies a right on the part o f its citizens to meet 
peaceably for consultation in respect to public 
affairs and to petition for a redress of griev­
ances.’

“ Section 27 of the Bill o f Rights, art. 1, Consti­
tution of Texas, reads: ‘The citizens shall have 
the right, in a peaceable manner, to assemble to­
gether for their common good; and apply to 
those invested with the powers o f government 
for redress o f grievances or other purposes, by 
petition, address or remonstrance.’



— 15—

“ The applicability of this section of the Bill of 
Rights to political associations is made manifest 
when we consider section 2 of the Bill o f Rights, 
which declares: ‘All political power is inherent 
in the people, and all free governments are 
founded on their authority, and instituted for 
their benefit. The faith of the people of Texas 
stands pledged to the preservation o f a republi­
can form of government, and, subject to this 
limitation only, they have at all times the in­
alienable right to alter, reform or abolish their 
government in such manner as they may think 
expedient/

U * * *

“ (3, 4) Since the right to organize and main­
tain a political party is one guaranteed by the 
Bill o f Rights of this state, it necessarily follows 
that every privilege essential or reasonably ap­
propriate to the exercise of that right is like­
wise guaranteed, including, of course, the privi­
lege o f determining the policies of the party and 
its membership. Without the privilege of de­
termining the power o f 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 de­
termine its policies, of necessity are to be exer­
cised by the State Convention of such party, and 
cannot, under any circumstances be conferred 
upon a state or governmental agency.

M ♦ ♦ ♦

“ (8) * * * . There is no limitation contained 
in article 3167 with reference to declarations of



- 16-

policy by a State Democratic Convention called 
for the purpose of electing delegates to a Nation­
al Convention. Necessarily such convention has 
the same power and authority to determine the 
membership o f the party as any other State 
Convention of the party would have. The sta­
tute does not in any way attempt to limit the 
power o f such Convention; and, indeed, under 
our view of the Bill o f Rights, the Legislature 
could not limit its power with reference to either 
policies or membership. A National Party Con­
vention necessarily formulates a platform and 
policies, and if  the will of a state party is to be 
made known to a National Convention, it neces­
sarily has the power to formulate its policies 
and define its membership.”

In Scurry v. Nicholson, 9 S. W. (2 ) 747, the Court 
of Civil Appeals in holding that a political party 
could determine its membership and fix  its policies 
stated:

“ (4-6) We think it must be conceded that, 
in the absence of some legislative interdict, that 
the Democratic executive committee o f any sin­
gle county may properly enforce a rule or regu­
lation prescribed and enforced by the supreme 
powers of the organization, and it is common 
knowledge, o f which we may take judicial notice, 
that, in the late state Democratic convention, 
that body unhesitatingly refused to recognize 
and ousted delegates from a number of counties, 
including Tarrant county, who had avowed their 
purpose o f supporting the nominees o f the Re­
publican Party for President and Vice Presi­
dent. It is likewise so known to us that the 
Democratic executive committee o f the nation



— 17—

peremptorily ousted and named another in place 
o f a member o f the national Democratic execu­
tive committee from the same county on the 
same ground. * * *

In White v. Lubbock", 30 S. W. (2 ) 722, the Court 
in discussing the power of the Democratic Party 
to determine who should vote in its primary elec­
tions, used the following language:

“ (3-5) In a state like Texas, where the politi­
cal parties have not by law been made either to 
perform any governmental function or to consti­
tute any governmental agency by the payment 
by the State of their expenses o f operation, or 
otherwise, but have only been regulated— how­
ever elaborately—as to how they shall elect their 
nominees (Waples v. Marrast, 108 Tex. 5), they 
are not state instrumentalities, but merely bod­
ies of individuals banded together for the propa­
gation of the political principles or beliefs that 
they desire to have incorporated into the public 
policies of the government, and as such have the 
power, beyond statutory control, to prescribe 
what persons shall participate as voters in their 
conventions or primaries; in no event, therefore, 
did the inveighed-against course of both the 
state and Harris county managers o f the Demo­
cratic Party of Texas in so barring all but white 
Democrats from its primaries constitute action 
by the State o f Texas itself that was interdicted 
by the invoked provisions of the National Con­
stitution, but only the valid exercise through its 
proper officers of such party’s inherent power 
(recognized but not created by R. S. article 
3107) to determine who should make up the 
membership o f its own private household. * * * .”



- 18-

In Love v. Buckner, 121 Tex. 369,49 S. W. (2 ) 425, 
the Supreme Court of Texas held that the Demo­
cratic State Executive Committee was authorized 
to require the voters to take the specific pledge to 
support the nominees o f the Democratic party for 
President and Vice-President before they could vote 
in the Democratic convention held to elect delegates 
to the national convention and used this language:

“We do not think it consistent with the his­
tory and usages of parties in this state nor with 
the course of our legislation to regard the re­
spective parties or the State Executive Commit­
tee has denied all power over the party member­
ship, conventions, and primaries, save where 
such power may be found to have been expressly 
delegated by statute. On the contrary, the sta­
tutes recognize party organizations including 
the State committees, as the repositories o f 
party power, which the Legislature has sought 
to control or regulate only so far as was deemed 
necessary for important governmental ends 
such as purity o f the ballot and integrity in the 
ascertainment and fulfillment of the party will 
as declared by its membership. * * *

“ It is true the statute forbids participation in 
the precinct primary conventions of those who 
are not certified qualified voters, but the only 
voters_ referred to throughout the Article as 
comprising the precinct primary convention, 
and who can determine the real and effective 
party decisions are the voters o f said political 
party.”

Petitioners in their brief make the statement that



19—

any white citizen of Texas can vote in the Demo­
cratic primary election, basing this statement, we 
presume, upon the testimony of Mr. Allwright, one 
o f the respondents, who was the election judge in 
the precinct in which the petitioners offered to vote, 
wherein Allwright testified that if any white citi­
zen came to the polls and offered to vote he himself 
did not question them, but permitted them to vote.

Article 3109 of the Revised Statutes of Texas pro­
vides that in all general primary elections there 
shall be an official ballot prepared by the party hold­
ing same.

Article 3110 of the Revised Statutes of Texas pro­
vides specifically that the official ballot may have 
printed thereon the following primary test: “  ‘ I am a 
(insert 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 bal­
lot which shall not contain such printed test above 
the names of the candidates thereon shall be void 
and shall not be counted.”

We submit that under the authorities above cited 
the election judge has the right to presume that a 
man who presents himself as a voter is in fact a mem­
ber o f the Democratic party and will support its 
nominees, and that no one who is a Republican or 
who is affiliated with any other political party will 
offer to vote. I f any voter’s right to vote is chal­
lenged on the ground that he is not a member of the 
party, then the judge can refuse to permit the vote



— 20—

to be cast unless the voter will take the required 
pledge.

In Love v. Buckner, 49 S. W. (2) 426, the court 
at page 426, column 1, stated:

“ In our opinion, a voter cannot take part in a 
primary or convention of a party to name party 
nominees without assuming an obligation bind­
ing on the voter’s honor and conscience. Such 
obligation inheres in the very nature of his act, 
entirely regardless o f any express pledge, and 
entirely regardless of the requirements of any 
statute. * * * . Being unenforcible through 
the court, the obligation is a moral obligation. 
Westerman v. Mims, 116 Tex. 371.

“The opinion in Westerman v. Mins quoted 
with approval the decision of the Supreme Court 
of Louisiana in the case o f State Ex rel v. Michel, 
Secretary o f State, 46 So. 430, to the effect that 
‘the voter by participating in a primary implied­
ly promises and binds himself in honor to sup­
port the nominee, and that a statute which ex­
acts from him an express promise to that effect 
adds nothing to his moral obligation and does 
not undertake to add anything to his legal ob­
ligation. The man who cannot be held by a 
promise which he knows he has impliedly giver- 
will not be held by an express promise.’ ”

As is revealed by a number o f the opinions o f the 
Supreme Court of Texas, hereinabove referred to 
and quoted from, unquestionably the Democratic 
party in Texas can exclude from  participation in its 
primary election all voters who refuse to take the



- 21-

pledge of allegiance to the party, or who refuse to 
support the nominee of the primary election or con­
vention at the general election to be held thereafter. 
Whether the party exercises this right or privilege 
is o f no concern to the petitioners in this case. It is 
true, however, as is shown by the cases hereinbefore 
quoted from, that the Democratic party in Texas 
has definitely passed resolutions restricting its mem­
bership to those white citizens who are Democrats 
and who are willing to take a pledge, to support the 
nominees of the convention or primary election.

GROVEY V. CLASSIC CASES

While we do not consider it necessary to attempt 
to reconcile the opinions o f this court in the case of 
Grovey v. Townsend, 295 U. S. 45, and United States 
V. Classic, 313 U. S. 299, we submit that the facts in 
the two cases are so different that the opinion in 
one does not necessarily control the opinion in the 
other case.

The primary question determined in the Grovey V. 
Townsend case was that an election judge holding 
the primary election in Texas for the Democratic 
party was not a state officer, and that the Demo­
cratic party could for itself determine the kind and 
class of voters that could participate in the Demo­
cratic party, without violating the Federal Constitu­
tion or the Constitution o f the State of Texas.

In the case of United States V. Classic it appears



— 22—

the State o f Louisiana had made the primary elec­
tion law a state matter, paid for by the State, and 
controlled by the State, and it was charged that one 
of the election judges holding said primary election 
counted votes cast for a candidate for Congress for 
another and entirely different candidate. By reason 
of this alleged open fraud and violation o f law, the 
election judge was indicted under the Federal crim­
inal statutes, and this court held that in such an elec­
tion, in order to maintain the purity o f the ballot, 
the election judge could not claim immunity by rea­
son of the fact that the election being held in which 
he fraudulently and criminally counted ballots was 
a Democratic primary.

While it is not necessary to determine the ques­
tion, it may be that in a Democratic primary held 
in Texas, or a Republican primary held in any state 
where the nomination o f the party candidate as a 
matter of history results in the election of such can­
didate, (said primary election being held under the 
laws of the respective state governing same), if  the 
election judge should fraudulently, deliberately and 
criminally count ballots cast for one candidate 
for Congress for another candidate and thereby de­
feat the nomination of a particular candidate for 
Congress, the judge could be prosecuted under the 
Federal statutes. This question is not before the 
court in the case at bar, and therefore need not be 
determined.

In Texas the State has not attempted to control 
who may organize a political party. It has passed



- 23-

most stringent laws regulating any and all political 
parties with reference to the manner o f holding 
primary election or conventions for the nomination 
o f candidates for the respective offices, including 
Presidential electors, Senators, Congressmen and 
all State officers. The State of Texas is not interest­
ed in who constitutes a party, or what class of citi­
zens may become members of any particular party. 
It is interested, o f course, in maintaining the purity 
and integrity of the ballot or elections held by any 
party.

Article 1, section 2, and Article 17 o f the Constitu­
tion of the United States secures to the citizens of the 
several States who are “ qualified electors for the 
most numerous branch of the state legislature” the 
right to choose the state’s representatives to the Con­
gress.

Petitioners contend that these provisions secure 
to such qualified electors the right to participate in 
the procedure by which members of a private politi­
cal organization choose its candidates, at least where 
the party’s candidates are almost invariably elected.

The Attorney General submits that this contention 
is both unsound and untenable.

It is familiar doctrine that provisions in the Con­
stitution preserving to the people certain rights and 
privileges were designed to render such rights and 
privileges immune from denial or abridgment by 
governmental action. Before placing a construction



•24—

on the provisions involved in this case which assumes 
a purpose to grant a right immune from private 
abridgment, it is proper, we think, to consider the 
extremes to which such construction must inevitably 
lead. Since the problem of construction is to ascer­
tain the intent, we must be prepared to hold that the 
inevitable consequences of a particular construction 
were intended, else we are not at liberty to adopt the 
construction.

The Constitution prescribes the qualifications of 
those to whom it gives the right to choose the state’s 
representatives to the Congress. Those qualifica­
tions must be the same as those required by the State 
to render them “ qualified electors for the most 
numerous branch of the state legislature.”  I f those 
possessing such qualifications are accorded by the 
Constitution the right to participate in the procedure 
for selecting candidates established by a private 
political organization, indisputably such private 
political organization may not prescribe other or dif­
ferent qualifications as a prerequisite to the exer­
cise o f the right. Such organization may not accord 
the right only to qualified electors who entertain 
certain political beliefs, denying it to qualified elec­
tors who espouse a different set o f political prin­
ciples.

The effect is to deny to those “ qualified electors” 
holding certain political beliefs in common the right 
to organize and select candidates to advocate those 
beliefs. For, i f  participation in the procedure cannot 
be restricted to those o f common political ideals,



- 25-

there can be no assurance that the candidates nom­
inated will represent those ideals.

The nomination for election o f candidates espous­
ing a particular set of political principles is the es­
sential function o f the political party. To give the 
Constitution the construction contended for by peti­
tioners is to declare that the people intended to pro­
hibit the organization of political parties, by the 
adoption of that instrument.

Further, we desire to call to the attention o f the 
Court the provisions of Section 2 o f Article 14 of 
the Constitution. This section declares that when 
the right to vote at any election for the choice of 
electors for President and Vice-President, or repre­
sentatives to the Congress, is denied to any of the 
male inhabitants over twenty-one years of age, the 
basis of State representation in Congress shall be 
reduced “ in the proportion which the number of such 
male citizens shall bear to the whole number of male 
citizens twenty-one years o f age in such State.”

If a private political party in a state is invariably 
successful in procuring the election of its candidates 
and through private action of its membership ex­
cludes large numbers of “ qualified electors” from 
participation in the party procedure for selecting 
its candidates, is the State subject to the penalty 
prescribed in Section 2 of Article 14 ? If such “ quali­
fied electors” have a Constitutional right to partici­
pate in the party procedure, it would seem so. Cer­
tainly if  a party primary is an “election” within the



-26-

meaning o f Constitutional provisions granting the 
right to vote, it is an “ election” within the meaning 
o f those provisions prescribing a penalty for deny­
ing that right.

The result would be, if we are correct in this as­
sumption, that the people in adopting the Constitu­
tion intended that the representation of a State in 
the Congress should be subject to reduction on ac­
count of purely private action o f a part o f its citi­
zens.

The extremes to which an adoption of the con­
struction contended for by petitioners lead, we think, 
demonstrate the fallacy of their argument.

If the Constitution secures the right contended 
for  by petitioners, the right is o f a most peculiar 
character, and it is most difficult to determine when 
and under what circumstances it comes into being.

It seems to be urged that the right to participate 
in the party procedure exists where the party is al­
ways successful in procuring the election o f its can­
didates. At what stage of the political life of a party 
would this “ right” come into existence? Will suc­
cess on the first occasion after the organization o f 
the party give rise to the right, or must there be 
a longer period of gestation? If, after a long pe­
riod of success, the party loses an election, is the 
right lost ? For what period does it remain dormant ; 
how much success, after a loss, does it take to revive 
the right? I f a party is always successful in State­



- 27-

wide elections, but not in particular district elec­
tions, does the “ qualified elector” have the right to 
participate in the primary for the selection o f candi­
dates for the State-wide election but not for the selec­
tion of candidates for the district election ?

Conceding the invariable success of the “ Demo­
cratic” party, over a long period of years, how is it 
to be determined that the party is the same through 
that period? Is the test of party identity the mere 
“ party label” ? Or does the identity of the party 
through the period depend on substantial sameness 
o f membership, or upon substantial sameness of 
principles through the years, or upon some combina­
tion of characteristics?

It is respectfully submitted that the Constitution 
does not grant a right to participate in party pro­
cedure o f a private nature, the existence of which 
depends upon the answer to be made to such fact 
questions.

CONCLUSION

The Attorney General of Texas submits that the 
basic principle announced in all the decisions o f our 
courts relative to the conduct of primary elections 
by political parties to nominate candidates is that 
the party can regulate its policies, and determine 
who shall constitute its membership, unless specific­
ally prohibited by statutory law.

In Texas the Legislature has passed laws to con-



— 28—

trol the primary election in many respects. It has 
not, however, passed any law which in any way pre­
vents the white Democrats or any other group of 
citizens from organizing a political party to nom­
inate candidates for any or all offices to be voted 
upon in the general election.

The Attorney General of Texas prays that the 
judgment of the trial court and the Circuit Court 
be in all things affirmed.

Gerald C. Mann ,
Attorney General of Texas

R. W. Fairchild

George W. Barcus 
Assistant Attorney General
Attorneys for Amicus 

Curiae