Bell v. Arkansas Record and Briefs

    tfUINN V. 6 i, ■
NIXON V. HERN 

; BIS LEV V Wf 
T RUDE AO V, BAR 
rf'OUKION V. HO i.;

RECORD
AND

BRIEFS



m

i













n? n: a: a. o; p.
, . Q ,, 70 FIFTH AVE„

NEW YORK CITY
3ltt tlje Supreme Court of tlyo Uutteu States

OCTOBER TERM, 1913 ■ /
[No. 423]

FRANK GUINN AND J. J. BEAL

v.

THE UNITED STATES.

BRIEF FOR THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE.

MOORFIELD STOREY,
Counsel.



V

\



IN D E X .

P a g e

S t a t e m e n t  o f  C a s e ..............................................................................  1

A r g u m e n t

All discriminations respecting the right to vote on 
account of color unconstitutional...............................  3

Whether the Oklahoma amendment constitutes such a 
discrimination to be determined by its purpose and 
effect, and not by its phraseology alone...................  6

The undoubted purpose and effect of the amendment 
to discriminate against colored voters........................... 12



TABLE OF CASES CITED.

P age

Anderson v. Myers, 182 Fed. Rep. 223 ...............................  15
Bailey v. Alabama, 219 U. S. 2 1 9 ....................................... 6
Brimmer v. Rebman, 138 U. S. 7 8 ....................................... 11
Collins v. New Hampshire, 171 U. S. 3 0 ...............................  8
Chy Lung v. Freeman, 92 U. S. 275 ...................................• 11
Galveston, Harrisburg & San Antonio Railway v. Texas,

210 U. S. 2 1 7 ..................................................................  7
Giles v. Harris, 189 U. S. 475 ............................................... 13
Giles v. Teasley, 193 U. S. 146 ............................................... 13
Graver v. Faurot, 162 U. S. 435 ........................................... 13
Hannibal & St. Joseph Railroad v. Husen, 95 U. S. 465 . . 11
Henderson v. Mayor of New York, 92 U. S. 259 ...............  10
Lochner v. New York, 198 LT. S. 4 5 ....................................... 7
Maynard v. Hecht, 151 LT. S. 324 ....................................... 13
Minnesota v. Barber, 136 U. S. 313....................................... 11
Mobile v. Watson, 116 U. S. 289 ........................................... 8
New Hampshire v. Louisiana, 108 U. S. 7 6 .......................  8
People v. Albertson, 55 N. Y. 5 0 ........................................... 10
People v. Compagnie Generate Transatlantique, 107 U. S.

5 9 .....................................................................................  15
Postal Telegraph-Cable Co. v. Taylor, 192 U. S. 64 . . . . 8
Schollenberger v. Pennsylvania, 171 U. S. 1 .......................  11
Scott v. Donald, 165 U. S. 5 8 ............................................... 11
Smith v. St. Louis & Southwestern Railway, 181 U. S.

248   11
State v. Jones, 66 Ohio St. 453 ............................................... 10
Strauder v. West Virginia, 100 U. S. 303 ...........................  6
Voight v. Wright, 141 U. S. 62 ...............................................  11
Williams v. Mississippi, 170 U. S. 213...................................  13
Yarbrough, Ex parte, 110 U. S. 651......................................  13



3ln the Supreme Olmtrt nf the Mtttirh States
OCTOBER TERM, 1913-

[No. 423]

FRANK GUINN AND J. J. BEAL
v.

THE UNITED STATES.

BRIEF FOR THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE.

STA TE M E N T OF FACTS.

This case comes before this court upon a certificate from 
the Circuit Court of Appeals for the Eighth Circuit asking 
instructions upon two questions relating to the validity of an 
amendment to the constitution of Oklahoma adopted in 
1910 and reading as follows:—

“ No person shall be registered as an elector of this State, 
or be allowed to vote in any election herein, unless he be 
able to read and write any section of the constitution of the 
State of Oklahoma. And no person who was on January 
1, 1866, or at any time prior thereto, entitled to vote under 
any form of government, or who at that time resided in some 
foreign nation, and no lineal descendant of such person 
shall be denied the right to register and vote because of his 
inability to so read and write sections of such constitution.



2

Precinct election inspectors having in charge the registra­
tion of electors shall enforce the provisions of this section 
at the time of registration, provided registration be required. 
Should registration be dispensed with, the provisions of this 
section shall be enforced by the precinct election officer when 
electors apply for ballots to vote.”

Previous to this amendment, the qualifications of elec­
tors had been defined in that constitution thus (Art. I l l ,
§ 1 ) : -

‘ ‘ The qualified electors of the State shall be male citizens 
of the United States, male citizens of the State, and male 
persons of Indian descent native of the United States, who 
are over the age of twenty-one years, wUo have resided in 
the state one year, in the county six months, and in the elec­
tion precinct thirty days next preceding the election at which 
any such elector offers to vote.”

The questions certified are as follows:—
“ 1. Was the amendment to the constitution of Okla­

homa, heretofore set forth, valid?
“ 2. Was that amendment void in so far as it attempted 

to debar from the right or privilege of voting for a quali­
fied candidate for a Member of Congress in Oklahoma, un­
less they were able to read and write any section of the con­
stitution of Oklahoma, negro citizens of the United States 
who were otherwise qualified to vote for a qualified candi­
date for a Member of Congress in that State, but who were 
not, and none of whose lineal ancestors was, entitled to vote 
under any form of government on January 1, 1866, or at 
any time prior thereto, because they were then slaves? ”

The vital importance of these questions to every citizen 
of the United States, whether white or colored, seems 
amply to warrant the submission of this brief.



3

ARG U M EN T.

The amendment to the constitution of Oklahoma now 
before the court is one of many similar provisions adopted 
in certain states, varying in their language but intended to 
accomplish the same object, and that an object forbidden 
by the constitution of the United States.

The provisions of that constitution are clear:—
“ 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 per­
son within its jurisdiction the equal protection of the laws” 
(Fourteenth Amendment, § 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” (Fifteenth Amendment, § 1).

An amendment to a state constitution is a law within the 
language of the Fourteenth Amendment, and it certainly is 
action by the state.

While in terms no reference is made in the Oklahoma 
amendment to race or color, that amendment abridges and 
is intended to abridge the right of colored citizens of the 
United States to vote, and it imposes upon them a con­
dition not imposed upon any other citizens of the state, 
thus denying them the equal protection of its laws. By 
its terms practically every man who is not colored may vote 
without the ability to read and write the constitution of 
Oklahoma. A  great stretch of the imagination is needed 
in order to conceive of a white voter who does not come 
within the classes excepted from this requirement, while



4

with very insignificant exceptions, such as possible descend­
ants of free colored men residing in the free states on Janu- 
uary 1, 1866, every colored voter is excluded.

The language employed is just as effective as if it dis­
tinctly enforced a peculiar disqualification on all descend­
ants of negro slaves. The purpose and effect of such 
amendments as this have been openly avowed, and there 
is not an intelligent man in the United States who is igno­
rant of them. If it is possible for an ingenious scrivener 
to accomplish that purpose by careful phrasing, the pro­
visions of the Constitution which establish and protect the 
rights of some ten million colored citizens of the United 
States are not worth the paper on which they are written, 
and all constitutional safeguards are weakened.

The principles governing this case are well settled. It 
would hardly be contended that the Fifteenth Amendment 
was not violated if the constitution of Oklahoma had been 
amended so as to read as follows:—

“ No person shall be registered as an elector of this State, 
or be allowed to vote in any election herein, unless he be 
able to read and write any section of the constitution of 
the State of Oklahoma. And no white person shall be 
denied the right to register and vote because of his inability 
to so read and write sections of such constitution.”

The fact that the discrimination against colored men took 
the shape of exempting white voters from the restriction, 
which the first sentence purported to impose upon all 
citizens alike, would be immaterial.

While the Fifteenth Amendment may not necessarily 
confer an affirmative right to vote, it does require in the 
plainest terms that, if the right is granted at all, it must be 
extended on the same terms to white and colored citizens 
alike. The well-known language of Mr. Justice Bradley



5

with reference to the analogous provisions of the Four­
teenth Amendment is equally pertinent here:—

“ It [the Fourteenth Amendment! ordains that no State 
shall deprive any person of life, liberty or property, without 
due process of law, or deny to any person within its juris­
diction the equal protection of the laws. What is this but 
declaring that the law in the States shall be the same for the 
black as for the white; that all persons, whether colored 
or white, shall stand equal before the laws of the States, and, 
in regard to the colored race, for whose protection the amend­
ment was primarily designed, that no discrimination shall 
be made against them by law because of their color? The 
words of the amendment, it is true, are prohibitory, but they 
contain a necessary implication of a positive immunity, or 
right, most valuable to the colored race,—the right to exemp­
tion from unfriendly legislation against them distinctively 
as colored,—exemption from legal discriminations, im­
plying inferiority in civil society, lessening the security of 
their enjoyment of the rights which others enjoy, and dis­
criminations which are steps towards reducing them to the 
condition of a subject race.

“ That the West Virginia statute respecting juries—the 
statute that controlled the selection of the grand and petit 
jury in the case of the plaintiff in error—is such a discrimina­
tion ought not to be doubted. Nor would it be if the persons 
excluded by it were white men. If in those States where 
the colored people constitute a majority of the entire popu­
lation a law should be enacted excluding all white men from 
jury service, thus denying to them the privilege of parti­
cipating equally with the blacks in the administration of 
justice, we apprehend no one would be heard to claim that 
it would not be a denial to white men of the equal protection 
of the laws. Nor if a law should be passed excluding all 
naturalized Celtic Irishmen, would there be any doubt of 
its inconsistency with the spirit of the amendment. The 
very fact that colored people are singled out and expressly 
denied by a statute all right to participate in the adminis­



6

tration of the law, as jurors, because of their color, though 
they are citizens and may be in other respects fully qualified, 
is practically a brand upon them, affixed by the law, an as­
sertion of their inferiority, and a stimulant to that race 
prejudice which is an impediment to securing to indi­
viduals of the race that equal justice which the law aims to 
secure to all others.”

Strauder v. West Virginia, 100 U. S. 303, 307.

The statute considered in that case did not expressly 
declare that colored men should not serve as jurors, but 
simply provided that “ all white male persons”  should be 
liable to serve as jurors, omitting all mention of negroes. 
It was condemned none the less.

It is likewise plain that the mere form of words is of no 
consequence, and that, if the effect of the provision in ques­
tion is substantially the same as if it read as just suggested, 
the fact that the use of the words “ white”  and “ colored” 
is carefully avoided is of no consequence. This rule has 
been repeatedly applied by this and other courts when hold­
ing invalid statutes artfully designed to accomplish purposes 
forbidden by the Constitution while evading the letter of its 
prohibitions.

In Bailey v. Alabama, 219 U. S. 219, it was held that 
§ 4730 of the Code of Alabama as amended by certain stat­
utes was repugnant to the Thirteenth Amendment, because, 
as the court said (at p. 238):—

“ We cannot escape the conclusion that, although the 
statute in terms is to punish fraud, still its natural and in­
evitable effect is to expose to conviction for crime those who 
simply fail or refuse to perform contracts for personal ser­
vice in liquidation of a debt, and judging its purpose by its 
effect that it seeks in this way to provide the means of com­
pulsion through which performance of such service may be 
secured.”



7

In Galveston, Harrisburg & San Antonio Railway v. 
Texas, 210 U. S. 217, this court said, with reference to a 
statute imposing a tax upon railroad companies equal to 
one per cent, o f their gross receipts (at p. 227):—

“ A practical line can be drawn by taking the whole scheme 
of taxation into account. This must be done by this court 
as best it can. Neither the state courts nor the legislature, 
by giving the tax a particular name or by the use of some 
form of words, can take away our duty to consider its nature 
and effect. If it bears upon commerce between the States 
so directly as to amount to a regulation in a relatively im­
mediate way, it will not be saved by name or form.”

• In Lochner v. New York, 198 U. S. 45, it was said with 
reference to a statute limiting the hours of work in bakeries 
(at p. 61):—

“ We do not believe in the soundness of the views which 
uphold this law. On the contrary, we think that such a 
law as this, although passed in the assumed exercise of the 
police power, and as relating to the public health, or the 
health of the employes named, is not within that power, 
and is invalid. The act is not, within any fair meaning of 
the term, a health law, but is an illegal interference with 
the rights of individuals, both employers and employes, 
to make contracts regarding labor upon such terms as they 
may think best, or which they may agree upon with the 
other parties to such contracts. Statutes of the nature of 
that under review, limiting the hours in which grown and 
intelligent men may labor to earn their living, are mere 
meddlesome interferences with the rights of the individual, 
and they are not saved from condemnation by the claim 
that they are passed in the exercise of the police power 
and upon the subject of the health of the individual whose 
rights are interfered with, unless there be some fair ground, 
reasonable in and of itself, to say that there is material 
danger to the public health or to the health of the employes, 
if the hours of labor are not curtailed.”



8

In Postal Telegraph-Cable Co. v. Taylor, 192 U. S. 64, it 
was held that a municipal ordinance purporting to impose 
a license fee for purposes of inspection on telegraph com­
panies was void as being, in fact, an attempt to tax inter­
state commerce. The court said (at p. 73): —

“ Courts are not to be deceived by the mere phraseology 
in which the ordinance is couched.”

In Collins v. New Hampshire, 171 U. S. 30, it was held 
that a statute forbidding the sale of oleomargarine unless 
colored pink was unconstitutional because amounting to 
an absolute prohibition. The court said (at p. 33):—

“ The direct and necessary result of a statute must be 
taken into consideration when deciding as to its validity, 
even if that result is not in so many words either enacted 
or distinctly provided for. In whatever language a statute 
may be framed, its purpose must be determined by its 
natural and reasonable effect. Henderson v. Mayor of New 
York, 92 U. S. 259; Morgan’s Steamship Co. v. Louisiana, 
118 U. S. 455, at 462. Although under the wording of this 
statute the importer is permitted to sell oleomargarine 
freely and to any extent, provided he colors it pink, yet the 
permission to sell, when accompanied by the imposition 
of a condition which, if complied with, will effectually pre­
vent any sale, amounts in law to a prohibition.”

In New Hampshire v. Louisiana, 108 U. S. 76, it was held 
that the constitutional prohibition of suits against a state 
by citizens of another state cannot be evaded by bringing 
suit in the name of the latter state fcr the benefit of the 
real claimants.

In Mobile v. Watson, 116 U. S. 289, it was held that the 
obligations of a municipal corporation cannot be evaded by 
dissolving the corporation and incorporating substantially



9

the same people as a municipal body under a new name for 
the same general purposes, though the boundaries of the 
new corporation differ from those of the old one.

The constitution of New York (Art. X , § 2) provides 
that “ all city, town and village officers . . . shall be elected 
by the electors of such cities, towns and villages, or of some 
division thereof, or appointed by such authorities thereof as 
the legislature shall designate for that purpose.”  A stat­
ute abolished the police force of Troy and established the 
so-called “ Rensselaer Police District,”  to be administered 
by officers appointed by the governor. This district con­
sisted of the city of Troy together with three small patches 
of territory adjoining the city on different sides and em­
bracing in all less than one square mile. It was held that 
the act was void as an attempt to evade the constitutional 
requirement quoted above, the court saying (at p. 55 and
p. 68):—

“ A written Constitution must be interpreted and effect 
given to it as the paramount law of the land, equally obliga­
tory upon the legislature as upon other departments of 
government and individual citizens, according to its spirit 
and the intent of its framers, as indicated by its terms. 
An act violating the true intent and meaning of the instru­
ment, although not within the letter, is as much within the 
purview and effect of a prohibition as if within the strict 
letter; and an act in evasion of the terms of the Constitu­
tion, as properly interpreted and understood, and frustrating 
its general and clearly expressed or necessarily implied pur­
pose, is as clearly void as if in express terms forbidden. A 
thing within the intent of a Constitution or statutory enact­
ment is, for all purposes, to be regarded as within the words 
and terms of the law. . . .

“ The experiment in the act before us was to see with how 
little disturbance of the political organizations of the towns 
adjacent to the city of Troy, or the change of boundary lines, 
a police district could be established which would abide



10

the tests of the Constitution, and, as that is patent upon 
the face of the act, it cannot be sustained as a valid and 
effectual exercise of the power claimed to exist in the legis­
lature, to constitute a single police district from the whole 
or a part of several distinct municipal organizations, each 
constituting a substantial part of the new district, and being 
within the necessities leading to its creation, and having 
the benefits of the new organization.”

People v. Albertson, 55 N. Y. 50.

In State v. Jones, 66 Ohio St. 453, it was held that 
a statute designed to reorganize the police force of Toledo 
under color of regulating the police force “ in cities of the 
third grade of the first class”  was repugnant to the 13th 
article of the constitution of Ohio, which required that the 
general assembly should “ pass no special act conferring 
corporate powers.”  The court said (at p. 487):—

“ In view of the trivial differences in population, and of the 
nature of the powers conferred, it appears . . . that the 
present classification cannot be regarded as based upon 
differences in population, or upon any other real or supposed 
differences in local requirements. Its real basis is found in 
the differing views or interests of those who promote legis­
lation for the different municipalites of the state. An in­
tention to do that which would be violative of the organic 
law should not be imputed upon mere suspicion. But the 
body of legislation relating to this subject shows the legis­
lative intent to substitute isolation for classification, so that 
all the municipalities of the state which are large enough to 
attract attention shall be denied the protection intended 
to be afforded by this section of the constitution.”

In Henderson v. Mayor of New York, 92 U. S. 259, with 
reference to a statute purporting to be designed as a pro­
tection against the importation of paupers, the court 
said (at p. 268):—



11

“ In whatever language a statute may be framed, its pur­
pose must be determined by its natural and reasonable effect; 
and if it is apparent that the object of this statute, as judged 
by that criterion, is to compel the owners of vessels to pay 
a sum of money for every passenger brought by them from 
a foreign shore, and landed at the port of New York, it is 
as much a tax on passengers if collected from them, or a tax 
on the vessel or owners for the exercise of the right of landing 
their passengers iu that city, as was the statute held void 
in the Passenger Cases [7 How. 283].”

In Smith v. St. Louis & Southwestern Railway, 181 U. S. 
248, the court said, with reference to certain state quaran­
tine regulations (at p. 257):—

“ What . . .  is a proper quarantine law—what a proper 
inspection law in regard to cattle—has not been declared. 
Under the guise of either a regulation of commerce will not 
be permitted. Any pretence or masquerade will be dis­
regarded and the true purpose of a statute ascertained.”

On these principles this court has repeatedly held that it 
must look into the practical working of statutes purporting 
to establish inspection or quarantine regulations, and has 
declared such statutes invalid if they effect a substantial 
prohibition of interstate commerce or virtually impose a 
tax thereon, however carefully the real purpose may be 
concealed.

Chy Lung v. Freeman, 92 U. S. 275.
Hannibal & St. Joseph Railroad v. Ilusen, 95 

U. S. 465, 473.
Minnesota v. Barber, 136 U. S. 313.
Brimmer v. Rebman, 138 U. S. 78.
Voiglit v. Wright, 141 U. S. 62.
Scott v. Donald, 165 U. S. 58, 98.
Schollenberger v. Pennsylvania, 171 U. S. 1.



12

In determining how far this firmly established doctrine 
applies to the present case, it is important to analyze the 
amendment to the constitution of Oklahoma now in question. 
In substance, this amendment provides that, without re­
gard to educational qualifications, any adult male citizen 
may vote unless (1) he was on January 1, 1866, a resident of 
the United States, but not then entitled to vote in any state, 
or unless (2) he is a descendant of such a person. In other 
words, a negro who was born in the United States and 
whose ancestors may have resided here for many genera­
tions cannot vote unless he can read and write any sec­
tion of the Oklahoma constitution, but a native of Siberia, 
for example, who resided in that country on January 1, 
1866, or whose ancestors then resided there, is entitled to 
vote if he has been in the United States for the short period 
necessary to obtain naturalization, although he m ay be 
unable to read or write, and although he and all his an­
cestors may have been living in a state of barbarism until 
within five or six years ago.

This extraordinary result makes the purpose of the amend­
ment almost too plain for argument. If it were not for the 
exemption of foreigners and their descendants, it might con­
ceivably be argued that the familiarity with our institutions 
which may be inferred from the fact that a person is 
descended from one who was a voter in 1866 might have 
been deemed a valid reason for allowing such a person to 
vote, even though he could not read or write. Such a 
contention, it is submitted, would be altogether frivolous. 
The choice of January 1, 1866, as the decisive date is in 
itself enough to show conclusively what the real purpose 
of the amendment was.

But not even this flimsy argument is open as the case 
now stands. The effect of the amendment is to allow almost 
anybody to vote, whatever his education or extraction, unless 
he happens to be a negro, for it is as well known to the Court



13

as it was to the framers of the amendment that practically 
all residents of the United States, other than negroes, en­
joyed the right to vote in 1866.

There is no decision by this Court tending to uphold the 
amendment now in question. In Williams v. Mississippi, 
170 U. S. 213, the suffrage restrictions of the Mississippi 
constitution were considered. It was held that the pro­
vision that persons, who could understand the constitution 
when read to them, should be allowed to vote did not on its 
face discriminate between the races, and that, while such 
discrimination was possible through partiality on the part 
of the registrars, this possibility did not of itself offend 
against the Fourteenth and Fifteenth Amendments. The 
decision has, therefore, no application to the case at bar, 
since here the discrimination, if any there be, appears on 
the face of the amendment to the constitution of Oklahoma, 
and in no way depends upon the determination of the regis­
trars or other officers. The two cases relating to the Ala­
bama constitution— Giles v. Harris, 189 U. S. 475, and 
Giles v. Teasley, 193 U. S. 146— went off on questions of 
procedure which are of no moment in the present case, as 
this is a prosecution for the violation of Rev. Stat., § 5508 
(now Section 19 of the Penal Code), which directly applies 
to such a situation.

Ex parte Yarbrough, 110 U. S. 651.

Since the case comes before this court on a certificate, 
the plaintiffs in error are not in a position to raise the objec­
tion taken in the Alabama cases,— i.e., that, if the scheme 
for registration is unconstitutional, the registrars have no 
right to register any one. The Court has no jurisdiction 
to pass upon the whole case on a certificate, and is limited to 
answering the precise questions of law certified.

Maynard v. Hecht, 151 U. S. 324.
Graver v. Faurot, 162 U. S. 435.



14

But, if the point were open, this would not help the de­
fendants because the Alabama cases arose under a new con­
stitution which superseded all previous provisions, so that, 
if the scheme of registration embodied therein was void, 
there was no subsisting legislation on the subject. In the 
present case the offending provisions are found in an 
amendment to the constitution of Oklahoma. If this amend­
ment is invalid, the result is to leave unaffected the original 
provisions of that constitution, under which it was the duty 
of election officers to receive the votes of all races without 
discrimination.

It may be that the amendment affects adversely some few 
persons other than negroes. In so far as it may operate 
against Indians, this only strengthens the conclusion that 
it was intended to be a measure of racial discrimination: 
if it affects any other class of citizens,— e.g., those who 
may have resided in 1866 in some state where they were 
not allowed to vote for want of a necessary property quali­
fication, or who may be the descendants of such persons,—  
this makes it yet more clear that the amendment was not 
framed with any sincere purpose to obtain an intelligent 
electorate.

The case against the amendment is well summed up in 
the following extract from the opinion of Judge Morris in a 
case dealing with a Maryland statute of similar purport:—

“ It is true that the words ‘ race’ and ‘ color’ are not used 
in the statute of Maryland, but the meaning of the law is 
as plain as if the very words had been made use of; and it 
is the meaning, intention, and effect of the law, and not its 
phraseology, which is important. No possible meaning 
for this provision has been suggested except the discrimina­
tion which by it is plainly indicated. . . .

“ There are restrictions of the right of voting which might 
in fact operate to exclude all colored men, which would not 
be open to the objection of discriminating on account of



15

race or color. As, for instance, it is supposable that a prop­
erty qualification might, in fact, result in some localities 
in all colored men being excluded; and the same might be 
the result, in some localities, from an educational test. And 
it could not be said, although that was the result intended, 
that it was a discrimination on account of race or color, but 
would be referable to a different test. But looking at the 
Constitution and laws of Maryland prior to January 1, 
1868, how can it be said, with any show of reason, that any 
but white men could vote then? And how can the court 
close its eyes to the obvious fact that it is for that reason 
solely that the test is inserted in the Maryland act of 1908, 
and is not the court to take notice of the fact that, during 
all the 40 years since the adoption of the fifteenth amend­
ment, colored men have been allowed to register and vote 
in Maryland until the enactment of the Maryland statute 
of 1908?”

Anderson v. Myers, 182 Fed. Rep. 223.

This Court has already taken notice of the object aimed 
at by a historic circumlocution in the federal constitution, 
and it cannot do otherwise in the case at bar.

In People v. Compagnie Generate Transatlantique, 107 
U. S. 59, referring to Art. I, § 9 of the Constitution (which 
relates to “ the migration or importation of such persons as 
any of the States now existing may think proper to adm it” ), 
the Court said:—

“ There has never been any doubt that this clause had 
exclusive reference to persons of the African race. The two 
words 'migration’ and ‘ importation’ refer to the different 
conditions of this race as regards freedom and slavery. 
When the free black man came here, he migrated; when 
the slave came, he was imported.”

Although these considerations are decisive, it may not be 
unprofitable to quote the language of Section 3 of the en­



16

abling act under which Oklahoma was admitted to the 
Union:—

“ The constitution shall be republican in form, and make 
no distinction in civil or political rights on account of race 
or color, and shall not be repugnant to the Constitution 
of the United States and the principles of the Declaration 
of Independence” (34 Stat. 269).

The present case does not call for a determination of the 
important question how far the requirements of the en­
abling act constitute a check on action by the State after 
its admission. If the provisions in question constitute a 
“ distinction in civil or political rights on account of race 
or color,”  they are necessarily “ repugnant to the Con­
stitution of the United States,”  because the right to which 
they relate is one protected against such distinctions by 
the express language of the Constitution.

The enabling act is nevertheless significant as showing 
that Oklahoma obtained admission to the Union only with 
the most definite understanding that the rights of her citi­
zens were to be in no way dependent on considerations of 
race or color. Indeed, the prohibition of distinctions on 
account of race or color indicates a desire on the part of 
Congress to prevent such distinctions as to all civil and 
political rights whatever,— even as to those, if any there 
be, not already protected by the Constitution.

If the amendment now in question can stand, it means 
that a state received into the Union on these stringent 
terms may, immediately after her admission, make sport 
of her solemn obligations and by a transparent subterfuge 
set at naught the Constitution of the United States itself. 
The real question for decision is whether the court is to 
be “ deceived by the mere phraseology”  into permitting 
such a flagrant breach of the fundamental law. To this 
question, it is submitted, there can be only one answer.



17

We respectfully urge that this is not a case where the 
Court should be ingenious in construing the language of the 
amendment in question so as to effectuate the purpose of 
its framers and nullify the Constitution of the United States, 
and that the Court should rather look through all subtleties 
and throw its great weight against all efforts to take away 
the rights which the Constitution secures to every citizen. 
Especially is this true now when on every hand race preju­
dice is exercising a most baleful influence in our affairs 
and in the language of Mr. Justice Bradley opposes “ an 
impediment to securing to individuals of the [colored] 
race that equal justice which the law aims to secure to all 
others” ; when, in a word, it is used to keep men down 
who ought to be helped up.

M OORFIELD STOREY.



■



C E R T IF IC A T E

SUPREME COURT OF THE UNITED STATES. 

October  T e r m , 19 1&

N o

FRANK GUINN AND J. J. BEAL

vs.

THE UNITED STATES.

ON A CER TIFICATE FROM TH E UNITED STATES CIRCUIT COURT OF 
APPEALS FOR TH E EIGHTH CIRCUIT.

FILED JANUARY 13, 1913.

(28,498)





SUPREME COURT OE THE UNITED STATES. 

Oc to b e r  Te r m , 1912.

No. 923.

FRANK GUINN AND J. J. BEAL 

vs.

THE UNITED STATES.

ON A CERTIFICATE FROM THE UNITED STATES CIRCUIT COURT OF 
APPEALS FOR THE EIGHTH CIRCUIT.

INDEX.
Original. Print.

Certificate from the United States Circuit Court of Appeals for
the Eighth Circuit___________________________________  1 j

Statement__________________________________    7 4
Questions certified_________________________________  7 4
Judges’ certificate_____________________ 1___________  7 4

Clerk’s certificate_____________________________________  g 4
77566—13 !





GUINN AND BEAL VS. UNITED STATES. 1

1 United States Circuit Court of Appeals, Eighth Circuit.

December term, A. D. 1912.

F r a n k  G u in n  an d  J. J. B e a l , pl a in t if f s  in  error.1
vs. No. 3736.

U n ited  S tates of  A m e r ic a , d efen d an t  in  error, j

The United States Circuit Court of Appeals for the Eighth Cir­
cuit, sitting at St. Louis, Missouri, on the sixteenth day of December, 
A. D. 1912, certifies that the record in the case above entitled which 
is pending in this court upon a writ o f error to review a judgment of 
conviction of Frank Guinn and J. J. Beal o f the offense of wilfully 
and corruptly conspiring .to injure, oppress, and intimidate, on 
account of their race and color, certain negro citizens named in the 
indictment, who were electors qualified to vote for a Member of Con­
gress in the congressional district and in the precinct in Oklahoma in 
which they resided, in the free exercise and enjoyment o f the right 
and privilege secured to them by the Constitution and laws of the 
United States to vote for a qualified candidate for such Member of 
Congress at the general election on November 8, 1910, in violation of 
section 5508 o f the Revised Statutes, now section 19 o f the Penal 
Code, discloses these facts:

The defendants below were duly indicted for the offense
2 of which they were convicted; they were arraigned; they 

pleaded not guilty; they were tried by a jury which found a
verdict against them; they were convicted and they were sentenced 
to serve one year in the penitentiary at Leavenworth, Kansas, and 
each to pay a fine of one hundred dollars, and they have sued out a 
writ of error to this court to review the judgment against them. The 
indictment charged that the defendants below wilfully and corruptly 
conspired together to injure, oppress, and intimidate, on account of 
their race and color, certain negro citizens named in the indictment 
who were qualified to vote for a qualified candidate for a Member of 
Congress in the congressional district and in the precinct in which 
they resided, in the full exercise and enjoyment of the right and 
privilege secured to each of them by the Constitution and laws of 
the United States to vote for a qualified person for a Member o f Con­
gress at the general election on November 8, 1910, and to prevent 
them from exercising that right and privilege, and from voting for a 
Member of Congress, and that in pursuance of said conspiracy and 
to effect its object the defendants below, who were members of the 
election_board_of the precinct in which the negro citizens were en­
titled to vote, did, by illegal oppression, intimidation, and threats 
deny and prevent the exercise by these negro citizens o f their right 
to vote for a qualified candidate for a Member of Congress at the 
election named, although the negro citizens repeatedly demanded 
and sought to exercise that, right and privilege at the time and place 
of the election in their precinct. At the trial o f the case there was



2 GUINN AND BEAL VS. UNITED STATES.

substantial evidence that the defendants were members of the elec­
tion board of the precinct in which the negro citizens named in the 

indictment resided, and that the defendants wilfully and cor-
3 ruptly conspired together to injure, oppress, and intimidate 

some of these negro citizens named in the indictment as therein
charged, and that in pursuance of that conspiracy they so oppressed 
and intimidated them in the free exercise of their right and privilege 
o f voting for a qualified candidate for a Member of Congress that 
they prevented them from exercising, deprived them of, and denied 
them that right and privilege.

The original constitution of the State of Oklahoma provided, with 
certain exceptions not material in this case, that “ the qualified elec­
tors of the State shall be male citizens of the United States, 
male citizens of the State, and male persons of Indian descent 
native of the United States, who are over the age o f twenty- 
one years, who have resided in the State one year, in the county 
six months, and in the election precinct thirty days next preced­
ing the election at which any such elector offers to vote. (Con­
stitution of Oklahoma, art. 3,' sec. 1.) There was undisputed testi­
mony at the trial that the negro citizens named in the indictment 
were qualified electors entitled to vote for a qualified candidate for 
a Member o f Congress under that constitution. But in 1910, prior 
to the eighth day of November in that year, the day of the general 
election, this amendment to that constitution was adopted: “ No per­
son shall be registered as an elector of this State, or be allowed to vote 
in any election herein, unless he be able to read and write any section 
o f the constitution of the State of Oklahoma. And no person who 
was, on January 1, 18G6, or at any time prior thereto, entitled to vote 
under any form of government, or who at that time resided in some 

foreign nation, and no lineal descendant of such person, shall
4 be denied the right to register and vote because of his inability 

to so read and write sections o f such constitution. Precinct
election inspectors having in charge the registration of electors shall 
enforce the provisions of this section at the time of registration, pro­
vided registration be required. Should registration be dispensed 
with, the"provisions o f this section shall be enforced by the precinct 
election officer when electors apply for ballots to vote. There was 
substantial testimony at the trial that several of the negro citizens 
named in the indictment were not, and that their lineal ancestors were 
not, entitled to vote under any form of government on January 1. 
1866, or at any time prior thereto, and that each of them, or each of 
his lineal ancestors, at that time resided in the United States and was 
a slave; that the defendants claimed that by reason of this amend­
ment these negro citizens were deprived of their right to vote for a 
qualified candidate for a Member of Congress unless they were able 
to read and write and unless they did read and write, in the presence 
o f the defendants, any such section o f the constitution of Oklahoma 
which the defendants selected. That, on the other hand, the negro 
citizens claimed at the election, and the United States insisted at the



GUINN AND BEAL VS. UNITED STATES. 3

trial, that the amendment was unconstitutional and void, and that 
the negro citizens who, the evidence introduced at the trial proved, 
were in all other respects qualified to vote for a qualified candidate 
for a Member of Congress, were qualified so to vote, although they 
were not able to read or write, and did not read or write any section 
of the constitution of Oklahoma.

The trial court, speaking of the negro citizens named in the indict­
ment, charged the jury, among other things, in these words:

5 “ As the evidence on the point is undisputed, I take it you will 
have no difficulty in concluding that a number, or several, of

these colored voters (referring to the negro citizens named in the 
indictment) were entitled to vote for congressional candidates in 
Union Township precinct (the precinct in which they resided) and 
were deprived o f such right. * * * The fourteenth amendment
declares them to be citizens if they were born in the United States 
and subject to the jurisdiction thereof. I f  they were citizens, and 
otherwise qualified to vote, they had a right the same as all citizens 
to be not discriminated against on account of their race or color. 
This right is guaranteed by the fifteenth amendment to the Federal 
Constitution, which provided that ‘ the right of citizens of the United 
States to vote shall not be denied or abridged by the United States on 
account of race, color, or previous condition o f servitude.’ And Con­
gress has also provided, by section 200-1. Revised Statutes, ‘ All citi­
zens of the United States who are otherwise qualified by law to vote 
at any election by the people of any State. Territory, district, munic­
ipality, or other territorial subdivision, shall be entitled and allowed 
to vote at all such elections without distinction o f race, color, or pre­
vious 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.’ * * * In the opinion of the 
court, the State amendment which imposes the test of reading and 
writing any section of the State constitution as a condition to voting 
to persons not on or prior to January 1. I860), entitled to vote under 
some form of government, or then resident in some foreign nation, 
or a lineal descendant of such person, is not valid, but you may 

consider it insofar as it was in good faith relied and acted upon
6 by the defendants in ascertaining their intent and motive. I f  

you believe from the evidence that the defendants formed a
common design and cooperated in denying the colored voters of 
Union Township precinct, or any of them, entitled to vote, the privi­
lege of voting, but this was due to a mistaken belief sincerely enter­
tained by the defendants as to the qualifications of the voters—that is, 
if the motive actuating the defendants was honest, and they simply 
erred in the conception of their duty—then the criminal intent requi­
site to their guilt is wanting and they cannot be convicted. On the 
other hand, if they knew or believed these colored persons were en­
titled to vote, and their purpose was to unfairly and fraudulently 
deny the right of suffrage to them, or any of them, entitled thereto,



4 GUINN AND BEAL VS. UNITED STATES.

on account of their race and color, then their purpose was a corrupt 
one, and they cannot be shielded by their official positions.”

The evidence at the trial, and the charge of the court which have 
been referred to in this certificate, together with the exceptions to the 
rulings herein mentioned, were embodied in a bill of exceptions duly 
settled by the court, a copy o f which forms a part of the transcript 
o f the record before this court.

The fourteenth assignment of error made by the plaintiffs in error 
is, “ The court erred in instructing the jury as follows: ‘ In the opin­
ion of the court the State amendment, which imposes the test of read­
ing and writing any section in the constitution as a condition to 
voting to persons not on or prior to January 1, 1866, entitled to vote 
under some form of government, or as a resident of some foreign 
nation, or a lineal descendant of some such person, is not valid,’ and 
an exception to this portion of the charge of the court was duly made 

and preserved at the time it was given.”
7 And the Circuit Court of Appeals for the Eighth Circuit 

further certifies that the following questions of law are pre­
sented to it in the case above entitled, that a decision o f each of these 
questions is indispensable to a determination o f the cause, and that 
to the end that the cause may be properly determined and disposed 
of, it desires the instruction of the Supreme Court of the United 
States upon these questions:

1. Was the amendment to the constitution of Oklahoma, heretofore 
set forth, valid?

2. Was that amendment void in so far as it attempted to debar 
from the right or privilege of voting for a qualified candidate for a 
Member of Congress in Oklahoma, unless they were able to read and 
write any section of the constitution of Oklahoma, negro citizens of 
the United States who were otherwise qualified to vote for a qualified 
candidate for a Member of Congress in that State, but who were not, 
and none of whose lineal ancestors was, entitled to vote under any 
form of government on January 1, 1866, or at any time prior thereto, 
because they were then slaves?

W alter  H. S a n b o r n ,
W alte r  I. S m it h ,

Circuit Judges.
C h ar les  A. W illard ,

District Judge.

Filed Dec. 16, 1912. John D. Jordan, clerk.

8 United States Circuit Court of Appeals, Eighth Circuit.

I, John D. Jordan, clerk of the United States Circuit Court of A p ­
peals for the Eighth Circuit, do hereby certify that the foregoing 
certificate in the case o f Frank Guinn and J. J. Beal, plaintiffs in 
error, vs. United States of America, No. 3736, was duly filed and 
entered o f record in my office by order of said court, and as directed



GUINN AND BEAL VS. UNITED STATES. 5

by said court, the said certificate is by me transmitted to the Supreme 
Court o f the United States for its action thereon.

In testimony whereof, I hereunto subscribe my name and affix the 
seal of the United States Circuit Court of ApjWals for the Eighth 
Circuit, at the city o f St. Louis, Missouri, this sixteenth day of 
December, A. D. 1912.

[seal .] J o h n  D. J ordan ,
Clerk of the United States Circuit Court of

Appeals for the Eighth Circuit.
9 (Indorsed:) U. S. Circuit Court of Appeals, Eighth Cir­

cuit. December term, 1912. No. 3736. Frank Guinn and 
J. J. Beal, plaintiffs in error, vs. United States o f America. Certifi­
cate of questions to the Supreme Court of the United States.

(Indorsement on cover:) File No. 23498. U. S. Circuit Court A p­
peals, 8th Circuit. Term No., 923. Frank Guinn and J. J. Beal vs. 
The United States. (Certificate.) Filed January 13th, 1913. File 
No. 23498.

O









SUPREME COURT OF THE UNITED STATES.

Mr. Chief Justice W h ite  delivered the opinion of the Court.

This case is before us on a certificate drawn by the court below 
as the basis of two questions which are submitted for our solution 
in order to enable the court correctly to decide issues in a case 
which it has under consideration. Those issues arose from an 
indictment and conviction of certain election officers of the State 
of Oklahoma (the plaintiffs in error) of the crime of having con­
spired unlawfully, wilfully and fraudulently lo deprive certain 
negro citizens, on account of their race and color, of a right to vote 
at a general election held in that State in 1910, they being entitled 
to vote under the state law and which right was secured to them 
by the Fifteenth Amendment to the Constitution of the United 
States. The prosecution was directly concerned with Section 5508, 
Revised Statutes, now Section 19 of the Penal Code which is as 
follows:

“ If two or more persons conspire to injure, oppress, threaten, or 
intimidate any citizen in the free exercise or enjoyment of any right 
or privilege secured to him by the Constitution or laws of the 
United States, or because of his having so exercised the same; or 
if two or more persons go in disguise on the highway, or on the 
premises of another, with intent to prevent or hinder his free 
exercise or enjoyment of any right or privilege so secured, they 
shall be fined not more than five thousand dollars and imprisoned 
not more than ten years, and shall, moreover, thereafter be in­
eligible to any office, or place of honor, profit, or trust created by the 
Constitution or laws of the United States.”

We concentrate and state from the certificate only matters which 
we deem essential to dispose of the questions asked.

No. 96.— O ctober T erm , 1914.

Frank Guinn and J. J. Beal, 
vs.

The United States.

On a Certificate from the 
United States Circuit 
Court of Appeals for the 
Eighth Circuit.

[June 21, 1915.]



2 Quinn et al. vs. The United States.

Suffrage in Oklahoma was regulated by Section 1, Article III of 
the Constitution under which the State was admitted into the 
Union. Shortly after the admission there was submitted an amend­
ment to the Constitution making a radical change in that article 
which was adopted prior to November 8, 1910. At an election 
for members of Congress which followed the adoption of this 
Amendment certain election officers in enforcing its provisions 
refused to allow certain negro citizens to vote who were clearly 
entitled to vote under the provision of the Constitution under 
which the State was admitted, that is, before the amendment, and 
who, it is equally clear, were not entitled to vote under the pro­
vision of the suffrage amendment if that amendment governed. 
The persons so excluded based their claim of right to vote upon the 
original Constitution and upon the assertion that the suffrage 
amendment was void because in conflict with the prohibitions of the 
Fifteenth Amendment and therefore afforded no basis for denying 
them the right guaranteed and protected by that Amendment. 
And upon the assumption that this claim was justified and that 
the election officers had violated the Fifteenth Amendment in 
denying the right to vote, this prosecution, as we have said, was 
commenced. At the trial the court instructed that by the Fifteenth 
Amendment the States were prohibited from discriminating as to 
suffrage because of race, color, or previous condition of servitude 
and that Congress in pursuance of the authority which was con­
ferred upon it by the very terms of the Amendment to enforce its 
provisions had enacted the following (Rev. Stat. sec. 2004) :

“  All citizens of the United States who are otherwise qualified 
by law to vote at any election by the people of any State, Territory, 
district, municipality, or other territorial subdivision, shall be 
entitled and allowed to vote at all such elections without distinction 
of 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. ’ ’

It then instructed as follows:
“ The State amendment which imposes the test of reading and 

writing any section of the State constitution as a condition to 
voting to persons not on or prior to January 1, 1866, entitled to 
vote under some form of government, or then residents in some 
foreign nation, or a lineal descendant of such person, is not valid, 
but you may consider it in so far as it was in good faith relied and 
acted upon by the defendants in ascertaining their intent and 
motive. I f you believe from the evidence that the defendants formed



Quinn et al. vs. The United States. 3

a common design and cooperated in denying the colored voters of 
Union Township precinct, or any of them, entitled to vote, the 
privilege of voting, but this was due to a mistaken belief sincerely 
entertained by the defendants as to the qualifications of the voters— 
that is, if the motive actuating the defendants was honest, and 
they simply erred in the conception of their duty—then the criminal 
intent requisite to their guilt is wanting and they cannot be con­
victed. On the other hand, if they knew or believed these colored 
persons were enitled to vote, and their purpose was to unfairly 
and fraudulently deny the right of suffrage to them, or any of 
them entitled thereto, on account of their race and color, then 
their purpose was a corrupt one, and they cannot be shielded by 
their official positions. ’ ’

The questions which the court below asks are these:
“ 1. Was the amendment to the constitution of Oklahoma, here­

tofore set forth valid ?
“ 2. Was that amendment void in so far as it attempted to debar 

from the right or privilege of voting for a qualified candidate for 
a Member of Congress in Oklahoma unless they were able to read and 
write any section of the constitution of Oklahoma, negro citizens of 
the United States who were otherwise qualified to vote for a 
qualified candidate for a Member of Congress in that State, but 
who were not, and none of whose lineal ancestors was, entitled to 
vote under any form of government on January 1, 1866, or at any 
time prior thereto, because they were then slaves ? ’ ’

As these questions obviously relate to the provisions concerning 
suffrage in the original constitution and the amendment to those 
provisions which forms the basis of the controversy, we state the text 
of both. The original clause so far as material was this:

“ The qualified electors of the State shall be male citizens of the 
United States, male citizens of the State, and male persons of 
Indian descent native of the United States, who are over the age 
of twenty-one years, who have resided in the State one year, in the 
county six months, and in the election precinct thirty days, next 
preceding the election at which any such elector offers to vote. ’ ’

And this is the amendment:
“ No person shall be registered as an elector of this State or be 

allowed to vote in any election herein, unless he be able to read and 
write any section of the constitution of the State of Oklahoma; 
but no person who was, on January 1, 1866, or at any time prior 
thereto, entitled to vote under any form of government, or who 
at that time resided in some foreign nation, and no lineal descend­
ant of such person, shall be denied the right to register and vote 
because of his inability to so read and write sections of such 
constitution. Precinct election inspectors having in charge the



4 Guinn et al. vs. The United States.

registration of electors shall enforce the provisions of this section 
at the time of registration, provided registration be required. 
Should registration be dispensed with, the provisions of this section 
shall be enforced by the precinct election officer when electors apply 
for ballots to vote.”

Considering the questions in the light of the text of the suffrage 
amendment it is apparent that they are twofold because of the 
twofold character of the provisions as to suffrage which the amend­
ment contains. The first question is concerned with that pro­
vision of the amendment which fixes a standard by which the 
right to vote is given upon conditions existing on January 1, 1866, 
and relieves those coming within that standard from the standard 
based on a literacy test which is established by the other provision 
of the amendment. The second question asks as to the validity of 
the literacy test and how far, if intrinsically valid, it would con­
tinue to exist and be operative in the event the standard based 
upon January 1, 1866 should be held to be illegal as violative of the 
Fifteenth Amendment.

To avoid that which is unnecessary let us at once consider and 
sift the propositions of the United States on the one hand and of 
the plaintiffs in error on the other, in order to reach with precision 
the real and final question to be considered. The United States 
insists that the provision of the amendment which fixes a standard 
based upon January 1, 1866 is repugnant to the prohibitions of the 
Fifteenth Amendment because in substance and effect that pro­
vision, if not an express, is certainly an open repudiation of the 
Fifteenth Amendment and hence the provision in question was 
stricken with nullity in its inception by the self-operative force of 
the Amendment, and as the result of the same power was at all 
subsequent times devoid of any vitality whatever.

/ For the plaintiffs in error on the other hand it is said the States 
have the power to fix standards for suffrage and that power was not 
taken away by the Fifteenth Amendment but only limited to the 
extent of the prohibitions which that Amendment established. This 
being true, as the standard fixed does not in terms make any dis­
crimination on account of race, color, or previous condition of servi­
tude, since all, whether negro or white, who come within its require­
ments enjoy the privilege of voting, there is no ground upon which 
to rest the contention that the provision violates the Fifteenth 
Amendment. This, it is insisted, must be the case unless it is in­
tended to expressly deny the state’s right to provide a standard for



Guinn et al. vs. The United States.

suffrage, or what is equivalent thereto, to assert: a, that the judg­
ment of the State exercised in the exertion of that power is subject 
to Federal judicial review or supervision, or h, that it may be 
questioned and be brought within the prohibitions of the Amend­
ment by attributing to the legislative authority an occult motive 
to violate the Amendment or by assuming that an exercise of the 
otherwise lawful power may be invalidated because of conclusions 
concerning its operation in practical execution and resulting dis­
crimination arising therefrom, albeit such discrimination was not 
expressed in the standard fixed or fairly to be implied but simply 
arose from inequalities naturally inhering in those who must come 
within the standard in order to enjoy the right to vote.

On the other hand the United States denies the relevancy of 
these contentions. It says state power to provide for suffrage is not 
disputed, although, of course, the authority of the Fifteenth 
Amendment and the limit on that power which it imposes is 
insisted upon. Hence, no assertion denying the right of a state 
to exert judgment and discretion in fixing the qualification of 
suffrage is advanced and no right to question the motive of the 
state in establishing a standard as to such subjects under such 
circumstances or to review or supervise the same is relied upon and 
no power to destroy an otherwise valid exertion of authority upon 
the mere ultimate operation of the power exercised is asserted. And 
applying these principles to the very case in hand the argument of 
the Government in substance says: No question is raised by the 
Government concerning the validity of the literacy test provided 
for in the amendment under consideration as an independent 
standard since the conclusion is plain that that test rests on the 
exercise of state judgment and therefore cannot be here assailed 
either by disregarding the state’s power to judge on the subject 
or by testing its motive in enacting the provision. The real question 
involved, so the argument of the Government insists, is the re­
pugnancy of the standard which the amendment makes, based upon 
the conditions existing on January 1st, 1866, because on its face 
and inherently considering the substance of things, that standard 
is a mere denial of the restrictions imposed by the prohibitions of 
the Fifteenth Amendment and by necessary result re-creates and 
perpetuates the very conditions which the Amendment was intended 
to destroy. From this it is urged that no legitimate discretion could 
have entered into the fixing of such standard which involved only



6 Guinn et al. vs. The United States.

the determination to directly set at naught or by indirection avoid 
the commands of the Amendment. And it is insisted that nothing 
contrary to these propositions is involved in the contention of the 
Government that if the standard which the suffrage amendment 
fixes based upon the conditions existing on January 1,1866, be found 
to be void for the reasons urged, the other and literacy test is also 
void, since that contention rests, not upon any assertion on the part 
of the Government of any abstract repugnancy of the literacy 
test to the prohibitions of the Fifteenth Amendment, but upon the 
relation between that test and the other as formulated in the 
suffrage amendment and the inevitable result which it is deemed 
must follow from holding it to be void if the other is so declared 
to be.

Looking comprehensively at these contentions of the parties it 
plainly results that the conflict between them is much narrower than 
it would seem to be because the premise which the arguments of 
the plaintiffs in error attribute to the propositions of the United 
States is by it denied. On the very face of things it is clear that 
the United States disclaims the gloss put upon its contentions by 
limiting them to the propositions which we have hitherto pointed 
out, since it rests the contentions which it mates as to the assailed 
provision of the suffrage amendment solely upon the ground that 
it involves an unmistakable, although it may be a somewhat dis­
guised, refusal to give effect to the prohibitions of the Fifteenth 
Amendment by creating a standard which it is repeated but calls 
to life the very conditions which that Amendment was adopted 
to destroy and which it had destroyed.

The questions then are: (1) Giving to the propositions of the
Government the interpretation which the Government puts upon 
them and assuming that the suffrage provision has the significance 
which the Government assumes it to have, is that provision as a 
matter of law repugnant to the Fifteenth Amendment ? which leads 
us of course to consider the operation and effect of the Fifteenth 
Amendment. (2) I f yes, has the assailed amendment in so far 
as it fixes a standard for voting as of January 1, 1866, the meaning 
which the Government attributes to it? which leads us to analyze 
and interpret that provision of the amendment. (3) I f  the investi­
gation as to the two prior subjects establishes that the standard 
fixed as of January 1, 1866, is void, what if  any effect does that 
conclusion have upon the literacy standard otherwise established by 
the amendment ? which involves determining whether that standard,



Guinn ei al vs. The United States. 7

if legal, may survive the recognition of the fact that the other or 
1866 standard has not and never had any legal existence. Let 
us consider these subjects under separate headings.

1. The operation and effect of the Fifteenth Amendment. This 
is its text:

“ Section 1. The right of citizens of the United States to vote 
shall not he 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 appropriate legislation.”

(a) Beyond doubt the Amendment does not take away from the 
state governments in a general sense the power over suffrage which 
has belonged to those governments from the beginning and without 
the possession of which power the whole fabric upon which the 
division of state and national authority under the Constitution 
and the organization of both governments rest would be without 
support and both the authority of the nation and the state would 
fall to the ground. In fact, the very command of the Amendment 
recognizes the possession of the general power by the State, since 
the Amendment seeks to regulate its exercise as to the particular 
subject with which it deals.

(b) But it is equally beyond the possibility of question that the 
Amendment in express terms restricts the power of the United 
States or the States to abridge or deny the right of a citizen of 
the United States to vote on account of race, color or previous con­
dition of servitude. The restriction is coincident with the power 
and prevents its exertion in disregard of the command of the 
Amendment. But while this is true, it is true also that the Amend­
ment does not change, modify or deprive the States of their full 
power as to suffrage except of course as to the subject with which 
the Amendment deals and to the extent that obedience to its com­
mand is necessary. Thus the authority over suffrage which the 
States possess and the limitation which the Amendment imposes 
are coordinate and one may not destroy the other without bringing 
about the destruction of both.

(c) While in the true sense, therefore, the Amendment gives no 
right of suffrage, it was long ago recognized that in operation its 
prohibition might measureably have that effect; that is to say, that 
as the command of the Amendment was self-executing and reached 
without legislative action the conditions of discrimination against



8 Quinn et al vs. The United States.

which it was aimed, the result might arise that as a consequence of 
the striking down of a discriminating clause a right of suffrage 
would be enjoyed by reason of the generic character of the pro­
vision which would remain after the discrimination was stricken 
out. Ex parte Yarborough, 110 U. S. 651; Neal v. Delaware, 103 
U. S. 370. A familiar illustration of this doctrine resulted from the 
effect of the adoption of the Amendment on state constitutions in 
which at the time of the adoption of the Amendment the right of 
suffrage was conferred on all white male citizens, since by the 
inherent power of the Amendment the word white disappeared and 
therefore all male citizens without discrimination on account of 
race, color or previous condition of servitude came under the generic 
grant of suffrage made by the state.

With these principles before us how can there be room for any 
serious dispute concerning the repugnancy of the standard based 
upon January 1, 1866, (a date which preceded the adoption of the 
Fifteenth Amendment), if the suffrage provision fixing that standard 
is susceptible of the significance which the Government attributes 
to it? Indeed, there seems no escape from the conclusion that to 
hold that there was even possibility for dispute on the subject 
would be but to declare that the Fifteenth Amendment not only 
had not the self-executing power which it has been recognized 
to have from the beginning, but that its provisions were wholly 
inoperative because susceptible of being rendered inapplicable by 
mere forms of expression embodying no exercise of judgment and 
resting upon no discernible reason other than the purpose to dis­
regard the prohibitions of the amendment by creating a standard 
of voting which on its face was in substance but a revitalization of 
conditions which when they prevailed in the past had been destroyed 
by the self-operative force of the Amendment.

2. The standard of January 1, 1866, fixed in the suffrage amend­
ment and its significance.

The inquiry of course here is, Does the amendment as to the 
particular standard which this heading embraces involve the mere 
refusal to comply with the commands of the Fifteenth Amendment 
as previously stated? This leads us for the purpose of the 
analysis to recur to the text of the suffrage amendment. Its opening 
sentence fixes the literacy standard which is all-inclusive since it is 
general in its expression and contains no word of discrimination 
on account of race or color or any other reason. This however is



Guinn et al vs. The United States. 9

immediately followed by the provisions creating the standard based 
upon the condition existing on January 1, 1866, and carving out 
those coming under that standard from the inclusion in the literacy 
test which would have controlled them but for the exclusion thus 
expressly provided for. The provision is this:

“ But no person who was, on January 1, 1866, or at any time 
prior thereto, entitled to vote under any form of government, or 
who at that time resided in some foreign nation, and no lineal 
descendant of such person, shall be denied the right to register and 
vote because of his inability to so read and write sections of such 
constitution. ’ ’

We have difficulty in finding words to more clearly demonstratej 
the conviction we entertain that this standard has the characteristics 
which the Government attributes to it than does the mere statement 
of the text. It is true it contains no express words of an exclusion 
from the standard which it establishes of any person on account of 
race, color, or previous condition of servitude prohibited by the F if­
teenth Amendment, but the standard itself inherently brings that 
result into existence since it is based purely upon a period of time 
before the enactment of the Fifteenth Amendment and makes tha1 
period the controlling and dominant test of the right of suffrage 
In other words, we seek in vain for any ground which would 
sustain any other interpretation but that the provision, recurring 
to the conditions existing before the Fifteenth Amendment was 
adopted and the continuance of which the Fifteenth Amendment 
prohibited, proposed by in substance and effect lifting those condi­
tions over to a period of time after the Amendment to make 
them the basis of the right to suffrage conferred in direct and 
positive disregard of the Fifteenth Amendment. And the same 
result, we are of opinion, is demonstrated by considering whether 
it is possible to discover any basis of reason for the standard thus 
fixed other than the purpose above stated. We say this because 
we are unable to discover how, unless the prohibitions of the F if­
teenth Amendment were considered, the slightest reason was af­
forded for basing the classification upon a period of time prior to 
the Fifteenth Amendment. Certainly it cannot be said that 
there was any peculiar necromancy in the time named which 
engendered attributes affecting the qualification to vote which would 
not exist at another and different period unless the Fifteenth 
Amendment was in view.



10 Quinn et al vs. The United States.

While these considerations establish that the standard fixed 
on the basis of the 1866 test is void, they do not enable us to 
reply even to the first question asked by the court below, since to 
do so we must consider the literacy standard established by the 
suffrage amendment and the possibility of its surviving the deter­
mination of the fact that the 1866 standard never took life since 
it was void from the beginning because of the operation upon it 
of the prohibitions of the Fifteenth Amendment. And this brings 
us to the last heading:

3. The determination of the validity of the literacy test and the 
possibility of its surviving the disappearance of the 1866 standard 
with which it is associated in the suffrage amendment.

No time need be spent on the question of the validity of the 
literacy test considered alone since as we have seen its establish­
ment was but the exercise by the State of a lawful power vested 
in it not subject to our supervision, and indeed, its validity is ad­
mitted. Whether this test is so connected with the other one re­
lating to the situation on January 1, 1866, that the invalidity of 
the latter requires the rejection of the former is really a question 
of state law, but in the absence of any decision on the subject by 
the Supreme Court of the State, we must determine it for our­
selves. We are of opinion that neither forms of classification 
nor methods of enumeration should be made the basis of striking 
down a provision which was independently legal and therefore was 
lawfully enacted because of the removal of an illegal provision with 
which the legal provision or provisions may have been associated. 
We state what we hold to be the rule thus strongly because we 
are of opinion that on a subject like the one under consideration 
involving the establishment of a right whose exercise lies at the 
very basis of government a much more exacting standard is re­
quired than would ordinarily obtain where the influence of the 
declared unconstitutionality of one provision of a statute upon 
another and constitutional provision is required to be fixed. Of 
course, rigorous as is this rule and imperative as is the duty not 
to violate it, it does not mean that it applies in a case where it 
expressly appears that a contrary conclusion must be reached if 
the plain letter and necessary intendment of the provision under 
consideration so compels, or where such a result is rendered neces­
sary because to follow the contrary course would give rise to such



Guinn et al vs. The United States. 11

an extreme and anomalous situation as would cause it to be im­
possible to conclude that it could have been upon any hypothesis 
whatever within the mind of the law-making power.

Does the general rule here govern or is the case controlled by 
one or the other of the exceptional conditions which we have just 
stated, is then the remaining question to be decided. Coming to 
solve it we are of opinion that by a consideration of the text of 
the suffrage amendment in so far as it deals with the literacy test 
and to the extent that it creates the standard based upon conditions 
existing on January 1, 1866, the case is taken out of the general 
rule and brought under the first of the exceptions stated. We say 
this because in our opinion the very language of the suffrage amend­
ment expresses, not by implication nor by forms of classification 
nor by the order in which they are made, but by direct and positive 
language the command that the persons embraced in the 1866 
standard should not be under any conditions subjected to the 
literacy test, a command which would be virtually set at naught 
if on the obliteration of the one standard by the force of the 
Fifteenth Amendment the other standard should be held to con­
tinue in force.

The reasons previously stated dispose of the case and make it 
plain that it is our duty to answer the first question, No, and the 
second, Yes; but before we direct the entry of an order to that effect 
we come briefly to dispose of an issue the consideration of which 
we have hitherto postponed from a desire not to break the con­
tinuity of discussion as to the general and important subject be­
fore us.

In various forms of statement not challenging the instruc­
tions given by the trial court concretely considered concerning 
the liability of the election officers for their official conduct, it is 
insisted that as in connection with the instructions the jury was 
charged that the suffrage amendment was unconstitutional because 
of its repugnancy to the Fifteenth Amendment, therefore taken as 
a whole the charge was erroneous. But we are of opinion that this 
contention is without merit, especially in view of the doctrine long 
since settled concerning the self-executing power of the Fifteenth 
Amendment and of what we have held to be the nature and char­
acter of the suffrage amendment in question. The contention con­
cerning the inapplicability of Section 5508, Revised Statutes, now



1 2 Guinn et al vs. The United States.

Section 19 of the Penal Code, or of its repeal by implication, is fully 
answered by the ruling this day made in United States v. Mosley, 
No. 180, ante, p. — .

We answer the first question, No, and the second question, Yes.

And it will he so certified.

Mr. Justice McReynolds took no part in the consideration and 
decision of this ease.

True copy.
Test:

Clerk Supreme Court, U. S.











>' i  LI E D

Fee i 1827

No. 117.

In the Supreme Court of the United States
OCTOBER TERM, 1926.

L. A. NIXON, Plaintiff in  E rror, 

vs.
C. C. HERNDON AND CHAS. PORRAS, D efendants in

E rror.

IN ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE 
WESTERN DISTRICT OF TEXAS.

am
—*

B rief for th e  State of T exas, by  Special L eave of Court.

Claude Pollard, 
Attorney General o f Texas, 

D. A. Sim m o n s ,
First Assistant Attorney General, 

For the State o f Texas.

-





INDEX.

PAGE

Preliminary Statement............................................................... 1
Statement o f the Case................................................................. 1
Counter Propositions ................................................................. 3
A rg u m en t........................................................................................  4
C on c lu s ion ...................................................................................... 15

CITATIONS.

Anderson vs. Ashe, 130 S. W ., 1046.......................................... 8
Article 3093a ................................................................................2, 4
Article 3107 ....................................................................................  4
Article 3 1 0 0 .................................................................................... 13
Baer vs. Gore, 79 W . Va., 50, 90 S. E., 530, 533................... 11
12 Corpus Juris, 878.....................................................................  6
Chandler vs. Neff, 298 Fed., 515............................................6, 8
Dooley vs. Jackson, 104 Mo. App., 21; 78 S. W ., 330 11
Koy vs. Schneider, 110 Texas, 369; 218 S. W ., 487..........  8
Love vs. Griffith, 266 U. S., 32 .......................................................  7
Montgomery vs. Chelf, 118 Ky„ 766; 82 S. W ., 338, 390 . 11
Morrow vs. W ip f, 22 S. D „ 146; 115 N. W ., 1124..............  11
Newberry vs. United States, 256 U. S., 232, 350; 41 Sup.

Ct„ 469; 65 L. Ed., 13 ......................................................... 12
People vs. Dem ocratic Committee, 164 N. Y., 335, 58

N. E., 124................................................................................ 12
Riter vs. Douglass, 32 Nev., 400; 109 Pac., 444.................4, 9
Socialist Party vs. Uhl, 155 Cal., 776; 103 Pac., 181........  12
State ex rel. Gulden vs. Johnson, 87 Minn., 223 ; 91 N.

W ., 341 ....................................................................................  9
State vs. Michel, Secretary o f State, 121 La., 374; 46

So., 435 ...................................................................................... 11
State ex rel. W ebber vs. Felton, 77 Ohio St., 554, 84

N. E., 8 5 ...................................................................................... 10
W aples vs. Marrast, 108 Texas, 11; 184 S. W ., 183..........  6





No. 117.

In the Supreme Court of the United States
OCTOBER TERM, 1926.

L. A. NIXON, Plaintiff in  E rror, 

vs.
C. C. HERNDON AND CHAS. PORRAS, D efendants in

E rror.

IN ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE 
WESTERN DISTRICT OF TEXAS.

Rrief for the  State of T exas, by  Special L eave of Court.

Preliminary Statement.

In this case an attack is made upon the constitutionality 
o f an act passed by the Legislature o f Texas. This brief is 
filed on behalf o f the State o f Texas under special leave o f 
this court, granted on January 4, 1927, to Dan Moody, 
form er Attorney General o f Texas.

Statement of th e  Case.

The statement o f the case made in the brief for  plaintiff 
in error is subject to some m inor objections, and we there­
fore make this further brief statement.

This is a suit in law by L. A. Nixon, a negro, plaintiff, 
filed against C. C. Herndon and Chas. Porras, who were 
designated by the Dem ocratic Executive Committee as 
election judges in the Dem ocratic nominating prim ary held 
in El Paso County on July 26, 1924. The plaintiff, L. A. 
Nixon, is suing for  $5000 damages fo r  the reason that the 
defendants in error refused to allow  said L. A. Nixon, a 
negro, to vote in said Dem ocratic nominating primary.



— 2 —

The refusal to allow said plaintiff in error to vote was 
for  the reason that he was a negro, and the defendants in 
error as agents o f the Dem ocratic party in El Paso County, 
Texas, had been instructed by the Chairman o f the Exec­
utive Committee o f the Dem ocratic party in that county 
not to permit any negroes to vote at the said nominating 
primary. (R. 3.) The plaintiff in error further alleges in 
his petition that he was not permitted to vote in said Dem­
ocratic primary because o f an Act o f the Legislature o f 
the State o f Texas, enacted in May, 1923, at the First Called 
Session o f the Thirty-eighth Legislature o f said State, which 
was designated as Article 3093a, a law reading as follow s:

“ Article 3093a. All qualified voters under the laws 
and Constitution o f the State o f Texas, who is a bona 
fide member o f the Dem ocratic party, shall be eligible 
to participate in any Dem ocratic prim ary election, pro­
vided such voter com plies with all laws and rules 
governing party prim ary elections; however, in no 
event shall a negro be eligible to participate in a 
Dem ocratic party election held in the State o f Texas, 
and should a negro vote in a Dem ocratic prim ary elec­
tion, such ballot shall be void  and election officials are 
herein directed to throw out such ballot and not count 
the same.”

The plaintiff in error on page 4 o f his printed brief sets 
forth the basis o f the refusal o f the Dem ocratic nominat­
ing prim ary officials to permit him to vote, tow it:

“ This is to certify that we, C. C. Herndon and Chas. Por- 
ras, presiding and associate judges, respectively, have not 
permitted L. A. Nixon to vote, as per instruction 26 given 
in ballot boxes to election holders.

“ C. C. H erndon, 
“ Ch a s . Porras.

“ July 26, 1924.”

This instruction number 26 was issued by E. M. W hitaker,



— 3 —

Chairman o f the Executive Committee o f the Dem ocratic 
party in El Paso County, Texas. (R. 3.)

Plaintiff in error on page 2, printed brief, in his state­
ment o f the case asserts he was a bona fide Democrat with 
all the qualifications o f a voter, in possession o f his poll tax 
receipt, and that on July 26, 1924, a general prim ary elec­
tion was held in El Paso county, Texas, at which his vote 
was refused because o f the act o f the Legislature herein­
above set forth.

There was no general election, but the facts shown by 
the petition indicates that the plaintiff in error, by calling 
him self a bona fide Democrat, tried to participate in a 
nominating prim ary o f the Dem ocratic party and his par­
ticipation therein was denied under the rules issued by 
the governing body o f  the Dem ocratic party in that county.

W e submit the follow ing as counter propositions to the 
five points urged by the plaintiff in error:

1. The right to inject oneself into the nominating pri­
m ary o f a political party is not a right which can be en­
forced  in the district court o f the United States.

2. A nominating prim ary o f the Dem ocratic party in 
Texas is not a public election under the Constitution o f that 
State.

3. Participation in a nominating prim ary o f a political 
party is not protected nor guaranteed by the Fifteenth 
Amendment to the Constitution o f  the United States.

4. The refusal by local officers o f a political party to 
permit a negro to participate in the nominating prim ary o f 
that party because the rules o f the party in that county 
do not recognize negroes as members thereof, does not 
abridge the right to vote under the Fifteenth Amendment, 
nor does it deny the equal protection o f the law guaran­
teed by the Fourteenth Amendment to the Constitution o f 
the United States.



4 -

5. Article 3107 o f the Revised Civil Statutes o f Texas 
o f 1925 does not violate the Constitution o f Texas.

A rgument.

The counter propositions advanced are so closely akin 
that, as a matter o f convenience, we treat them together.

The plaintiff in error directs his main attack on the con­
stitutionality o f Article 3093a o f the Acts o f the Legislature 
hereinbefore quoted.

As we understand it, laws attacked as unconstitutional 
when passed by the Legislature o f a State are clothed with 
a different presumption than those passed by Congress. 
Congress has no authority to pass any laws except such as 
the Constitution either expressly or by necessary im plica­
tion grants. Hence, when an act o f Congress is attacked 
as unconstitutional for  contravening any right, unless the 
act is under the specified authority o f the Constitution o f 
the United States, it is unconstitutional. On the other 
hand, the people o f the States, including the State o f Texas, 
in form ulating their Constitutions gave the legislative body 
o f the State government unreserved authority to pass any 
legislation which was not expressly prohibited by the Con­
stitution o f the State, or in violation o f the Constitution o f 
the United States. W herefore, when a law o f the State o f 
Texas is attacked as unconstitutional, it is presumed to be 
constitutional until it is declared otherwise by a court of 
com petent jurisdiction as being in contravention o f the 
State Constitution or the Constitution o f the United States. 
See Riter vs. Douglass, 32 Nev., 400, 109 Pac., 444.

W e think it is perfectly clear that the nominating prim ary 
o f a political party is not an election in w hich anyone may 
vote. There are m any organized groups o f persons, volun­
tary in character, in the several States o f the Union. In 
m any o f these the election o f officers and the purposes and 
objects o f the organization depend upon the votes o f the



5—

individual members. Some o f these are maintained for 
charitable purposes, some for  the support o f religious w or­
ship, some for  the diffusion o f knowledge and the extension 
o f education, some for the prom otion o f peace, and some 
for the advancement o f political ideas. It clearly appears, 
therefore, that the right to vote referred to in constitutions 
and elections mentioned therein do not include within their 
scope all elections and all voting by persons in the United 
States.

The act o f the Legislature o f Texas and the nominating 
prim ary in which the vote o f plaintiff in error was refused 
dealt only with voting within a designated political party, 
which is but the instrumentality o f a group o f individuals 
for the furtherance o f their own political ideas.

It must be rem em bered that “ nominating primaries”  were 
unknown at the time o f the adoption o f the Constitution 
o f the United States and o f the Constitution o f Texas in 
1876.

The nominating primary, like the nominating convention 
and its predecessors, the caucus, is not the “ election.”  
Nomination is distinct from  election and has been so d if­
ferentiated from  the beginning o f our government.

Nominations in early times were made at the caucus, 
which was usually an inform al gathering. It was not regu­
lated by law and no one regarded it as an “ election.”  Later 
the caucus gave way to the nominating convention, but no 
one considered this an “ election.”  More recently the nom i­
nating conventions have been subject to legal regulations in 
the States. The introduction o f the so-called “ prim ary sys­
tem” is but another phase o f the nominating process.

The question o f parties and their regulation is a political 
one rather than legal. If the plaintiff in error, or any other 
person, is dissatisfied with the regulation adopted by the 
Legislature, the proper, and we believe the only remedy, is



— 6 —

an appeal to the Legislature to repeal or m odify  it rather 
than to the courts for  judicial annulment.

Nor do we believe the District Court o f the United States 
has any jurisdiction in a case o f this character. It is well 
settled that political questions are not within the province 
o f the judiciary. 12 Corpus Juris, 878; Chandler v. Neff, 
298 Fed., 515.

As stated by the Supreme Court o f Texas in the case of 
W aples vs. Marrast, 108 Texas, 11, 184 S. W ., 183:

“ A political party is nothing m ore or less than a body 
o f men associated fo r  the purpose o f furnishing and 
maintaining the prevalence o f certain political prin­
ciples or beliefs in the public policies o f the govern­
ment. As rivals for  popular favor they strive at the 
general election fo r  the control o f the agencies o f the 
government as the means o f providing a course for  
the government in accord with their political prin­
ciples and the administration o f those agencies by their 
own adherents. According to the soundness o f their 
principles and the wisdom  o f their policies they serve 
a great purpose in the life o f a government. But the fact 
remains that the objects o f 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 
o f  the public as are com prised in their membership, 
and they only as members o f the particular organiza­
tion. They perform  no governmental function. They 
constitute no governmental agency. The purpose o f 
their prim ary elections is m erely to enable them to 
furnish their nom inees as candidates fo r  the popular 
suffrage. * * * T o provide nominees o f political
parties fo r  the people to vote upon in the general elec­
tions is not the business o f the State. It is not the busi­
ness o f the State because in the conduct o f the govern­
ment the State knows no parties and can know  none. 
* * * Political parties are political instrumentalities.
They are in no sense governmental instrumentalities.”



The nominating prim ary o f the Dem ocratic party is regu­
lated by its Executive Committee. Though the plaintiff in 
error asserts that he is a Democrat, under the law attacked 
herein, which it should be understood is but an affirmation 
o f the well understood restriction o f the Dem ocratic party 
in Texas, the plaintiff in error is not a Dem ocrat insofar as 
that term applies to an accepted member o f the Dem ocratic 
party at his place o f residence. He has the right in all gen­
eral elections, where political issues and candidates are 
submitted for  election, to vote the Dem ocratic ticket, the 
Republican ticket, or any other which he so desires. Because 
the Dem ocratic party in Texas and in El Paso county holds 
a nominating prim ary, can it be contended that outsiders 
can be forced  upon the party over its expressed dissent. 
If the party should abandon the prim ary and go back to 
the convention or the caucus system, could it be consistently 
maintained that the courts could force upon the convention 
or upon the caucus the plaintiff in error if  the membership 
o f the party, the convention or the caucus was restricted 
against negroes? W e contend that a nominating prim ary 
is purely a political matter and outsiders denied participa­
tion by the party councils cannot demand a redress at the 
hands o f the courts.

Nor can the plaintiff in error attack the act o f the Legis­
lature which declares that negroes shall not participate in 
the Dem ocratic primaries. If the act is but an affirmation 
o f the policy o f the Dem ocratic party in Texas and in El 
Paso County, then certainly the plaintiff in error must abide 
thereby. If the act o f  the Legislature does not coincide 
with the policy o f  the Dem ocratic party, then it is fo r  the 
Executive Committee o f that party, or it is for the duly 
authorized representatives o f that party to take the neces­
sary steps to com bat the enactment.

The plaintiff in error on page 31 o f  his brief cites the 
case o f Love vs. Griffith, 226 U. S., 32. That case is but ad­



— 8—

ditional evidence that negroes were not recognized by the 
Dem ocratic party in Texas as qualified members o f that 
party. But the exclusion o f Love in that case and o f Nixon 
in this in no way interfered with the right o f either o f them 
to vote their choice in the general election.

The crux o f the whole case is the question as to whether 
the nominating prim ary o f a political party is an election 
within the meaning o f the Constitution o f the United States, 
and whether it is an election within the meaning o f the 
Constitution o f Texas. Plaintiff in error on page 27 o f his 
printed brief quotes from  Koy vs. Schneider, 110 Texas, 369, 
218 S. W ., 487, and on page 28 o f his brief from  the case 
o f Anderson vs. Ashe, 130 S. W ., 1046, by the Court o f Civil 
Appeals at Galveston, Texas. I f these two citations were 
the law in Texas, the plaintiff in error w ould be in a better 
position before this court. Unfortunately fo r  him as he 
notes the quotation from  Koy v. Schneider is in the dissent­
ing opinion by Judge Phillips. Distinguished as that jurist 
is in Texas, it is still but his opinion, while the statement o f 
the m ajortty o f the court is the law o f Texas. And in that 
case, the Supreme Court o f Texas holds em phatically that 
a prim ary election is not an election within the meaning 
o f the Constitution o f Texas, and the Legislature in regulat­
ing and controlling primaries is not limited by the provi­
sions o f the Constitution o f Texas respecting elections. In 
this same case, the Supreme Court o f Texas refuses to fo l­
low  Anderson v. Ashe. There can be no doubt so far as 
the law o f Texas is concerned that the Dem ocratic nom i­
nating prim ary held in El Paso in July, 1924, was not an 
election in which the plaintiff in error had a constitutional 
right to vote. In the case o f Chandler v. Neff, 298 Fed., 
515, Judge W est o f the United States District Court for  the 
W estern District o f Texas disposed o f  a case almost iden­
tical with this one, and holds with the Supreme Court o f 
Texas that a prim ary o f  a political party is not an election,



— 9—

and the right o f a citizen to vote therein is not within the 
protection o f the Fourteenth and Fifteenth Amendments to 
the Constitution o f the United States. Nor is this doctrine 
limited in Texas.

In the case o f Riter v. Douglass, 32 Nev., 400, 109 Pac., 
444, the Supreme Court o f Nevada says:

“ There is a substantial distinction in the law between 
the nomination o f a candidate and the election o f  a 
public officer.”

“ Counsel for  the appellant seemingly fa il to appre­
ciate that the electoral test o f an elector spoken o f in 
the Constitution is for  the election o f  public officers and 
not fo r  the election at which party nominees are se­
lected.”

“ Again we find the position o f counsel fallacious in 
failing to keep in m ind the substantial distinction which 
exists between a prim ary election, which is election 
sim ply for  the nomination o f candidates o f the vari­
ous parties, and the election o f public officers, when 
the voters o f all parties at the polls determine from  
among the candidates selected at the prim ary elections 
and independent candidates who are to be the officers 
to administer their affairs o f state. Prim ary election 
at which nominees o f the various parties are selected 
is not to be confounded with the election o f officers 
within the meaning o f  the constitutional right o f elec­
tors; ‘To vote fo r  all officers that are now  or hereafter 
m ay be elected by the people.’ ”

In the case o f State ex rel., Gulden v. Johnson, 87 Minn., 
223, 91 N. W ., 841, the Supreme Court o f Minnesota says:

“ If the election o f candidates to the position o f nom i­
nees is an election within the meaning o f Article 7, o f 
the Constitution, then the prim ary law, as above con­
strued, is unconstitutional. It w ould in certain cases 
deprive the voter o f his privilege to exercise the elec­
tive franchise. * But it is very clear that the elec­
tion o f nominees provided for  in the prim ary law is not



— 10-

the election referred to in the Constitution. The lan­
guage o f Article 7 bearing upon the subject is as fo llow s: 
‘Every male person o f the age o f twenty-one years or 
upward, belonging to either o f the follow ing classes, 
who shall have resided in the United States one year 
and in this State four months next preceding any elec­
tion shall be entitled to vote at such election in the elec­
tion district o f which he shall at the time have been fo r  
ten days a resident for  all officers that now are or here­
after m ay be elective by the people.’ By ‘officers is 
meant the executive or administrative agents o f the 
State or the governmental subdivisions thereof, and 
the election mentioned has reference only to the selec­
tion o f persons to fill such offices. The election thus 
defined cannot reasonably be given so broad an inter­
pretation as to include the selection o f nominees for 
such offices.”

The Supreme Court o f Ohio in the case o f State ex rel., 
W ebber vs. Felton, 77 Ohio St., 554, 84 N. E., 85, says:

“ If the election is one at which m erely the candidates 
o f a party are to be selected, it cannot be an objection 
that electors who do not belong to that party are not 
permitted to take part. That was one o f the evils that 
the legislation was intended to prevent; and, as to the 
test prescribed for  determining an elector’s partisan­
ship, it is im possible to conceive o f a political party 
without the possession, by its members, o f some quali­
fications, and the test prescribed by the statute is the 
usual one, and is not unreasonable. But a prim ary 
election held m erely to name the candidate o f a p o ­
litical party is not an election within the meaning o f 
this section o f the Constitution. That section refers to 
an election o f  officers, and not to the nom ination o f 
candidates.”

This is the situation presented by the pending case. The 
Dem ocratic party in Texas and in El Paso County by rule, 
resolution, custom and instruction to its election agents ex­



— 11

eluded negroes from  its party. The act o f the Legislature 
m erely recognized that which was known of all men and in 
the interest o f the public peace, we think it was well within 
the police powers for  the Legislature to enact the statute 
attacked herein.

In the case o f  Baer vs. Gore, 79 W . Va., 50, 90 S. E., 530, 
533, the Supreme Court o f Appeals o f  W . Va., reiterates 
the same law :

“ The adherents o f each organization participating 
in a prim ary m ay jo in  in selecting the candidates o f his 
party fo r  offices to be filled by the electors o f all p o ­
litical parties at the succeeding general election; and 
while he m ay finally determine to vote therein fo r  one 
or m ore o f the nominees o f any other party, he cannot, 
with propriety, participate in nominating them. That is 
a privilege he has no right to exercise and o f a denial 
thereof he cannot justly com plain. These propositions 
are so fundamental as to be axiomatic. None but un­
reasonable partisans w ill contravert them.”

“ By m any text books and decisions an important 
distinction is noted between a general and a prim ary 
election. They treat a prim ary election m erely as a 
substitute fo r  a nominating caucus convention, not as 
an ‘election’ within the meaning o f that term as used 
in constitutions. So treated, it is a mere matter o f 
statutory regulation within a reasonable exercise o f 
police pow er o f the State predicated on rights reserved 
by the people when not forbidden by the organic law 
o f the municipality. This principle is specially em­
phasized with reference to the qualifications o f electors 
and tests o f  party m embership prescribed by  prim ary 
laws.”

To the same effect are D ooley vs. Jackson, 104 Mo. App., 
21, 78 S. W „  330; M orrow vs. W ip f, 22 S. D., 146, 115 N. W ., 
1124, and M ontgomery vs. Chelf, 118 Ky., 766, 82 S. W ., 388, 
390.

In the case o f State vs. Michel, Secretary o f State, 121



— 1 2 —

Louisiana, 374, 46 So., 435, the Louisiana prim ary law was 
assailed. The court in upholding the law, said among other 
things:

“ It is the very essence o f a prim ary that none should 
have the right to participate in it but those who are in 
sympathy with the ideas o f the political party by which 
it is being held. Otherwise, the party holding the pri­
m ary w ould be at the m ercy o f its enemies w ho could 
participate for  the sole purpose o f its destruction by 
capturing its machinery or foisting upon it obnoxious 
candidates or doctrines. It stands to reason that none 
but Democrats should have the right to participate in 
a Dem ocratic primary, and none but Republicans in a 
Republican primary. A prim ary is nothing but a 
means o f expressing party preference and it w ould 
cease to be that, if by the admission o f outsiders its 
result might be the very reverse o f the party preference. 
If therefore, there could not be a prim ary under our 
Constitution without the admission o f outsiders the 
consequence w ould be that under our Constitution such 
a thing as a prim ary w ould be im possible.”

See also Socialist Party vs. Uhl, 155 Cal., 776, 103 Pac., 
181; People vs. Dem ocratic Committee, 164 N. Y., 335, 58 
N. E „ 124.

This court in the case o f Newberry v. United States, 256 
U. S., 232, 350, 41 Sup. Ct., 469, 65 L. Ed., 13, in the m ajority 
opinion by Mr. Justice M cReynolds holds:

“ The Seventeenth Amendment, which directs that 
Senators be chosen by the people, neither announced 
nor requires a new meaning o f election and the w ord 
now has the same general significance as it did when 
the Constitution came into existence-—final choice o f an 
officer by the duly qualified electors. Hawe v. Smith, 
253 U. S., 221. Primaries were then unknown. More­
over, they are in no sense elections fo r  an office, but 
m erely methods by which party adherents agree upon 
candidates whom  they intend to offer and support for



— 13

ultimate choice by all qualified electors. General pro­
visions touching elections in constitutions or statues are 
not necessarily applicable to primaries— the two things 
are radically different. And this view has been de­
clared by m any State courts.

“ If it be practically true that under present conditions 
a designated party candidate is necessary for  an elec­
tion— a prelim inary thereto— nevertheless his selection 
is in no real sense part o f the manner o f holding the 
election. This does not depend upon the scheme by 
which candidates are put forward. W hether the candi­
date be offered through primary, or convention, or peti­
tion, or request o f a few, or as the result o f his own un­
supported ambition, does not directly affect the manner 
o f holding the election. Birth must precede but it is 
no part o f either funeral or apotheosis.”  P. 257.

W e believe that the definition o f “ prim ary election”  as 
given in Article 3100 o f the Revised Civil Statutes o f Texas 
o f 1925 is good both in law and in fact.

“ Article 3100. The term ‘prim ary election’ as used 
in this chapter, means an election held by the members 
o f an organized political party for  the purpose o f nom i­
nating the candidates o f such party to be voted for at 
a general or special election, or to nominate the county 
executive officers o f a party.”

The plaintiff in error in his printed brief goes at some 
length to assert that the Dem ocratic nominating prim ary 
in Texas is the only real election and that it is the party o f 
his choice and he should be permitted to participate in its 
affairs. The Dem ocratic Party is dominant in Texas today, 
it is true, but the mere fact o f party dom inance in a particu­
lar State at the moment could not change the legal questions 
or the political questions involved in the case. Neither can 
the fact that the plaintiff in error wishes to participate in 
the councils o f the Dem ocratic party change the question. 
To use his own figure, he might wish to participate or be a



— 14—

“ Gentile or a Jew, a Catholic or a Protestant, a farm er or 
a blacksmith, a blonde or a brunette,” but the fact remains 
that differences o f race, o f nature and o f belief might pre­
vent the fulfillment o f his wish in certain o f those parti­
culars.

Negroes indeed are not allowed to vote in Dem ocratic 
primaries, but the Dem ocratic prim ary is conducted by a 
private organization o f men and wom en, financed by that 
private organization, and its function is solely to name can­
didates on whom those men and wom en may concentrate 
at the general elections. To deny any group o f men or 
women, or both, the right to form  such associations as they 
please, and to lay down such qualifications for  membership 
as they please, w ould certainly be to deny a fundamental 
right o f American citizens. W hite people have just as 
much right to organize their own private political party as 
either whites or negroes have to vote at the general elections.

The plaintiff in error has a right under the law o f Texas 
to organize a party o f his own and if he can get others to 
join  with him to nominate candidates fo r  office. This right 
is given to all and constitutes equality before the law.

The Legislature o f a State is presumed to know, and can 
take cognizance o f any existing fact within its border and 
pass such laws as may be necessary to prom ote the safety, 
peace and good order o f the people. It is an “ ancient and 
accepted doctrine,”  to use the w ords o f the Dem ocratic 
platform , and it is well known in Texas that the Dem ocratic 
party o f the State is a white m an’s party. Certainly the 
Legislature o f Texas knows and can take cognizance o f such 
fact, and having m ade equal provision under the law for  
parties admitting negroes to membership, to have their own 
candidates to be voted upon in the general election, cer­
tainly the Legislature can pass a declaratory measure in the 
light o f  existing facts, announcing what is known to all
men.



- 1 5 -

Conclusion.

It is respectfully submitted that the judgm ent rendered 
in this case by the United States District Court for the W est­
ern District o f Texas should be affirmed because:

1. The question involved is political and the court is 
without jurisdiction.

2. The plaintiff in error is not a proper party to attack 
the constitutionality o f the act in question.

3. Plaintiff in error was excluded from  the Dem ocratic 
nominating prim ary by instructions issued by the governor- 
ing body o f that party and his petition so shows.

4. The act o f the Legislature o f Texas attacked is not 
void  as being in conflict with the 14th and 15th Am end­
ments to the Constitution o f the United States.

Respectfully submitted,
Claude Pollard,

Attorney General o f Texas,
D. A. Simmons,

First Assistant Attorney General,.
For the State o f Texas.





A









IN THE

Supreme (Eimrt of tljp lotUb
October T erm, 1926.

No. 117.

L. A. N IXO N , 

against
Plaintiff-in-Error,

0. C. H ERNDON and CH ARLES PORRAS,
Defendants-in-Error.

I n E rror to the  D istrict Court of th e  U nited States 
for the  W estern D istrict of Texas .

REPLY BRIEF FOR PLAINTIFF-IN-ERROR.

LOUIS M A RSH ALL,
M O O RFIELD  STOREY,
A R T H U R  B. SPIN GARN ,
F R E D  C. K N OLLEN BER G, 
R O B E R T J. CH AN NELL,

Of Counsel fo r  Plaintiff-vn-Err or.

The Hecla Press, 57 W arren St., N. T . Tel. W alker 1480.

R E  P R  I N T R O  B Y  T H E
N A T I O N A L  A S S O C I A T I O N  F O R J H E

A D V A N C E M E N  1' O F  C O L O R E D  p  - . O P L t  
6 9  FI  F r H A V E N U E  - I !  - V V O F K

B Y  W H O M  T H I S  C A S E  W A S  C A R R I E R
To T h e  U n i t e d  S t a t e s  S u p r e m e  C o u r t





SUBJECT INDEX.

PAGE

P o i n t  I— The right of a citizen to vote, regardless of 
race, color or previous condition of servitude, is 
denied and abridged by a law which forbids him, 
on account of bis race and color, to vote at a 
primary election held under the laws of Texas. . il

P o in t  I I — The statute under consideration likewise 
offends against the Fourteenth Amendment inas­
much as it is a law abridging the privileges and 
immunities of citizens of the United States, and 
because it denies to persons within its jurisdic­
tion the equal protection of the law s...................... 27

CASES CITED.

PAGE

Ah R ow  v. Nu nan (5 Sawyer 5 5 2 )...................................  32
Anderson v. Ashe (66 Texas Civil App. 262; 22 S. W .

1 0 4 4 ) ................................................................................... 25
Ashby v. W hite (2 Lord Raymond L. D. 938; 3 id.

3 2 0 ) ................................................................................... 20,21
Askforth v. Goodwin (103 Tex. 491; 131 S. W . Rep.

5 3 5 ) ..................................................................................... 20

Barnardiston v. Soame (2 Lev. 114, 1 1 6 )...........................  21
Buchanan v. W arlev (245 U. S. 7 6 ) .................................. 31

Carter v. Texas (177 U. S. 442, 4 4 7 ) ............................... 32
Chandler v. Neff (298 Fed. Rep. 5 1 5 ) ....................10,19, 20



11

FAGB
Ex parte Virginia (100 U. S. 3 3 9 ).....................................  30
Ex parte Yarbrough (110 U. S. 651, 6 6 5 ).....................16,17

Gibson v. Mississippi (162 U. S. 5 6 5 )............................  32
Giles v. Harris (189 U. S. 498, 4 7 5 ) ............................... 22
Green v. Shumway (39 N. Y. 4 1 8 ) ..................................21,22
Guinn v. United States (238 U. S. 3 4 7 )........................  17

Heath v. Rotherham (79 N. J. Law 72; 77 Atl. 520) . 25
Hermann v. Lampe (175 Kv. 1 0 9 )...................................  11

In re Kemmler (136 U. S. 4 3 6 ) .......................................  30

K oy v. Schneider (110 Tex. 3 6 9 ) .....................................  12

Leonard v. Commonwealth (112 Pa. 607; 4 Atl. 220) 25
Lewis Pub. Co. v. Morgan (229 U. S. 301, 3 0 2 )...........  13
Love v. Griffith (266 U. S. 3 2 ) .........................................  23
Luther v. Borden (7 How. 1, 4 2 ) .....................................  19

McPherson v. Blacker (146 U. S. 1, 3 9 ) ........................  30
Myers v. Anderson (238 U. S. 3 6 8 ) ................................. 18

Neal v. Delaware (103 U. S. 3 7 0 ) .................................17,18
Newberry v. United States...........................................8 ,25 ,26

Pembina Co. v. Pennsylvania (125 U. S. 181, 188) . . .  31
People v. Board o f Election Comm’rs (221 111. 9) . .  . . 10
People v. Chicago Election Commissioners (221 111. 9 ;

77 N. E. 3 2 1 ) ....................................................................  25
People v. Deneen (247 111. 289 ; 93 N. E. 4 3 7 ) .............  25
People v. Haas (241 111. 575; 89 N. E. 7 9 2 ) .................. 25
People ex rel. Farrington v. Mensching (1S7 N. Y.

1 8 ) ....................................................................................... 32
People v. Strassheim (240 111. 279; 88 N. E. 821) . . .  25

Re Ah Chong (2 Fed. 7 3 3 ) ........................ ,.........................  32
Re Tiburcio Parrott (1 Fed. 4 8 1 ) ......................................  32
Rogers v. Alabama (192 U. S. 226, 2 3 1 ) ......................  32
Royster Guan Co. v. V irginia (253 U. S. 4 1 2 ) .............  32



PAGE

Smith’s Leading Cases (9th Ed., pp. 464-509)...........21,22
Spier v. Baker (120 Cal. 370; 52 Pac. 6 5 9 ).................. 25
State v. Breffeihl (130 La. 9 0 4 ).......................................  11
State v. Hirsch (125 Ind. 207; 24 N. E. 1062 )...........  25
State ex rel. Moore v. Meharg (287 S. W . Rep. 670) . .  9
Strauder v. West Virginia (100 U. S. 3 0 6 ) .................... 28
Swafford v. Templeton (185 U. S. 4 8 7 )..........................  22

Truax v. Reich (239 U. S. 3 3 ) ............................................ 32

United States v. Reese (92 U. S. 2 1 4 ) ............................... 15
United States v. Texas (143 U. S. 621, 6 4 0 ).................. 19

Virginia v. Rives (100 U. S. 3 1 3 ).....................................  30

W ylie v. Sinkler (179 U. S. 5 8 ) .......................................... 22

Yick W o v. Hopkins (118 U. S. 3 5 6 ) ............................... 32

I l l



INDEX.

t Statutes and Texts .

PAGE
Constitution o f the State of Texas.................................  2, 4
Constitution of the U. S. (13th A m endm ent).................. 15
Constitution of the U. S. (14th A m endm ent).................  2, 3
Constitution of the U. S. (15th Amendment)

2, 3 ,1 2 ,14,17, 25
Constitution of the U. S. (Art. I, Sec. 4) . . .  . i . . . . . . . . .  26
Constitution of tlieU. S. (Art. I, Sec. 8, Subd. 3) . . . .  13
Constitution of the U. S. (Art. I, Sec. 8, Subd. 7) . . . .  12
Constitution o f the U. S. (19th A m endm ent).............. ............. 14,15

Election Law of Texas............... .........................................  8

Federal Corrupt Practices A ct (Sec. 8 ) ........................  25

Merriam on Primary Elections (1 9 0 8 )......................8 ,9 ,1 1
Michigan Law Review (23, p. 2 7 9 ).................................  10

New York Times (July 27, 1 9 2 6 ).....................................  5
New York Times (Aug. 30, 1 9 2 6 ).....................................  6
New York W orld Almanac (1927, p. 3 1 8 ) .................. 4 ,6

Texas Civil Statutes (1923, Art. 3093-A ) ......................  1



IN THE

(Court of tlir luttpfc £>tatro
October Term, 1926.

No. 117.

L .  A. N ix o n ,
Plaintiff-in-Error,

against

C. C. H erndon and Charles Porras, 
Defendants-in-Error.

I n E rror to th e  D istrict Court of th e  U nited States 
for th e  W estern D istrict of Texa s .

REPLY BRIEF FOR PLAINTIFF-IN-ERROR.

The State of Texas lias intervened by special leave of 
this Court in support of the constitutionality o f Article 
3093-A o f the Texas Civil Statutes, enacted by its Legis­
lature in May, 1923. Permission has been granted to  the 
plaintiff-in-error to reply to the contentions o f the State.

The State o f Texas, with a negro population o f 711,694, 
according to the census o f 1920, is, therefore, seeking to 
sustain a statute which declares that “ in no event shall



a negro be eligible to participate in a Democratic primary 
election held in the State of Texas,”  and that if  a negro 
shall vote in a Democratic primary election his ballot shall 
be void and the election officials are required to throw it 
out and not count it. This is in marked contrast with the 
initial paragraph of the Article, that “ all qualified voters 
under the laws and constitution o f the State of Texas who 
is (sic) a bona fide member of the Democratic party, shall 
be eligible to participate in any Democratic primary elec­
tion, provided such voter complies with all laws and rules 
governing party primary elections”  (R e c p .  4 ).

It  is conceded that the plaintiff-in-error, Dr. Nixon, 
though a negro, is a qualified voter under the laws and 
Constitution of the State of Texas, is a bona fide mem­
ber o f the Democratic party and has complied with all the 
laws and rules governing the party primary elections, and 
that the defendants, who were the inspectors at the Demo­
cratic primary held on July 26, 1924, refused to allow him 
to vote solely because he is a negro. It  is this action, 
based upon the mandate o f its Legislature, which excludes 
a negro from voting at a Democratic primary election held 
in that State, which the State o f Texas now seeks to up­
hold.

It  is argued on behalf o f the State that the right o f a 
negro to vote at a primary election does not come within 
the protective provisions o f the Fourteenth and Fifteenth 
Amendments to the Constitution of the United States. 
W e contend that it does, and shall now discuss the validity 
o f the statute pursuant to which the plaintiff’s vote was 
rejected, first considering the applicability o f the F if­
teenth and then that o f the Fourteenth Amendment.



3

P O I N T S .

I.

The right of a citizen to vote, regardless of race, 
color or previous condition of servitude, is denied 
and abridged by a law which forbids him, on account 
of his race and color, to vote at a primary election 
held under the law's of Texas.

(1 ) The Fifteentli Amendment employs the broadest 
and most comprehensive terms to express the idea that a 
citizen o f the United States shall not, on account o f his 
race or color, be debarred from participating in the right 
to  vote. There is no limitation or qualification as to the 
time, occasion, or manner of voting. It  is not confined to 
any particular method or mechanism. It relates to the 
exercise o f the right o f a citizen to give expression to  his 
political ideas and predilections in such a way as to make 
them effective. It forbids not only the denial of that right, 
but also its abridgment, where such denial or abridgment 
is based on race, color or previous condition o f servitude. 
T o deprive a citizen by virtue o f legislative enactment of 
the right to choose his own political party, to compel him 
to affiliate politically with a party with whose principles 
he is not in sympathy, or to reduce his right o f selection 
to a mere shadow, to an idle formality, constitutes a denial 
or abridgment o f the right to vote.

(2 ) Whatever may have been the case in earlier days be­
fore the status o f a political party had developed as it has 
to-day, when the party primary has become an essential 
element in the mechanism of votin g ; when it is recognized 
by statute as one o f the controlling factors o f that process; 
when the proceedings of the primary are regulated by law, 
and when its action is subject to judicial review, as in the 
State o f Texas, it would constitute a total disregard o f the 
realities to  say that voting  at a primary is not voting in 
the constitutional sense of the term. This is particularly



4

true in tlie present instance, where the Legislature of 
Texas, after declaring that all bona 'fide members of the 
Democratic party who are qualified “ voters”  under the 
laws and Constitution o f the State of Texas, have the 
right to participate in a Democratic primary election, 
ordains that “ in no event”  shall a negro have that right. 
There is thus a literal denial and abridgment o f the right 
o f a citizen to vote, solely “ on account of his race, color 
and previous condition of servitude.”

(3 ) The significance o f this statute as a denial and 
abridgment o f the right o f a negro to vote at a Democratic 
primary solely because of his race and color, where every 
other qualified citizen who is a Democrat may vote at such 
primary, becomes apparent when one takes cognizance of 
the political conditions which now prevail in those States 
where negroes are most numerous. The New York W orld  
Almanac for 1927, at page 318, shows, according to  the 
census o f 1920, the white and negro population, in the 
follow ing Southern States, to have been :

W hite Negro
Alabama....................... 1,447,032 900,652
A rkansas..................... 1,279,757 472,220
F lo r id a ........................ 638.153 329,487
G eorg ia ....................... 1,689,114 1,206,365
L ou isian a ................... 1,096,611 700,257
M ississippi................. 853,962 935,184
North Carolina . . . . 1,783,779 763,407
South Carolina......... 818,538 864,719
T e x a s ........................... 3,918,165 741,694
V irginia........................ 1,617,909 690,017

A ll o f the United States Senators from these several 
States are Democrats. Of the 10 members o f the House 
o f Representatives from  Alabama, all are Democrats, as



are all the 7 members from Arkansas, the 12 members 
from Georgia, the 8 members from Louisiana, the 8 mem­
bers from Mississippi, the 10 members from North Caro­
lina, the 10 members from South Carolina, the 10 mem­
bers from Virginia, the 4 members from Florida and 17 of 
the 18 members from Texas.

The Governors o f all o f these States are Democrats. 
A t the election for Governor o f  Texas held in 1926, Mr. 
Moody, then Attorney General, upon whose motion the 
right o f the State o f Texas to intervene in this case was 
granted, received S9,263 votes, while Haines, the Repub­
lican candidate, received 11,354 votes. It is significant, 
however, that at the Democratic primary election held in 
1926, hundreds o f thousands o f votes were cast, there 
being a heated contest in which there were six candidates 
for  Governor, the leaders being Mr. Moody and Mrs. Fer­
guson. None of the candidates having received a m ajority 
o f the votes received at the first voting, pursuant to the 
law o f the State o f Texas, another vote was taken at a 
second election, which was confined to the two candidates 
who had received the highest number o f votes at the first 
primary.

By way of contrast of the vote cast at the general elec­
tion for Governor above mentioned, and the vote cast at 
the two Democratic primary elections held in 1926, let us 
call attention to the results of these primary elections. 
At the Texas Democratic primary election held on July 
24, 1926, as reported in the N ew  York Times of July 27, 
1926, the follow  votes were cast for the candidates named :

M ood y ......................................................  366.954
F ergu son ................................................  252,425
D a v ison ................................................... 110,113
Zim m erm an...........................................  2,421
J oh n ston ................................................  1,830
W ilm an s.................................................  1,443

Making a total vote o f ....................  735,186



G

A t the “ run-off primary election”  held on August 28, 
1926, for the choice between the two candidates who at 
the first election received the largest vote, as reported in 
the New York Times o f August 30, 1926—

Mr. Moody received...............  458,669 votes and
Mrs. Ferguson received...........  245,097

Making a total vote o f ......... 703,766

This means that while the total vote received by the 
Democratic gubernatorial candidates at the first election 
was 735,186 and at the second was 703,766, the vote cast 
for the Democratic candidate for  Governor at the general 
election was only 89,263, or a little more than 12 per cent, 
o f the votes cast at the first primary election, and some­
what less than 13 per cent, o f the votes cast at the “ run­
off”  primary election.

F or further illustration, it appears from the N ew York  
W orld Almanac that in 1920 Mr. Cox, the Democratic can­
didate for President, received in South Carolina 64,170 
and Mr. Harding 2,244. In 1926, Richards, Democratic 
candidate for Governor, was elected without opposition, 
and Smith, Democrat, was likewise elected without oppo­
sition as United States Senator. In a recent publication 
it appeared that at the election held in 1926 for  members 
o f the House o f Representatives in South Carolina, the 
aggregate vote received by all o f the Democratic candi­
dates was a little over 10,000. In most o f the districts 
there was no opposition to them. Let this fact be con­
trasted with the population, white and black, o f South 
Carolina, and the returns of the Democratic primary elec­
tions held in that. State.

In  1906 the Democratic candidates for  Governor and 
United States Senator were elected without opposition. 
That was likewise true in Mississippi, and o f the election



I

held in Louisiana in 1926 for United States Senator. In 
1924 the Democratic candidate for Governor in that State 
received 66,203 votes, and the Republican candidate 1,420. 
Similar conditions obtained in other o f the States.

(4 ) It is thus evident that in these States, including 
Texas, party lines are so drawn that a nomination in 
the Democratic primary is equivalent to an election. 
The real contest takes place in the primary or pre­
liminary election. The general election is nothing 
more than a gesture, in which but few participate, 
everything having been determined for all practical pur­
poses at the primary election ; so much so that the Re­
publican party, such as there is, contents itself by occa­
sionally going through the motions o f voting, so that, in 
effect, the Democratic candidates chosen at the primary 
election are unopposed at the general election. If, there­
fore, negroes, who are in good faith attached to  the prin­
ciples o f the Democratic party and are otherwise qualified, 
are prevented from voting at a Democratic primary, they 
are virtually denied the right to vote, so far as the right 
possesses any value. The mere fact that they, too, may 
go through the form of casting a vote at the general elec­
tion, in ratification o f what has been done at the primary, 
is a tragic joke. Their voice is not heard. They have the 
alternative o f absenting themselves from the polls or of 
voting for candidates who may be inimical to them. They 
are prevented from  casting their votes in the primary for 
such candidates as may appreciate their problems and 
sympathize with them in their difficulties and to some 
extent, at least, may desire to relieve their hardships. 
Though citizens, they are rendered negligible, because their 
votes, to all intents and purposes, have been nullified. To 
them the right of suffrage would cease to be that thing of 
substance which it was intended to  be, and would be con­
verted into a useless toy, a Dead Sea apple, the lifeless



8

corpse of a constitutional right, i f  the legislation now un­
der consideration were to be upheld.

I f  the Legislature of Texas were sufficiently concerned 
in the Republican party to make it worth while, it might 
likewise provide that negroes shall not be permitted to 
vote at a Republican primary, or, so far as that is con­
cerned, at any other primary. It is significant that the 
Election Law of Texas, while permitting other political 
primaries to be held, limits the exclusion of the negro vote 
to the Democratic primary elections, but it is conceiv­
able that it might have extended such exclusion to  all 
primaries. Then what would be the status o f the negro 
voters? Instead o f only the Democratic negroes, all 
negroes would be literally disfranchised.

(5 ) That this is not an imaginative fear, let us call at­
tention to what Mr. Chief Justice W hite said in the course 
of his opinion in N ewberry v. United States (p. 267) :

“ The large number o f states which at this date 
have by 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 convic­
tion that the relation of the primary to  the election 
is so intimate that the influence o f the former is 
largely determinative o f the latter. I have ap­
pended in the margin a statement from a publica­
tion on the subject, showing how well founded this 
conviction is and how it lias come to pass that in 
some cases at least the result of the primary has 
been in substance to render the subsequent election  
m erely perfunctory.”

The publication to which reference is made is Merriam  
on Prim ary E lections, published in 1908, where the author 
says:

“ In many western and southern states the direct 
primary method has been applied to the choice o f



9

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 
o f an election, as there is but one effective party 
in that section o f the country.”

That this fact is recognized by the Courts of Texas is 
shown in State ex  rel. M oore v. Meharg, 287 S. W . Rep. 
G70, decided by the Court of Civil Appeals o f Texas on 
October 9, 192G. That was an action brought to enjoin 
the Secretary of State and other officials from placing the 
name o f one McFarlane as the Democratic nominee upon 
the ballots for  the next election on the ground that he had 
expended more money in the primary campaign than 
allowed by statutes. After reviewing the statutes of Texas 
regulating primary elections, the Court sa id :

“ Other articles of the statutes clearly show that 
it was the intention of the Legislature that the 
candidate in such a race who receives a majority 
of the votes cast shall be considered the nominee 
for  the office and his name shall be placed upon 
the ballots to be cast in the next general election. 
That general purpose of the statutes should not 
be disregarded unless it clearly appears from the 
provisions of article 3170, and other provisions of 
chapter 14, tit. 50, referred to above, that the candi­
date who has received a m ajority o f the votes has 
violated the provisions o f that article. Gray v. 
State, 92 Tex. 396, 49 S. W . 217; Ashford v. G ood­
win, 103 Tex. 491, 131 S. W . 535, Ann. Cas. 1913A, 
G99. Indeed, it is a m atter of common knowledge 
in this state that a D em ocratic primary election, 
held in accordance with our statutes, is virtually 
decisive of the question as to who shall he elected  
at the general election. In  other words, hairing 
certain exceptions, a prim ary election is equivalent 
to  a general election.”

Professor Merriam in his book on Prim ary Elections, 
which was published in 1908, since which time the ideas



10

by him expressed have been greatly extended, further says 
at page 116:

“ The theory of the party as a voluntary associa­
tion has been completely overthrown by the contrary 
doctrine that the party is in reality a governmental 
agency subject to legal regulation and control. The 
element of public concern in the making o f nomi­
nations has been strongly emphasized, and the right 
of the Legislature to make reasonable regulations to 
protect and preserve the purity and honesty o f elec­
tions has been vigorously asserted.”

In 23 Michigan Law Review 279, the decision in Chandler 
V. Neff, 298 Fed. Rep. 515, on which the State relies, re­
ceived elaborate comment in an able article written by 
Meyer M. Brown, Esq. It will be found worthy o f con­
sideration in its entirety. The follow ing passages are 
especially in p o in t:

“ W hat in their nature is peculiar to primary elec­
tions that should differentiate them from the pub­
lic elections and exempt them from the operation 
o f the Constitution? It has been pointed out that 
the right to choose candidates for public office 
whose names shall appear on the official ballot is 
as valuable as the right to vote for them after they 
are chosen, and is o f precisely the same nature. 
P eople  v. Board of E lection  Gomm’rs, 221 111. 9. 
The primary election has the effect o f  selecting from 
the large possible field of choice for the office a 
few candidates whose names are to be printed on 
the ballot at the general election. This final elec­
tion is a further, but similar, lim itation; it  is the 
selection of one from the few. That the second 
selection should be called an election while the 
first should not, would seem like an unreasonable 
distinction. In accord with this view is the hold­
ing that since, under the primary system, there is 
scarcely a possibility that any person will or can 
be elected to office unless he shall be chosen at a



11

primary election, a primary election must be re­
garded as an integral part o f the process of choos­
ing public officers and as an election within the 
meaning o f the constitutional provisions defining 
the rights of voters. People v. Board of Election  
Comm’rs, supra. * * * Modern primary elections 
have not only the same essential nature as the gen­
eral elections, as shown above, but the machinery 
and details o f conducting them are generally the 
same in both cases. Primary elections are held at 
the same public polling places as the general elec­
tions, with the same election officials in charge. 
The ballots which are printed and paid for by the 
state are counted by government election officials, 
and the names of the winners are printed on the 
ballots at the general election. In case o f a pri­
mary election dispute, recourse is had to the same 
election commissioners or judges o f election as in 
the case o f general elections. Not only is the ex­
pense o f holding primaries paid by the government 
out o f the general taxes, but they are completely 
controlled and regulated by the state, rather than 
by party leaders or bosses as was the case under 
the ‘K ing Caucus’ regime, the convention system 
and the early form of primary. Hermann v. Lam.pe, 
175 Ky. 109. The modern primary election is thus 
seen to be on a part with general elections in re­
gard to their actual conduct, public nature and 
governmental control. * * *

W hile the general elections are usually thought 
of as being o f more importance than the primaries, 
the contrary is often true, for in many states the 
voting strength and solidarity o f some one party is 
such that the contest for nomination of candidates 
is practically equivalent to an election. State v. 
Breffeihl, 130 La. 904. In Texas, victory in a pri­
mary, on the Democratic side, means practically 
certain election. Merriam, p. 84. ‘No court can 
blind its eyes to this universally known fact. * * * 
Of what use is it to enforce the Constitution onlv 
in general elections, when, in fact, the primary elec­
tions are the decisive elections in this State In the



12

choosing of public officers.’ Cli. J. Phillips, in 
K oy  v. Schneider, 110 Tex. 3G9.”

(6 ) But it is argued that the Fifteenth Amendment does 
not expressly refer to voting at primaries. That is true. It 
does not descend to particulars. It deals with the all- 
inclusive subject, “ the right to vote,”  and, unless intel­
lectual blindness were to be attributed to the earnest and 
high-minded statesmen who sponsored this Amendment, 
that right must be deemed to relate to any form of voting 
and for  any purpose and to any part o f the process 
whereby what is intended to  be accomplished by voting 
is brought about. There is certainly nothing in this 
Amendment which declares that voting at primaries is to 
be excepted from its scope.

It  is said that in 1870, when the Fifteenth Amendment 
was adopted, there were no primary elections and that, 
therefore, the right to vote at a primary election could not 
have been contemplated. W e reply that in 1870 the so- 
called Australian ballot was unknown. Voting machines 
had not been invented, and other possible methods o f vot­
ing than the primitive methods then in vogue, e. g., voting 
viva voce, or by a show of hands, or by a ballot thrust into 
the hands of the voter by the poll workers, had not been 
conceived. Neither had the initiative, the referendum, the 
recall, been introduced into our political vocabulary. Can 
anybody have the hardihood to claim that for these rea­
sons the newer methods and purposes o f voting are not 
covered by the Constitution? Its language is adequate to 
include any act or conception or purpose which relates to 
or substantially affects the free exercise in its essence of 
the right to vote.

When, by Article I, Section 8, subdivision 3, o f the Con­
stitution, in seven words, Congress was given “ the power 
to  regulate commerce among the several States,”  our in­
strumentalities o f commerce were limited to stage coaches



13

and wagons on land and to sloops, rafts and rowboats on 
the water. The articles which then came within the scope 
of commerce were pitifully few, compared with its present 
vast expansion. But this simple phrase sufficed to include, 
as they were from time to time devised, as instrumen­
talities of commerce, steamboats, railroads, aeroplanes, 
the telegraph, the telephone, and the radio. They likewise 
became the authority for  the creation o f the Interstate 
Commerce Commission, the Federal Trade Commission, 
the enactment o f the Employers’ Liability Act, and numer­
ous other far-reaching agencies for  the regulation of com ­
merce.

Subdivision 7 of the same section empowered Congress 
“ to establish post-offices and post-roads.”  Yet who in 1787 
would have conceived the possibility, latent in these words, 
in reference to which Mr. Chief Justice W hite said, in 
Lewis Publishing Co. v. Morgan, 229 U. S. 301, 302:

“ And the wise combination of limitation with 
flexible and fecund adaptability of the simple yet 
comprehensive provisions o f the Constitution are so 
aptly illustrated by a statement in the argument of 
the Government as to the development of the postal 
system, that we insert it as follow s:

‘Under that six-word grant of power the great 
postal system of this country lias been built up, 
involving an annual revenue and expenditure of 
over five hundred millions of dollars, the mainte­
nance o f 60,000 post offices, with hundreds of thou­
sands of employes, the carriage of more than fifteen 
billions o f pieces of mail matter per year, weighing 
over two billion of pounds, the incorporation of rail­
roads, the establishment of rural free delivery sys­
tem, the money-order system, by which more than 
a half a billion of dollars a year is transmitted from 
person to person, the postal savings bank, the par­
cels post, an aeroplane mail service, the suppression 
of lotteries, and a most efficient suppression of



14

fraudulent and criminal schemes impossible to l>e 
reached in any other way.’ ”

These illustrations relate only to material things. In 
so far as they are concerned, the elasticity of the constitu­
tional language has been marvelously vindicated. Is it 
possible that the language of the same Constitution relat­
ing to human rights, and intended to bring about the 
realization of the noble conception of human equality and 
the prevention of hateful discrimination, shall be crip ­
pled, hampered and deprived of its very life by a narrow 
and technical interpretation, which would defeat its un­
derlying purpose? Is it possible that the expression of an 
exalted human purpose shall after half a century be made 
meaningless by the employment of an artificial mechanism?

There is still another illustration which adds to the 
strength of our contention. It is afforded by the Nine­
teenth Amendment. Its form and language are identical 
with the terms of the Fifteenth Amendment until we reach 
the last words. Both beg in :

“ The rights of citizens of the United States to 
vote shall not be denied or abridged by the United 
States or by any State on account o f * *

The Fifteenth Amendment continues with the words 
“ race, color, or previous condition of servitude.”  The 
Nineteenth Amendment continues with the single word 
“ sex.”

Nobody to-day pretends that a woman may not take 
part in a primary election without further authority than 
that conferred by the Nineteenth Amendment, so long as 
she possesses the other qualifications requisite to the exer­
cise o f the right of suffrage. In other words, she may not 
be prevented from voting at a primary election on account 
o f her sex. Of course, under the Texas statute, if she is a



negro, her sex would not save her from its discriminatory 
purpose. It is true that when the Nineteenth Amendment 
came into force on August 26, 1920, voting at primary 
elections, unknown fifty years before, had become familiar. 
Yet, would it not be an absurdity to say that in 1920 the 
right to vote, so far as it related to women, included the 
right o f voting at a primary election, whereas at the same 
time the right of a negro to vote at a primary election did 
not exist because when the Fifteenth Amendment was 
adopted there were no primary elections? The provisions 
of the Nineteenth Amendment might very well have been 
included by an amendment to Article 15 o f the Amend­
ments to the Constitution, so that the article might have 
read : “ The rights o f citizens of the United States to vote 
shall not be denied or abridged by the United States or by 
any State on account o f sex, race, color or previous condi­
tion o f servitude.”  Could it then have been contended 
that under such a provision of the Constitution the right 
o f women to vote at primaries could not be denied or 
abridged, but that the right of negroes to vote could never­
theless be denied and abridged, because the same words 
had two different meanings due to the fact that they origi­
nated in two different periods o f our social development?

(7 ) The history of the Thirteenth, Fourteenth and F if­
teenth Amendments discloses that it was the purpose of the 
framers to make them self-executing from the moment of 
their adoption, and to confer upon the negroes ipso facto  
political equality.

In United States v. Reese, 92 U. S. 214, Mr. Justice 
Hunt, although his was a dissenting opinion, made the 
statement which has never been questioned:

“ The existence of a large colored population in 
the Southern States, lately slaves and necessarily 
ignorant, was a disturbing element in our affairs.



it;

It could not be overlooked. It confronted us always 
and everywhere. Congress determined to meet the 
emergency by creating a political equality, by con­
ferring upon the freedman all the political rights 
possessed by the white inhabitants of the State. It 
was believed that the newly enfranchised people 
could be most effectually secured in the protection 
of their rights o f life, liberty, and the pursuit of 
happiness, by giving to them that greatest of rights 
among freemen— the ballot. Hence the Fifteenth 
Amendment was passed by Congress, and adopted 
by the States. The power of any State to deprive 
a citizen of the right to vote on account of race, 
color, or previous condition o f servitude, or to im­
pede or to obstruct such right on that account, was 
expressly negatived. It was declared that this right 
of the citizen should not be thus denied or abridged.

The persons affected were citizens of the United 
States; the subject was the right o f these persons 
to vote, not at specified elections or for specified 
officers, not for Federal officers or for State officers, 
but the right to vote in its broadest terms.”

In E x parte Yarbrough, 110 U. S. 651, 665, Mr. Justice 
Miller said:

“ W hile it is quite true, as was said in this court 
in United States v. R eese, 92 U. S. 214, that this 
article gives no affirmative right to the colored man 
to vote, and is designed primarily to prevent dis­
crimination against him whenever the right to vote 
may be granted to others, it is easy to see that 
under some circumstances it may operate as the 
immediate source o f a right to vote. In all cases 
where the former slave-holding States had not re­
moved from their Constitutions the words ‘white 
man’ as a qualification for  voting, this provision 
did, in effect, confer on him the right to vote, be­
cause, being paramount to the State law, and a part 
of the State law, it annulled the discriminating 
word white, and thus left him in the enjoyment of 
the same right as white persons. And such would



17

be the effect of any future constitutional provision 
of a State which should give the right of voting 
exclusively to white people, whether they be men 
or women. Neal v. Delaware, 103 U. S. 370.

In such cases this Fifteenth article of amendment 
does, proprio vigore, substantially confer on the 
negro the right to vote, and Congress has the power 
to protect and enforce that right.

In the case of United States v. Reese, so much 
relied on by counsel, this court said in regard to 
the Fifteenth Amendment, that ‘it lias invested the 
citizens of the United States with a new constitu­
tional right which is within the protecting power of 
Congress. That right is an exemption from dis­
crimination in the exercise o f the elective franchise 
on account of race, color, or previous condition of 
servitude.’ This new constitutional right was 
mainly designed for citizens o f A frican descent. 
The principle, however, that the protection of the 
exercise of this right is within the power of Con­
gress, is as necessary to the right o f other citizens 
to vote as to the colored citizen, and to  the right to 
vote in general as to the right to be protected against 
discrimination.”

In Guinn v. United States, 238 U. S. 347, Mr. Chief Jus­
tice White, considering the Fifteenth Amendment, said 
at page 362:

“ W hile in the true sense, therefore, the Amend­
ment gives no right o f suffrage, it was long ago 
recognized that in operation its prohibition might 
measurably have that effect; that is to say, that as 
the command of the Amendment was self-executing 
and reached without legislative action the condi­
tions of discrimination against which it  was aimed, 
the result might arise that as a consequence of the 
striking down of a discriminating clause a right of 
suffrage would be enjoyed by reason of the generic 
character o f the provision which would remain after 
the discrimination was stricken out. E x parte Yar­
brough, 110 U. S. 651; Neal v. Delaware, 103 U. S.



IS

370. A  fam iliar illustration of this doctrine re­
sulted from the effect of the adoption of the Amend­
ment on state constitutions in which at the time of 
the adoption of the Amendment the right of suffrage 
was conferred on all white male citizens, since by 
(lie inherent power of the Amendment the word 
white disappeared and therefore all male citizens 
without discrimination on account of race, color or 
previous condition of servitude came under the 
generic grant of suffrage made by the State.

W ith these principles before us how can there be 
room for any serious dispute concerning the repug­
nancy o f the standard based upon January 1, I860 
(a  date which preceded the adoption of the F if­
teenth Amendment), if the suffrage provision fixing 
that standard is susceptible of the significance 
which the Government attributes to it? Indeed, 
there seems no escape from the conclusion that to 
hold that there was even possibility for dispute on 
the subject would be but to declare the Fifteenth 
Amendment not only had not the self-executing 
power wdiich it has been recognized to have from 
the beginning, but that its provisions were wholly 
inoperative because susceptible o f being rendered 
inapplicable by mere form s of expression embodying 
no exercise o f judgment and resting upon no dis­
cernible reason other than the purpose to disregard 
the prohibitions of the Amendment by creating a 
standard of voting which on its face ivas in sub­
stance but a revitalization of conditions which when 
they prevailed in the past had been destroyed by the 
self-operative force o f the Amendment

In M yers v. Anderson, 238 U. S. 368, it was held that 
while the Fifteenth Amendment does not confer the right 
of suffrage on any class, it prohibits the States from de­
priving any person of the right o f suffrage whether for 
Federal, State or municipal elections. A State may not 
establish a standard existing prior to the adoption of that 
Amendment and which was rendered illegal thereby. In



19

that case counsel liad argued with great seriousness that 
the words “ right to vote”  as used in the statutes or con­
stitutions usually meant the right to vote at elections of a 
general public character, and not at municipal elections, 
and that they did not in any event mean or refer to the 
right to vote in corporate bodies created solely by legis­
lative will, and wherein such right is dependent altogether 
upon legislative discretion, as in municipal corporations. 
That contention was rejected.

(8 ) It has also been argued that the question here in­
volved is a political question, and on the authority of 
Chandler v. N eff, 298 Fed. Rep. 515, it is claimed that such 
questions are not within the province of the judiciary.

Political questions which are not within the province 
of the judiciary, where the power to deal with them has not 
been conferred by express constitutional or statutory pro­
visions, are not such as relate to the maintenance of civil, 
social or even political rights conferred on the citizen by 
the Constitution or a statute, or even such as exist at 
common law.

The phrase “ political questions”  is ordinarily used to 
designate such questions as lie outside of the scope of 
the judicial power, as for  instance, where the issue arises 
as to which of two rival governments is legitimate. This 
is illustrated by Luther v. B o r d e n 7 How. 1, 42. Such 
questions also arise where the Federal Government has 
recognized a state or foreign government, or a sovereign 
de jure  or de facto  of a particular territory. W hether a 
state of war exists; or what is the political status of a 
state of the U nion; or whether the government o f a State 
has ceased to be republican in form by reason of the 
adoption of the Initiative and Referendum are political 
questions. But the determination of a boundary between 
two states presents a judicial and not a political ques­
tion ( U. 8. v. Texas, 143 U. S. 621, 640).



2 0

So, too, the questions of whether an officer elected by 
the people or appointed by the Governor has the qualifica­
tions required by law, or where a county seat is, or 
whether a law creating a new county violates a provision 
o f the Constitution, which limits the area of a county to be 
erected or of the county from which the territory is taken; 
or whether a m ajority in fact of the votes cast on a propo­
sition is by fraud converted into a minority on the face 
o f the election returns, are judicial.

By the Election Laws of Texas the proceedings of 
primary elections are subject to judicial review (Ashforth  
V. Goodwin, 103 Tex. 491, 131 S. W . Rep. 535).

The present case does not involve a political question in 
the sense in which that phrase is properly used. It  doubt­
less relates to a political right— the exercise o f suffrage. 
But in the same sense freedom of speech, and of the press, 
o f the right of free exercise of religion, the right of peace­
able assembly, of petition to the Government for redress of 
grievances, are political rights, as is the right to life, lib ­
erty and property and o f being protected against the denial 
o f the equal protection of the laws. A  citizen who is de­
prived o f  these rights may seek i*edress for  the injury 
inflicted and protection against injury threatened in the 
Courts. The books are full of precedents in which the 
Courts have intervened on behalf of those who complain 
of the invasion of these precious rights. This is especially 
true where redress is sought in an action at law, as in the 
present case. Chandler v. N eff was a suit in equity.

Even at common law the right to maintain an action 
at law against an election returning officer for refusing to 
recognize an elector’s right to vote was enforced in the 
great case of Ashby  v. W hite, 2 Lord Raymond Rep. 938, 
3 id. 320; 1 Smith’ s Leading Cases, 9th Ed., pp. 464-509. 
There Ashby, who was a qualified voter of the Borough of 
Aylesbury, offered his vote at an election for members o f 
Parliament. The defendants refused to permit him to



21

vote, and two burgesses o f that borough were elected to 
Parliament, “ he, the said Matthias Ashby, being excluded 
as before set forth, without any vote o f him, the said 
Matthias Ashby * * * to the enervation of the aforesaid 
privilege of him, the said Matthias Ashby.”  Justices 
Gould, Powys and Powell held that the action was not 
maintainable. Chief Justice H olt held that it was. The 
case was then taken before the House o f Lords, where a 
judgment was given for the plaintiff by fifty Lords against 
sixteen. When judgment was thereafter rendered for  the 
plaintiff by Chief Justice Holt, he closed his remarks with 
the impressive statem ent:

“ Although this matter relates to the parliament, 
yet it is an injury precedaneous to the parliament, 
as my Lord Hale said in the case of Barnardiston 
v. Soarne, 2 Lev. 114, 116. The parliament cannot 
judge o f this injury, nor give damage to the plain­
tiff for it : they cannot make him a recompense. 
Let all people come in, and vote fa irly : it is to sup­
port one or the other party to deny any man’s vote. 
By my consent, if  such an action comes to be tried 
before me, I w ill direct the jury to make him pay 
well for it ; it is denying him his English right: 
and if this action be not allowed, a man may be 
forever deprived o f it. I t  is a great privilege to 
choose such persons as are to hind a man’ s life and 
property by the laves they make.”

The subsequent history o f Ashby  v. W hite  constitutes 
an important chapter in English constitutional history. 
A  furious controversy was waged between the Houses of 
Lords and Commons, as is set forth on page 506 of the 
note to Ashby  v. W hite in Smith’s Leading Cases and in 
Volum e 2  o f Hollands Constitutional H istory o f England 
(6th E d .), 436-439', 444.

A  similar precedent is afforded by the case o f Green v. 
Shumway, 39 N. Y. 418, where the inspectors o f an elec­
tion held for  the purpose o f choosing delegates to  a con-



22

stitutional convention refused to accept the vote of an 
elector who declined to take the “ test oath”  prescribed by 
the act relating to the election of such delegates) and 
which was not applicable to voters at a general election. 
The provision of the statute requiring such oath was held 
to be unconstitutional, and, consequently, the rejection of 
the vote was held to constitute a cause o f action inde­
pendently o f any statutory authority.

In W ylie  v. Sinkler, 179 U. S. 58, it was held that the 
Circuit Court of the United States had jurisdiction o f an 
action brought against election officers of the state to re­
cover damages for refusing the p la in tiffs vote for a mem­
ber o f Congress; and in Swafford v. Templeton, 185 U. S. 
487, there was a similar ruling.

Eeferring to these cases in his dissenting opinion in 
Giles v. Harms, 189 U. S. 498, Mr. Justice Harlan said 
that they “ recognized that the deprivation of a man’s 
political rights (those cases had reference to the elective 
franchise) may properly be alleged to have the required 
value in money”  within the jurisdiction of the require­
ment.

Giles v. Harris, 189 U. S. 475, in no way conflicts with 
our contention, that being a suit in equity to compel the 
Board of Registrars to enroll the names o f themselves and 
other negroes upon the voting lists of the county in which 
they resided. The decision was based upon the ground 
that it was impossible for the Court to grant the equitable 
relief which was asked. The complaint was characterized 
as “ a bill for  a mere declaration in the air.”  The relief 
asked for the right of registration under what was de­
clared to be a void instrument. It was also held that a 
court of equity could not take jurisdiction because it could 
do nothing to  enforce any order that it might make. In 
the course o f his opinion Mr. Justice Holmes said, on the 
authority of W ylie  v. Sinkler and Swafford v. Tem pleton:



23

“ W e have recognized, too, that the deprivation 
o f a man’s political and social rights properly 
may be alleged to involve damage to that amount, 
capable of estimation in money.”

In the present case the action is one at law for damages 
occasioned by the deprivation of the plaintiff of his politi­
cal and social rights.

L ovev . Griffith, 2GG U. S. 32, was likewise a bill in equity 
filed in February, 1921, by the plaintiffs, who were quali­
fied electors o f the Democratic political faith, to enjoin 
the City Democratic Executive Committee of Houston, 
Texas, from enforcing a rule that negroes could not be 
allowed to vote in the Democratic city primary election 
to be held on February 9, 1921. The State Court in the 
first instance dismissed the bill. On appeal to the Court 
o f Civil Appeals of the State the case came up for hearing 
months after the election, and it was decided that the 
cause of action had ceased to exist and that therefore the 
appeal would not be entertained. In that situation the 
case came before this Court. Mr. Justice Holmes said :

“ I f  the case stood here as it stood before the 
court of first instance it would present a grave 
question o f constitutional law  and we should be 
astute to avoid hindrances in the way o f taking it 
up. But that is not the situation. The rule prom ul­
gated by the Democratic Executive Committee was 
for  a single election only that had taken place long 
before the decision of the Appellate Court. No con­
stitutional rights o f the plaintiffs in error were in­
fringed by holding that the cause of action had 
ceased to exist. The bill was for an injunction 
that could not be granted at that time.”

As has been already pointed out, the present action is 
one at law for damages, and therefore does not come within



24

the ruling made in the case cited. Moreover, it is signifi­
cant that that case arose two years before the enactment 
o f the statute which we are now attacking. It merely 
involved a rule o f the Democratic Executive Committee of 
Houston. Here, we are confronted by an A ct of the Legis­
lature sought to be enforced by the State of Texas and 
directed against a component part o f the citizenry of the 
State. W e are contending against the validity o f the leg­
islation of the State and not merely against the action of 
a Democratic executive committee taken pursuant to that 
legislation. From  this statement we do not wish it to be 
inferred that Ave entertain any doubt as to the right of 
a negro citizen otherwise qualified to vote to attack the 
validity o f the action o f such a committee excluding him 
from  voting on account o f his race or color, even in the 
absence o f legislation. It is likewise significant that in 
the case just cited this Court recognized that if the case 
stood here as it did before the court of first instance, it 
would “ present a grave question o f constitutional law.”

(9 ) The stress of the argument o f the State rests on 
the proposition that the primary of a political party is not 
an election within the meaning o f the Constitution of the 
United States, and that is stated to  be “ the crux o f the 
whole case.”

It  has, of course, been observed that we have not referred 
to any constitutional provision which mentions the word 
“ election.”  Our reliance is upon the Fifteenth Amend­
ment, which relates to “ the right to vote”  and which for­
bids the denial or abridgment o f that right. We are not, 
therefore, concerned with the decisions that have been 
cited at pages 9 to 13 of the State’s brief. In none of 
them is there any question as to the right to  vote. EA’en 
as to the propositions discussed in those cases there is a



contrariety o f opinion in the authorities. The following 
are opposed to those cited :

People v. Chicago Election Commissioners, 221 
111. 9 ; 77 N. E. 321;

People v. Strassheim, 240 111. 279; 88 N. E. 821;
People v. Haas, 241 111. 575; 89 N. E. 792;
People v. Deneen, 247 111. 289; 93 N. E. 437;
State v. Hirsch, 125 Ind. 207; 24 N. E. 1062;
Heath  v. Rotherham, 79 N. J. Law 72; 77 Atl. 

520;
Spier v. Baker, 120 Cal. 370; 52 Pac. 659;
Leonard v. Commonwealth, 112 Pa. 607; 4 Atl. 

220;
Anderson  v. Ashe, 66 Texas Civil App. 262; 22 

S. W . 1044.

The State’s principal reliance is on the decision in N ew­
berry  v. United States, 256 U. S. 232, which involved the 
constitutionality o f Section 8 of the Federal Corrupt Prac­
tices Act, which undertook to  limit the amount o f money 
which the candidates 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 o f candidates 
for  a seat in the Senate, the Fifteenth Amendment was 
in no way involved.

The meaning o f the phrase “ the right to  vote”  was not 
and could not have been considered, since there had been no 
denial or an abridgment o f that right on account o f race, 
color, previous condition o f servitude, or o f sex. The sole 
constitutional question involved concerned the interpreta­
tion to be given to Article I, Section 4, of the Constitution, 
which provides:

“ The times, places and manner o f holding elec­
tions for senators and representatives, shall be pre-



2(5

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 o f holding 
elections”  involved the right to regulate the use o f money 
in connection with the primary election of candidates for 
the Senate and House o f 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 A rti­
cle I were those wherein Senators should be chosen by 
legislatures and Representatives by voters “ possessing the 
qualifications requisite for electors o f the most numerous 
branch o f the state legislature.”

It  was likewise held that the Seventeenth Amendment 
did not modify Article I, Section 4, which was the source 
o f 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 o f holding elections.”

The “ right to vote”  is infinitely more comprehensive in 
its meaning, scope and operation than is the reference to 
the “manner o f holding elections for senators and repre­
sentatives,”  which was under consideration in Newberry  
v. United States.

Moreover, in that case Justices McReynolds, Holmes, 
Day and Vandevanter voted for  reversal on the constitu-



27

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 Jus­
tices Pitney, Brandeis and Clarke, likewise finding error 
in the instructions to the jury, were o f the opinion that 
the A ct itself was valid. Mr. Justice McKenna concurred 
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 o f Congress under that Amendment.”

In view o f this divergence o f opinion with respect to the 
provision o f Section 4 o f Article I o f the Constitution, 
it can scarcely be said that it has any direct bearing on 
the questions here involved arising under the Fourteenth 
and Fifteenth Amendments.

II.

The statute under consideration likewise offends 
against the Fourteenth Amendment inasmuch as it is 
a law abridging the privileges and immunities of citi­
zens of the United States, and because it denies to 
persons within its jurisdiction the equal protection 
of the laws.

This statute takes from negroes wdio are qualified as 
voters under the laws and Constitution of the State of 
Texas, and who are bona fide members o f the Democratic 
party, the right to participate in the Democratic primary 
election which is conferred on all other persons coming 
within that definition. It likewise classifies qualified 
voters who are bona• fide members o f the Democratic party 
by permitting all persons who are white to vote at Demo­
cratic primary elections, and prohibits all who are black 
from so voting.



O Q

Independently, therefore, of the Fifteenth Amendment, 
we contend that this statute is a violation of the Four­
teenth Amendment, which brings us to a consideration 
o f the scope of the latter amendment as interpreted by this 
Court. In reference to it Mr. Justice Strong said in 
Strauder v. W est Virginia, 100 U. S. 306, where a statute 
in effect singled out and denied to colored citizens the 
right and privilege of participating in the administration 
o f the law as jurors because of their color, though qualified 
in all other respects:

“ This is one o f a series of constitutional provi­
sions having a common purpose; namely, securing 
to a race recently emancipated, a race that through 
many generations had been held in slavery, all the 
civil rights that the superior race enjoy. The true 
spirit and meaning of the amendments, as we said 
in the $ laughter-IJouse Cases (16 W all. 36), cannot 
be understood without keeping in view the history 
o f the times when they were adopted, and the gen­
eral objects they plainly sought to accomplish. At 
the time when they were incorporated into the Con­
stitution, it required little knowledge o f human 
nature to anticipate that those who had long been 
regarded as an inferior and subject race would, 
when suddenly raised to the rank of citizenship, be 
looked upon with jealousy and positive dislike, and 
that State laws might be enacted or enforced to 
perpetuate the distinctions that had before existed. 
Discriminations against them had been habitual. It 
was well known that in some States laws making- 
such discriminations then existed, and others might 
well be expected. * * It was in view of these 
considerations that the Fourteenth Amendment was 
framed and adopted. I t  was designed to assure to 
the colored race the enjoym ent of all the civil rights 
that under the law are enjoyed by white persons , 
and to give to that race the protection of the general 
governm ent, in that enjoym ent, whenever it should 
be denied by the States. It not only gave citizenship



2!)

and tlie privileges o f citizenship to persons o f color, 
but it denied to any State the power to withhold 
from them the equal protection o f the laws, and 
authorized Congress to enforce its provisions by ap­
propriate legislation. To quote the language used 
by us in the Slaughter-House Cases, ‘No one can 
fail to be impressed with the one pervading purpose 
found in all the amendments, lying at the founda­
tion of each, and without which none o f them would 
have been suggested— we mean the freedom of the 
slave race, the security and firm establishment of 
that freedom, and the protection of the newly made 
freeman and citizen from the oppressions o f those 
who had formerly exercised unlimited dominion over 
them.’ ”

The opinion then discusses the terms of the Fourteenth 
Amendment and the necessity o f construing it liberally 
to carry out the purposes of the framers, and then proceeds 
to consider the equal protection clause:

“ What is this but declaring that the law in the 
States shall be the same for the black as for the 
white; that all persons, whether colored or white, 
shall stand equal before the laws o f the States, and, 
in regard to the colored race, for  whose protection 
the amendment was primarily designed, that no dis­
crimination shall be made against them by law be­
cause of their color? The words of the amendment, 
it is true, are prohibitory, but they contain a neces­
sary implication o f a positive immunity, or right, 
most valuable to the colored race— the right to ex ­
em ption from  unfriendly legislation against them  
distinctively as colored— exemption from legal dis­
criminations, implying inferiority in civil society, 
lessening tlie security of their enjoym ent o f the 
rights which others enjoy, and discriminations 
which are steps reducing them to the condition of 
a subject race.

That the W est Virginia statute respecting juries 
—the statute that controlled the selection of the



grand and petit jury in the case of the plaintiff in 
error— is such a discrimination ought not to be 
doubted. Nor would it be if the persons excluded by 
it were white inen. I f  in those States where the 
colored people constitute a m ajority of the entire 
population a law should be enacted excluding nil 
white men from jury service, thus denying to them 
the privilege of participating equally with the blacks 
in the administration of justice, we apprehend no 
one would be heard to claim that it would not be a 
denial to  white men of the equal protection o f the 
laws. Nor if a law should be passed excluding all 
naturalized Celtic Irishmen, would there be any 
doubt of its inconsistency with the spirit of the 
amendment. The very fact that colored people arc 
singled out and expressly denied by a statute all 
right to participate in the administration of the 
law, as jurors, because of their color, though they 
are citizens, and' may be in other respects fully quali­
fied, is practically a brand upon them, affixed by the 
law, an assertion of their inferiority, and a• stimu­
lant to that race prejudice which is an impediment 
to securing to individuals of the race that equal jus­
tice which the law aims to secure to all oth ers:’

To the same effect are opinions in

Virginia v. Rives, 100 U. S. 313, and
E x parte Virginia, 100 U. S. 339.

In M cPherson  v. Blacker, 146 U. S. 1, 39, it is stated:

“ The object o f the Fourteenth Amendment in re­
spect of citizenship was to preserve equality o f 
rights and to prevent discrimination as between citi­
zens, but not to radically change the whole theory 
o f the relations of the state and Federal govern­
ments to each other, and o f both governments to 
the people. In re Kem m ler, 13G U. S. 436.

The inhibition that no State shall deprive any 
person within its jurisdiction of the equal protec­
tion o f the laws was designed to prevent any per-

3 0



31

sons or class of persons from being singled out as 
a special subject for discriminating and hostile leg­
islation. Pembina Company v. Pennsylvania, 125 
U. S. 181, 188.”

In Buchanan v. W arley, 245 U. S. 76 (the Louisville 
Segregation Case), Mr. Justice Day said:

“ The effect of these Amendments was first dealt 
with by this court in The Slaughter H om e Cases, 
16 Wall. 36. The reasons for  the adoption of the 
Amendments were elaborately considered by a court 
familiar with the times in which the necessity for 
the Amendments arose arid with the circumstances 
which impelled their adoption. In that case Mr. 
Justice Miller, who spoke for the majority, pointed 
out that the colored race, having been freed from 
slavery by the Thirteenth Amendment, was raised 
to the dignity o f citizenship and equality of civil 
rights by the Fourteenth Amendment, and the 
States were prohibited from abridging the privileges 
and immunities o f such citizens, or depriving any 
person o f life, liberty, or property without due 
process o f law. W hile a principal purpose of the 
latter Amendment was to protect persons of color, 
the broad language used was deemed sufficient to 
protect all persons, white or black, against discrim­
inatory legislation by the States. This is now the 
settled law. In many o f the cases since arising the 
question o f color has not been involved and the 
cases have been decided upon alleged violations o f 
civil or property rights irrespective of the race or 
color o f the complainant. In The Slaughter House 
Cases it was recognized that the chief inducement to 
the passage of the Amendment was the desire to ex­
tend federal protection to the recently emancipated 
race from unfriendly and discriminating legislation 
by the States.”



32

See a lso :

Gibson v. Alississ-ippi, 162 U. S. 565; 
Garter v. Texas, 177 U. S. 442, 447; 
Rogers v. Alabama, 192 U. S. 226, 231

A  mere reference to Yick  W o v. Hopkins, 118 U. S. 356, 
and to the classic opinion of Mr. Justice Matthews in that 
case will suffice for the purposes of this argument, although 
in the ordinance there in question there was not the brutal 
frankness which characterizes the legislation now under 
consideration which expressly discriminates against the 
negro. In the case cited, without reference to the fact 
that it was intended to discriminate against Chinese laun- 
drymen, they were not named in the ordinance, although 
in its operation, as well as in its purpose, it was designed 
to differentiate between them because of their race and 
others who conducted laundries.

See a lso :

Truax  v. Reich, 239 U. S. 33;
Ah Iiow  v. Nunan, 5 Sawyer 552;
Re T iburdo Parrott, 1 Fed. 481;
R e A h Chong, 2 Fed. 733;
People ex rel. Farrington  v. Mensching, 187 N. Y.

18;
R oyster Gnan Co. v. Virginia, 253 U. S. 412.

Illustrations could be multiplied, but none o f them 
would be so directly applicable here as are those to which 
attention has been directed.

The vice of this legislation appears on its face. It lays 
down a general principle which confers the right to vote 
at a Democratic primary election upon all voters qualified 
under the Constitution and laws of the State o f Texas 
who are bona fide members o f the Democratic party. Then



3;

follows the discrimination, couched in the most emphatic 
terms, that in no event shall a negro be permitted to par­
ticipate in a Democratic primary election held in the State 
o f Texas. Not content with that explicit discrimination, 
there follows the provision that should the negro vote in a 
Democratic primary election his ballot shall be void, and 
then, to emphasize the humiliation sought, to be inflicted 
upon the negro, the election officials are directed by the 
statute to “ throw ou t”  such ballot and “ not count the 
same.”  It is like administering a kick to a murdered man 
as an evidence of malice and contempt.

If this is not arbitrary classification by race and color ; 
if it does not constitute a complete deprivation of the equal 
protection of the laws; if it is not an abridgment of 
privileges and immunities of a citizen of the United States, 
then it is impossible to conceive of any acts which come 
within those terms. Every white man and every white 
woman who possesses the qualifications mentioned in the 
act. however ignorant or degraded, or mentally unfit, 
whether naturalized or native, may vote without let or 
hindrance, and no negro, though possessing all the quali­
fications prescribed by the statute, however intelligent and 
patriotic and industrious and useful a citizen he may be, 
though he and his ancestors may have lived and labored 
within the State from the time of its organization, is denied 
that right.

W e are not here concerned with a political question. 
It is one that transcends all politics. It is one which 
involves the supremacy o f the Constitution both in its 
letter and in its spirit. It cannot be met with the con­
temptible platitude that is in itself an insult to the Con­
stitution, that the “ Democratic party o f the State (Texas) 
is a white man’s party.”  Nor is it an answer to say to 
a negro who believes in the doctrines o f the Democratic 
party, that because the law relating to the primaries o f



3 4

other political parties has not provided for the exclusion 
of negroes from membership therein and because such par­
ties may select their own candidates to be voted upon in 
the general election that he has no cause for complaint. 
In other words, the suggestion is that in view o f the fact 
that the Legislature of Texas has not yet prohibited 
negroes from voting in the Republican primaries, and re­
gardless of the fact that there are negroes who conscien­
tiously prefer to vote for the principles and policies of 
the Democratic party, their remedy for exclusion from 
that party is to vote for the candidates of a party to whose 
doctrines they are opposed.

Let us suppose the conditions w-ere reversed, and the 
white Democrats of Texas were excluded from the Demo: 
cratic primaries, and, by way o f consolation, were informed 
that they might vote for the candidates o f the Republican 
party o f Texas. W ith what satisfaction such a sop would 
be received!

III.

It is respectfully submitted that the judgment of the 
Court below should be reversed, and the cause re­
manded for trial upon its merits.

LOUIS M ARSH ALL, 
M OORFIELD STOREY,
A R TH U R  B. SPIN G A RN ,
F R E D  O. K N OLLEN BERG, 
R O B E R T J. CH AN NELL,

Counsel for Plaintiff-in-Error.



K.









I  A, A, C, P.
70 FIFTH AVE„ 
IE.W YORK CITV

BRIEF FOR APPELLEE.

IN THE

United States Circuit Court of Appeals
FOURTH CIRCUIT 

AT RICHMOND

No. 2974

A. C. BLILEY, W ILLIAM  BOLTZ AND W ILLIAM  
RICKER, A p p e l l a n t s ,

versus

JAMES O. WEST, A p p e l l e e .

Ap p e a l  prom  t h e  D is t r ic t  Co u r t  op t h e  U n it e d  S t a t e s  
fo r t h e  E a s t e r n  D is t r ic t  op V ir g in ia , R ic hm o n d .

A t  L a w .

JOSEPH R. POLLARD and

ALFRED E. COHEN,
Counsel f  or Appellee.





IN THE

United States Circuit Court of Appeals
FOURTH CIRCUIT 

AT RICHMOND

No. 2974

A. C. BLILEY, W ILLIAM  BOLTZ AND W ILLIAM  
RICKER, Ap p e l l a n t s ,

versus

JAMES 0. WEST, A p p e l l e e .

A p p e a l  fro m  t h e  D is t r ic t  Co u r t  of t h e  U n it e d  S t a t e s  
for t h e  E a s t e r n  D is t r ic t  of V ir g in ia , R ic hm o n d .

A t  L a w .

B r ie f  for A p p e l l e e .

BRIEF STATEM ENT OF FACTS

On April 3, 1928, a legalized primary election was 
held solely by the Democratic party under the Constitution



2

and statute laws o f Virginia for candidates to fill the offices 
o f mayor, aldermen and councilmen in Richmond, V ir­
ginia. Appellee, who is a negro, a Democrat and an elector 
duly qualified to vote for  “ all officers elective by the people,” 
was denied by the appellants, primary judges, the right to 
vote in said primary for  candidates for  said offices, the 
judges aforesaid basing their denial o f such right upon the 
primary election statutes o f Virginia, pursuant to which 
the State Democratic Committee promulgated a rule limit­
ing participation in the Democratic primary to white 
voters.

Appellee claimed the right to vote at said primary elec­
tion because “ the costs of said primary election and other 
matters pertaining thereto were borne”  (R., p. 9) by the 
public treasury o f the city of Richmond, into which treasury 
as well as into that o f the State, appellee had paid taxes, 
and which right to vote appellee claimed was granted un­
der the Constitution o f Virginia, and protected against dis­
crimination because o f his race, color, or previous condi­
tion o f servitude by the Fourteenth and Fifteenth Amend­
ments to the National Constitution and the laws o f Con­
gress, anything in the primary election laws and the rule 
o f the Democratic party aforesaid to the contrary notwith­
standing, and brought his action for  damages against the 
appellants, primary election judges, as officers acting for 
and in the name o f the State o f Virginia under statutes 
enacted by the Virginia Legislature, for the denial of such 
right, alleging, in part, in his declaration, as follow s:

“ That the successful candidates nominated in said 
Democratic primary were, in the general election held 
in June following the said primary, elected to the 
respective offices o f mayor, aldermen and councilmen 
for  the city o f Richmond, and the denial o f the right



3

of the plaintiff to vote in said primary election had the 
same effect upon the plaintiff’s right to vote as though 
he had been denied a right to vote in said general elec­
tion for said offices.”  (R., 14.)

ARGUMENT

1. The demurrer to the declaration as amended was 
properly overruled. The Fourteenth Amendment, 
Section 1, guarantees citizens o f the United States 
against the abridgment o f their privileges and im­
munities; it guarantees all persons against dep­
rivation by any state of liberty without due protec- 
ess o f law and assures them of the equal protec­
tion o f the laws.

2. The Fifteenth Amendment and the Acts of Con­
gress protect the right of the citizen to vote from 
being abridged by the state on account of race, 
color, or previous condition o f servitude.

3. The principles o f the Fourteenth and Fifteenth 
Amendments have been recognized in the Constitu­
tion o f V irginia; the right to vote without regard 
to color is a privilege of a citizen o f V irginia; it is 
recognized as the law of the land and the negro 
cannot be deprived o f it without a denial o f due 
process o f law and the equal protection of the 
law.

4. A law must be complete when it leaves the legisla­
tive halls, and there is no power in the legisla­
ture to delegate to one man, or a set o f men, the 
power to make law for others, and this the V ir­
ginia Legislature has done by authorizing parties 
to make rules for  their own government, intended



4

to disfranchise negroes, thereby violating the due 
process ciause of the Fourteenth Amendment.

5. The Virginia primary law, which law includes 
within it party rules, is an inseparable part of 
the election machinery; the primary election is an 
election, and the general election is an adjunct 
only to the primary election.

6. The primary election judges when serving at the 
polls are officers of the State, exercising the powers 
of the State of Virginia, and not those derived 
from  a political party.

7. It must be conceded that the Legislature cannot 
by its direct enactment exclude negroes from  vot­
ing; that the Virginia Constitution provides for 
suffrage for “ all officers elective by the people” 
and that a primary election held under the Con­
stitution and laws, is an election by the people, 
especially when that election is determinative of 
the final result in the general election.

8. The contentions o f the appellants.
9. The plea o f res adjudicata was properly overruled.

F irst: The demurrer to the declaration as amended 
was properly overruled. The Fourteenth Amendment, Sec­
tion 1, guarantees citizens of the United States against the 
abridgment of their privileges and immunities; it guaran­
tees all persons against deprivation by any state of liberty 
without due process o f law and assures them of the equal 
protection of the laws.

“ Sec. 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens o f the United States and o f the State
wherein they reside. No State shall make or enforce



5

any law which shall abridge the privileges or im­
munities 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 jurisdiction the equal protection of the 
laws.”

X IV  AM ENDM ENT TO FEDERAL CONSTITUTION

“ The necessary effect and operation of a statute 
may be considered in determining its validity under 
the Federal Constitution.”

Bailey v. Alabama, 219 U. S. 219.

The Code o f Virginia, 1924, Sec. 222 provides for the 
election o f representatives in Congress and members o f the 
State Legislature in the primary, as follows:

“ This chapter” (chapter on primary elections) 
“ shall apply to the nomination o f candidates fo r  such 
offices as shall be nominated by a direct primary and 
to no other nominations. The right to provide that a 
party nomination shall be made by a direct primary or 
some other method shall be determined as follow s: For 
a member o f the Senate in the Congress of the United 
States, or for any State office, by the duly constituted 
authorities of any political party for the State at large; 
for  any district office or member of the House of 
Representatives of the United States, or for State 
senator, member o f the House of Delegates, or for any 
city, town, or county office, by the duly constituted 
authorities o f any political party for the district, 
county, city, town, or other political subdivision o f the



6

State in which such office is to be filled. All nomina­
tions made by direct primary shall be made in ac­
cordance with the provisions of this chapter. * *”

The right to vote for representatives in Congress, the 
executive and judicial officers of a State, or members of the 
Legislature thereof is protected from  abridgment by Sec. 
2 o f the Fourteenth Amendment to the National Constitu­
tion.

The right to vote for  representatives in Congress 
is not derived merely from  the Constitution and laws 
o f the State in which they are chosen, but has its 
foundation in the Constitution and laws o f the United 
States, and for deprivation of such right an action for 
damages is maintainable.

Wiley v. Sinkler, 179 U. S. 58-62-64.

Under the 14th Amendment a State Legislature may 
classify political subdivisions of the State with reference 
to population for the purpose of registration of voters, be­
cause the right to vote is primarily derived from  the State 
and the elective franchise is one o f the fundamental priv­
ileges and immunities of the citizen as citizens o f the State 
and o f the United States (Mason V. Missouri, 179 U. S. 
328) but the Legislature directly or indirectly cannot clas­
sify citizens as to the elective franchise upon the basis of 
color, race or previous condition o f servitude, without run­
ning counter to the Fourteenth Amendment. ( Buchanan
V. Warley, 245 U. S. 60.)

“ That amendment”  (14th Amendment) “ while it 
applies to all, was passed as we know, with special in-



7

tent to protect the blacks from  discrimination against 
them. Slaughter House Cases, 16 Wall. 36; Strauder 
v. West Virginia, 100 U. S. 303. That amendment ‘not 
only gave citizenship and the privileges of citizenship 
to persons of color, but it denied to any State the 
power to withhold from  them the equal protection of 
the laws * * *. What is this but declaring that
the law in the States shall be the same for the black 
as for  the white; that all persons whether colored or 
white, shall stand equal before the laws of the States, 
and, in regard to the colored race, for whose protection 
the amendment was primarily designed, that no dis­
crimination shall be made against them by law be­
cause of their color.’ ”

“ I f the defendant’s conduct was a wrong to the 
plaintiff, the same reason that allows a recovery for 
denying the plaintiff a vote at a final election, allow it 
for  denying a vote at a primary election that may 
determine the final result.”

Nixon v. Herndon, 273 U. S. 536.

Second: The Fifteenth Amendment and the Acts of
Congress 'protect the right o f the citizen to vote from  being 
abridged by the State on account of race, color, or previous 
condition of servitude.

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

“ All citizens of the United States who are other­
wise qualified by law to vote at any election by the



8

people in any State, territory, district, county, city, 
parish, township, school district, municipality, or other 
territorial subdivision, shall be entitled and allowed to 
vote at all such elections, without discrimination of 
race, color, or previous condition of servitude, any con­
stitution, law, custom, usage, or regulation of any 
State or territory, or by or under its authority, to the 
contrary notwithstanding.”  (Italics added.)

Title 8, Section 31, U. S. C. (R., S. sec. 2004).

Congress has the right by law to enforce the XV 
Amendment by preventing discrimination on account of 
race, color or previous condition o f servitude.

Williams v. Mississippi, 170 U. S. 213.

And a State law which affects the exercise o f the 
right to vote is a question arising under the Federal 
Constitution.

Swafford V. Templeton, 185 U. S. 487.

“ Since the Fifteenth Amendment the whole con­
trol over suffrage and the power to regulate its exer­
cise, is still left with and retained by the several States, 
with the single restriction that they must not deny or 
abridge it on account of race, color or previous condi­
tion of servitude.”

United States V. Harris, 106 U. S. 636-644; James V. 
Bowman, 190 U. S. 127.

“ While the Fifteenth Amendment does not con­
fer the right o f suffrage on any class, it does prohibit



9

the States from  depriving any person of the right of 
suffrage whether Federal, State, or municipal. Elec­
tion officers who refuse to allow persons to exercise 
their suffrage, because of a State law disqualifying 
them according to a standard made unconstitutional 
by the Fifteenth Amendment are liable for  damages in 
a civil action under section 1979, Rev. Statutes.”

M yers v. Anderson, 238 U. S. 369-377-379.

The Fifteenth Amendment guarantees to the negro the 
right to vote. This is more than a privilege; it is an actual 
right, o f which he cannot be deprived without due process 
of law. He is entitled in the enjoyment of that right to 
have the equal protection of the laws.

Third: The principles o f the Fourteenth and F if­
teenth Amendments have been recognized in the Constitu­
tion of Virginia. The right to vote without regard to color 
is a privilege of a citizen of Virginia; it is recognized as the 
law of the land and the negro cannot be deprived of it with­
out a denial of due process of law and the equal protection  
of the law.

Article II, section 18 o f the Virginia Constitution pro­
vides for suffrage for  “ all officers elective by the people,” 
as fo llow s:

“ Every male citizen o f the United States, twenty- 
one years o f age, who has been a resident of the State 
two years, o f the county, city or town, one year, and of 
the precinct in which he offers to vote, thirty days 
next preceding the election in which he offers to vote, 
has been registered and has paid his State poll taxes, 
as hereafter required, shall be entitled to vote fo r



10

members o f the General Assembly and all officers 
elective by the people * *

Pursuant to the Nineteenth Amendment to the Federal 
Constitution, Article II, sec. 18 of the Virginia Constitu­
tion was amended so as to confer the right to vote on 
women. In the amended Constitution residence in State 
has been reduced to one year and in political subdivisions of 
State to six months to entitle one to vote.

1928 Supplement to Virginia Code, pp. 380, 381.

The Legislature cannot directly, or indirectly, prescribe 
any qualifications for suffrage, different from, or additional 
to those found in the Constitution, by its own enactment, 
or through a political party, and give it the force of law.

Under the Constitution o f Virginia of 1869 which pro­
vided that:

“ Every male citizen o f the United States, twenty- 
one years old, who shall have been a resident o f this 
State twelve months, and o f the county, city or town 
in which he shall offer to vote three months, shall be 
entitled to vote for members o f the General Assembly 
and all officers elected by the people * •

The Supreme Court of Appeals o f Virginia held in 
construing that constitutional provision that:

“ The right of suffrage is derived from  the Con­
stitution o f the State, and to it we must look to ascer­
tain who may, or who may not vote. The Legislature 
cannot directly, or indirectly, prescribe any qualifica­
tions additional to those found in the Constitution 
* * * »

Pearson v. Board o f Supervisors, 91 Va. 322.



11

Section 36, Virginia Constitution reads:

“ The General Assembly shall enact such laws as 
are necessary and proper for the purpose of securing 
the regularity and purity of general, local and primary 
elections, and preventing and punishing any corrupt 
practices in connection therewith; and shall have 
power in addition to other penalties and punishments 
now or hereafter prescribed by law for such offenses, 
to provide that persons convicted o f them shall there­
after be disqualified from  voting or holding office.”

“ This section means nothing more than that the 
Legislature shall pass laws necessary for  securing 
regularity and purity in primary as well as local and 
general elections. What shall these laws be? Only 
punitive laws prescribing penalties and punishment 
for  irregularity and impurity in the conduct o f those 
conducting the primary, local or general elections, in­
cluding the penalty of disfranchisement.”

“ Nothing in the Constitution authorizes the Legis­
lature to delegate to a party committee the making of 
new qualifications for office, or to make rules and reg­
ulations which are to have the force o f law, or to fix 
a salary, or the fees o f a mere party secretary, and to 
appropriate money from  the party ti'easury to pay 
them. This law” (the earlier primary acts of Virginia 
Legislature) “ like those, surrenders to a political party 
the power o f legislation * * *. It gives to the plan 
of party organization and its rules and regulations the 
force of law * *

Vol. X I, Virginia Laio Register, 803-804-805.



12

At the time the last quoted language was written, 
primaries in Virginia were held at the expense of the party, 
and not at the expense of the public treasury. Six years 
afterwards, in 1912, the earlier primary acts were amended 
and a legalized primary law enacted to be held by either 
or both o f the two major political parties at their election, 
at public expense, save for small contributions assessed in 
the statute against candidates, if opposed in the primary, 
and if unopposed, not one cent. The Act of 1912 provided 
in section 4 for  the appointment of primary judges by 
“ the county or city committees of the party holding the 
primary.”

Acts, Va. Assembly, 1912, p. 611, et seq.

By later amendments the judges are appointive by the 
electoral boards.

The primary act o f 1912 was amended by an act in 
1914, which became effective January 1, 1915, by which the 
fees to be paid by candidates if opposed in the primary 
were further reduced, and which latter act is practically 
the same as that found in the revised Code of 1919, and the 
Code of Virginia, 1924, chapter 15, with amendments 
reducing fees of candidates still further, so that now such 
fees are negligible, and if a candidate is not opposed, he 
has no fees to pay.

Acts of Virginia Assembly, 1914, p. 513. See also Pol­
lard’s Supplement, 1916, pp. 872 to 886, inclusive, the lat­
ter pages setting forth  the primary rules of the Democratic 
party of Feb. 13, 1913; Code of Virginia, 1924, section 249, 
the latter section providing for  entrance fees if candidate 
is opposed.



13

Chapter 15, section 227, Code Va. 1924, delegates the 
power o f making rules and regulations to a party com­
mittee, as follow s:

“ Section 227. Right and power of parties.—  
Each party shall have the power to make its own rules 
and regulations, call conventions, to proclaim a plat­
form or ratify a nomination, or for any other purpose, 
and perform all functions inherent in such organiza­
tion * * *. Nothing in this chapter shall be con­
strued to limit or circumscribe the rules and regula­
tions for  its own government and determine its own 
methods of making nominations for public office: but 
no party which has adopted the plan o f making 
nominations for office by primary, shall have the power 
to nominate by a convention any candidate to be voted 
for  at any particular primary. A primary when held 
shall be conducted under the provisions of this chap­
t e r "  (Italics supplied.)

Chapter 15, section 228, Code Va. 1924 then provides 
who may vote at the primary as follows:

“ Section 228. Who may vote.— All persons quali­
fied to vote at the election for  which the primary is 
held, and not disqualified by reasons of other require­
ments in the law of the party to which he belongs, 
may vote at the prim ary; except that: No person
shall vote for the candidates o f more than one party 
• * • »

Pursuant to the above statutory provision, sections 
227-228, Code Va., 1919, on June 11, 1924, the general com­
mittee o f the Democratic party adopted as a part of their 
plan the following rule:



14

“ Who may vote.— All white persons qualified to 
vote at the election for which the primary is held, may 
vote at the primary * *

And under the provisions of chapter 15, Code of V ir­
ginia 1924, and the said rule of the Democratic party the 
primary election was held on April 3, 1928, in which the 
appellee was denied the right to vote by the appellants who 
were election judges at his precinct.

“ The sole function o f the Legislature, with respect 
to the exercise of the right of suffrage, is to provide 
the method of voting, and to guard against improper, 
illegal or fraudulent voting * * "But a regula­
tion which virtually establishes a test of qualification 
of the voter, additional to those prescribed in the Con­
stitution, is unconstitutional and therefore void.”

Keith, P., Pearson V. Board of Supervisors, 91 Va. 322. 
In this case the party makes the rule and the Legislature^ 
gives to it the force of law.

In Johnson v. Grand Forks County, 16 N. D. 363, it 
was held:

“ Section 121 of the Constitution prescribes the 
qualification of voters at ‘any election.’ It is true that 
at the time of the adoption of the Constitution, a 
primary election was unknown * * *. When the
Constitution says ‘any election’ in prescribing the 
qualification of voters * * * (It) “ includes a
primary election.”

Fourth: A law must be complete when it leaves the
legislative halls, and there is no power in the Legislature



15

to delegate to one man or a set of men, the power to make 
law for  others. This the Legislature has done in authoriz­
ing parties to make rules, thereby violating the due process 
clause of the Fourteenth Amendment.

The vote in the primary, especially where there is but 
one effective party, is the equivalent of an election; it is a 
sacred right guaranteed against abridgment not only by 
the Federal amendments, but in every State constitution. 
A  party committee under such power as is delegated to it 
in sections 227-228 o f the Code of Virginia 1924, may as 
well set at naught by party rule the X IX  Amendment to the 
National Constitution giving women the right to vote, as 
the Fourteenth Amendment, by disfranchising Democratic 
negroes, by withholding from  them participation in a party 
primary election. The Legislature cannot disfranchise 
negroes directly, nor can a party rule do it indirectly.

“ Nor can the Legislature in attempting to pre­
vent fraud, disfranchise voters without their own 
fault or negligence. The power of the Legislature in 
such cases is limited to laws regulating the enjoy­
ment o f the right by facilitating its lawful exercise. 
The right to vote must not be impaired by regula­
tion. It must be regulation and not destruction.”  
(Italics ours.)

Attorney General V. Detroit, 7 L. R. A., 99-103.

In a primary election the Legislature cannot delegate 
its powers to a party committee to determine whether can­
didates shall be nominated by a majority or plurality vote.

“ The Legislature must decide what the law shall 
be and the power delegated to that department can-



16

not be again delegated to any other body or authority 
• * * »

People ex rel. Beckon v. Election Com’rs, 221 111. 9-19-
20.

There can be no substantial distinction between the 
constitutional guarantees of life, liberty and property, and 
the right to vote guaranteed to the individual, by which lat­
ter as a member o f society he is enabled to uphold the form ­
er, and without which he is left to the mercy of others. But 
citizens entitled to vote for “ all officers elective by the 
people”  by Constitution o f Virginia require the consent of 
the executive party committees under the Virginia primary 
law, before they can exercise that franchise in a primary.

“ The conditions requiring consent o f property 
owners was repugnant to the due process clause o f the 
Fourteenth Amendment. There is no provision for 
review * * * their failure to give consent is final. 
They are not bound by any official duty, but free to 
withhold consent for selfish reasons, or arbitrarily * 
* *. The delegation so attempted is repugnant to the 
due process clause of the Fourteenth Amendment.”

Washington ex rel. Seattle Title and Trust Co., Trustee, 
etc. v. Roberge, Superintendent of Building, 278 U. S. 116- 
121- 122.

Eubank V. City of Richmond, 226 U. S. 137-143.

F ifth : The Virginia primary law which includes party 
rules as a part of the law, is an inseparable part o f the elec­
tion machinery; the primary election is an election, and the 
general election is an adjunct only to the primary election.



17

“ The Federal Supreme Court when dealing with 
the constitutionality of State statutes challenged under 
the United States Constitution accepts the meaning of 
such statutes as construed by the highest court of the 
State.”

Farncomb v. Denver, 252 U. S. 7.

The construction placed by the highest court o f the 
State on its own statutes is authoritative in the Supreme 
Court of the United States.

Wick v. Chelan Electric Co., Adv. Op. 1929-30, p. 90.

Keith, President of the Supreme Court o f Appeals 
of Virginia, who delivered the opinion of the court in Pear­
son v. Board of Supervisors, supra, also delivered the 
opinion of the court in the case of Commonwealth v. Wilcox, 
111 Va. 849-859.

Ibid., page 859, he said in part:

“ In other words, the primary when adopted by a 
political party becomes an inseparable part of the 
election machinery, and if a candidate to be voted 
for at the general election is to be selected at a 
primary, it is impossible to secure the regularity and 
purity o f the general election without in the first 
place guarding against irregularity and fraud at the 
primary election. The primary election constitutes a 
necessary part, and fulfills an essential function in the 
conduct of elections— elections which shall faithfully 
register the unbought will o f the electors * *
(Italics supplied.)



18

Vitality was given to the foregoing construction o f the 
Virginia primary statute by its Supreme Court of Appeals 
in the Acts of the General Assembly in 1914 in language 
follow ing:

“ All provisions and requirements of the statutes 
of this State in relation to holding of elections, the sale 
o f intoxicating liquors on election day, of counting 
ballots, of making and certifying returns and all kin­
dred subjects shall apply to all primaries insofar as 
they are consistent with this act, the intent o f this act 
being to place the primary under the protection and 
regulation of the laws o f this State governing elections 
* * (Italics added.)

Acts of the General Assembly, 1914, pp. 513-515; Pol­
lard’s, 1916, p. 873. Cf. Sec. 224, Code Va., 1924.

The words italicised above in the Act o f 1914 were left 
out of section 224, Code Va. 1919. (Same section, Code 
1924.)

“ In construing the Code the rule of construction is 
that the old law was not intended to be altered unless 
such intention plainly appears.”

Parr more V. Taylor, 11 Gratt. 220.

Not only has there not been manifested an intention 
to change the statute, but such intention o f the Legislature 
has been affirmed in a later case.

“ So far as we have been able to ascertain there is 
no provision in our law, as exists in some of the States 
in the Union, in conducting a primary, as distinguished 
from  an election on any question, other than the one



19

adverted to, to-w it: nomination of candidates. There­
fore it was not necessary to allege in the indictment 
that the primary was held according to law.”  (Italics 
added.)

Zippas v. Commonwealth, 141 Va. 497.

In Newberry  v. United States, 256 U. S. 232-250, Mr. 
Justice McReynolds speaking for  the majority o f the court 
in holding Senator Newberry not guilty of violating the 
“ Corrupt Practices Act”  of Congress said :

“ General provisions touching elections in constitu­
tions and statutes are not necessarily applicable to 
primaries— the two things are radically different.”

Other members of that august Tribunal took an op­
posite view and wrote dissenting opinions. However, New­
berry v. United States, supra, is not really pertinent here. 
The real question there was whether Congress may legislate 
with regard to nomination for senator or congressman. 
Such right would have to rest upon Article I, Section 4 of 
the Constitution of the United States, which gives Congress 
the power to make regulations for “ holding elections for 
senators and representatives.”  Under this provision it was 
held that Congress may not make regulations for  nomina­
tion o f senators and representatives.

Since then the case o f Newberry  v. United States, 
supra, has been distinguished away, and it is held that the 
holding of party primaries is not purely a state affair, as 
Congress has power over the conduct of its officers and em­
ployees, so as to make contributions under pressure, within 
the corrupt practices act in a state primary election.

United States V. Wurzbaeh, Ad. Op., 1929-30, 322-323.



20

Whatever may be the law in other states, section 224, 
Code of Virginia, 1924, says:

“ All provisions and requirements of the statutes 
o f this State in relation to the holding of elections * 
* * shall apply to primaries insofar as they are not
inconsistent with this chapter * * *. All the pro­
visions of this Code insofar as they relate to crimes 
against the electoral franchise, are hereby made ap­
plicable to primaries, except when inconsistent with 
this chapter.”

See sections 82 and 82-a, Code Va., 1924, as to qualifica­
tion of electorate in general elections.

Independent o f such express statutory provisions the 
better view is that:

“ The primaries are not the private affair of politi­
cal parties, but state regulated elections, part of the 
election machinery of the state.”

State v. Junkin, 85 Neb. 1; State v. Michel, 121 La. 
374; State V. Hirsh, 125 Ind. 207; Commonwealth v. Wil­
cox, supra; Zippas V. Commonwealth, supra; Nixon  v. Hern­
don, supra.

Not only do the statutes and the decisions in Virginia 
make of the twain one, but a casual survey demonstrates 
that in the operation of the primary election is comprised 
the personnel of all three branches o f the government—  
Executive, Legislative and Judicial departments, thus put-



21

ting the election into the hands of the party in power. They 
are required to act, not in their private capacities, but in 
an official capacity in the primary election as well as in the 
general election which follows the primary, by virtue of 
section 224, Code of Va. 1924, and the statutory provisions 
governing general elections, so as aforesaid combined and 
intertwined.

In primary elections the Governor is a member of the 
State Board o f Canvassers (Code Va. 1924, sec. 188), Secre­
tary o f State convenes State Board o f Canvassers. (Code 
Va. 1924, sec. 224.) The Legislature delegates to political 
parties, or the party who makes use of the primary, the 
power to prescribe the qualification of the electorate in the 
primary (Code Va. 1924, secs. 227-228). The judges o f the 
circuit and corporation courts appoint three members to 
constitute the electoral board in their county, or city. (Code 
Va. 1924, sec. 84.) The Constitution provides for  the above 
officers, and for  the electoral board, the latter in section 31, 
Virginia Constitution.

The electoral boards appoint primary and general elec­
tion judges at the polls. (Const. Va., sec. 31; Code Va., 
1924, sec. 224). The courts are given judicial powers over 
primary affairs, so as to enforce the provisions o f the chap­
ter on primary elections. (Code Va. 1924, sec. 224.)

The primary election judges are not mere party judges 
in the sense that they are under the control of, and amend­
able to party rules and discipline. They owe their office to 
the provisions of the Constitution (sec. 36) requiring the 
Legislature to enact laws necessary and proper for  the 
purpose o f securing the regularity and purity o f primary 
elections. Either, or both major political parties, before 
holding a primary, must make application to the electoral 
board for  the apopintment of judges at the polls, but the 
judges in the conduct o f the election at the polls, are amen-



22

able alone to the Constitution and laws of the State, in 
whose employ they are, and from whom they receive their 
per diem. They are required to possess the qualification 
o f judges in the general election and take an oath to faith­
fully perform their duties under the law. (Const, sec. 31; 
Code Va. 1924, sec. 149.)

In addition to this, primary election judges exercise 
by virtue of express delegation sovereign powers; under 
their own hand they are authorized to commit to jail for 
twenty-four hours, anyone disturbing the primary election 
at or near the polls (Code Va. sec. 196) ; they may appoint 
a constable to keep order at the polls “ with all the powers 
of a duly elected constable” ; (Code Va. 1924, sec. 250) and 
have power to appoint other primary judges in the event 
those appointed by the electoral boards fail to attend at the 
polls promptly. (Code Va. 1924, sec. 224.)

Sixth: The primary election judges when serving at
the polls are officers of the State exercising the powers of 
the State of Virginia.

The expenses of holding primary elections are paid by 
the respective counties and cities of the State from  funds 
derived in the main from  taxation.

Code Va. 1924, secs. 170-245.

The primary election judges receive their compensa­
tion from  said funds, not from  the party treasury. The 
Legislature has legalized the primary election, provided for 
the appointment of judges therefor, and invested them 
with sovereign powers in the foregoing particulars as well 
as that o f challenging persons intending to vote in the 
primary and judging of their qualifications to vote. Their



2 3

office is public, acting for and in the name of the State un­
der its laws, and they cannot be otherwise regarded when 
serving at the polls, than as exercising a governmental 
function as distinguished from  a private function. While 
they act within the Constitution, there is no liability upon 
them for their acts, but when they act under a rule o f the 
Democratic party in excluding a negro from  voting, they 
act outside the pale of the law for which they are liable as 
held in Nixon  v. Herndon, supra.

“ Whoever by virtue of public position under State 
government, deprives another o f life, liberty or prop­
erty, without due process o f law, or denies or takes 
away the equal protection o f the laws, violates the 
constitutional inhibition, and as he acts in the name 
of the State, and is clothed with the State’s power, his 
act is that of the State.”

E x parte Virginia, 100 U. S. 339-347.

With whose power are the primary judges clothed? 
Certainly not that o f the party. They act for the State in 
securing the regularity of the primary laws and the vote. 
They are paid from  funds derived from  the public by taxa­
tion. They are amenable to the State penal laws for their 
acts, as primary judges.

Speaking of persons whose duty was o f a public or 
general nature, Staples, J., said:

“ they are State officers, whether the Legislature 
makes the appointment, or delegates its authority to 
the municipality. It looks to the preservation o f order 
in the State, at the elections and all public places * * 

(Italics added.)



24

The power of the mayor to remove a policeman was 
then denied as he was held a State officer.

Burch v. Hardwick, 30 Gratt. 24-28.

Though the judges act for one day, they are as much of 
an officer of the State as if they were appointed to act for 
a longer period.

Seventh: It must be conceded that the Legislature
cannot by its direct enactment exclude negroes from  vot­
ing; that the Virginia Constitution provides for suffrage 
for  “ all officers elective by the people”  and that a primary 
election is, under the Constitution and laws, an election by 
the people, especially when the election is determinative of 
the final result in the general election.

The purpose of the Legislature in delegating power 
to political parties to make their own rules and regulations 
was to shirk the responsibility of passing a law which would 
run counter to the Federal Constitution, and to pass that 
responsibility on to political parties. But the difficulty is, 
that the party rule is a part o f the statute law, whether 
made by the one or the other.

In the case o f Willis v. Kalmback, 109 Va. 475, et seq., 
that difficulty was recognized by Keith, President, in de­
livering the opinion of the court:

“ It is true that the convention o f 1901 was as­
sembled in order to purge the electorate of ignorant 
and undesirable voters. When the convention met the 
chief difficulty encountered in the performance o f their 
duty was found in the limitations upon their power



25

contained in the Fourteenth and Fifteenth Amend­
ments to the Constitution of the United States.” 
(Italics supplied.)

He went on to say, Ibidem, p. 481:

“ We think it plain if the question before us were 
to be determined by reference to the second article of 
the Constitution”  (Va. Const, sec. 18) “ there could be 
no doubt that the Legislature, following the precedents 
that had been established from the foundation of our 
government, would have had the right to prescribe the 
qualification of voters at all elections, except those for 
members o f the General and officers elective by the 
people * * (Italics supplied.)

That difficulty has not been solved by delegating power, 
or recognizing the power o f parties to make rules.

The mayor, aldermen and councilmen were in the in­
stant case officers elective by the people in the city of 
Richmond.

Const. Va., secs. 117-120; Charter of Richmond, Ch. 
II, sec. 8 ; Ch. I ll , sec. 14.

The State convention o f the Democratic party at Nor­
folk, Va., on June 11, 1924, adopted rules and regulations 
under and by virtue of sections 227-228, Code of Virginia, 
1919, and which rules and regulations when a primary is 
held are an inseparable part o f the primary election laws, 
and the latter laws as held in Commonwealth v. Wilcox, 
supra, and Zippas V. Commonwealth, supra, are an insep­
arable part of the election laws, and all are component parts 
of the election machinery o f the State.



26

“ Primary plan of the Democratic party adopted 
June 11, 1924.

“ Primary elections held under this plan must be 
governed by the act of the General Assembly ap­
proved March 14, 1912, entitled an act to establish 
and regulate the holding of primary elections, and all 
amendments thereto. Wherever the masculine pro­
noun is used in this plan, it shall be construed as if 
both masculine and feminine pronoun had been used.

“ Who may vote.
“ All white persons qualified to vote at the election 

for which the primary is held may vote at the primary 
* * * ”

Virginia election laws in effect June 17, 1928, issued 
by M. A. Hutchinson, Secretary of the Commonwealth, pp. 
96-98.

The Virginia legalized primary is not available to any 
and every party or political organization, but only to

“ a political party or organization, which, at the presi­
dential election next preceding the primary, polled at
least one-fourth of the total vote cast at such election.”

Code Vo., 1924, sec. 221.

It may have been assumed that by adding the total vote 
and then dividing it by one-fourth, the use of the primary 
might be limited to the dominant party at times.

The statute limits the use o f the primary to two major 
political parties who can meet the above numerical require­
ment, the cost of which is paid out o f the funds levied by 
taxation fo r  general purposes in the cities and counties and



27

at the same time makes such parties, when making use 
of the primary, statutory parties.

“ Statutes providing for  primary elections are 
based on a recognition of political parties as govern­
mental agencies * *

Cunningham v. Cokley, 79 W. Va. 63.

Article II, Virginia Constitution, provides for suffrage 
for  “ all officers elective by the people.”  In Article I, section 
6 o f the Virginia Constitution, it is provided as follows:

“ 6. Suffrage; taxation; private property fo r  pub­
lic uses; consent of governed.— That all elections ought 
to be free ; that all men, having sufficient evidence of 
permanent common interest with, and attachment to, 
the community, have the right o f suffrage, and can­
not be taxed, or deprived of, or damaged in, their prop­
erty for  public uses, without their consent, or that of 
their representatives duly elected, or bound by any law 
to which they have not in like manner, assented for 
the public good.”

The mayor, aldermen and councilmen are officers elec­
tive by the people. The appellee, though a negro, paid in 
part the costs of holding said primary from  taxes levied 
upon him, and yet was denied the right to vote for  such 
officers, and thereby denied the right o f choice as to such 
officers.

Eighth: The contentions of the appellants.

The appellants in their brief page 12, urge that the 
action o f the Democratic party in excluding negroes from



2 8

participation in Democratic primaries is not State action, 
yet ask this honorable court to disregard section 245 of the 
Code o f Virginia, which is a part o f the primary act pro­
viding for  payment of the expenses of the election, and a 
part of the State’s action, which they conceive to be void 
under the Constitution o f Virginia. (Brief, page 41.)

The appellants rely upon the cases of Grigsby V. Harris, 
27 F. 2d. 942, and Nixon  V. Condon, 34 F. 2d. 469, but the 
Texas Legislature after the decision o f Nixon  V. Herndon, 
supra, repealed its statute limiting the participation in a 
Democratic primary to white voters, and in June, 1927, 
passed Article 3107 which reads in part as follows:

“ Every political party in this State through the 
executive committee shall have power to prescribe the 
qualification of its own members and shall in its own 
way determine who shall be qualified to vote or other­
wise participate in such political party * * *•”

By this latter provision, as well as by the statutes in 
Texas, the primary election is a private affair of the 
Democratic party, and all of the costs o f holding it are paid 
by the candidates, in other words, by the party holding the 
election. Such was the state of the statutes in Texas under 
which the above last cited cases were decided.

The court in Nixon  v. Condon, supra, distinguishing 
the instant case (W est v. Bliley, 33 F. 2d., 177), among 
other things remarked that in Virginia the expenses of the 
primary election are paid by taxing through county and 
city subdivisions o f the State. And speaking of the primary 
judges pointed out that:

“ Such are in the employ o f the State and not in 
the employ of the party, though selected by it * * *.



29

In the State of Illinois, Virginia and perhaps in other 
States in which laws exist governing the holding of 
primary elections, the expenses of holding and con­
ducting such primary elections in such States are paid 
out of funds of the State, which is not the case in 
Texas.”

Nixon  v. Condon, supra, pp. 471-472.

But in the decision last quoted, the Texas court failed 
to observe other important differences between the statutes 
o f Texas and Virginia. In Virginia, the purpose o f the 
Legislature was to place the primary under the protection 
and regulation of the laws of the State governing elections, 
and the courts of last resort have impressed that meaning 
upon the statutes, holding that the primary and general 
election were component parts of one and the same elec­
tion. In Virginia the statute makes the primary judges o f­
ficers o f the State and as such invests them with certain 
sovereign powers which they exercise for and in the name 
o f the State, and not for and in the name o f the Democratic 
party, or other party holding a primary election; their 
action is State action— not party action. Delegating to 
parties as statutory parties, the right to make rules was 
contemplated to disfranchise “ ignorant and undesirable 
voters,” viz: negroes.

“ * * * primary elections in Virginia in their
nature have such a relation to and bearing upon gen­
eral elections, that the omission to bring them within 
the law would have left the plan devised by the Legis­
lature for  securing the regularity and purity o f elec­
tions wholly abortive and ineffectual.”

Commonwealth v. Wilcox, supra, p. 860.



3 0

The primary election is just as sacred as a general 
election, and the constitutional guarantee of the exer­
cise o f the right o f suffrage applies to primary elec­
tions.

Dove v. Oglesby, 114 Okla., 244 (1926).

In their third contention, appellants ask the court to 
disregard section 245 of the Code o f Virginia, because the 
section is “ invalid and void”  under the Virginia constitu­
tional provisions. Their appeal should be directed to the 
Virginia Legislature, o**4e-the courts as to that.

I f  the application here were for  an injunction to pre­
vent the treasurers o f counties and cities from  paying the 
costs of the Democratic primary election, we might better 
understand the appellants’ position. That contention is, 
in the first place, wholly dehors the record here.

Appellee’s declaration alleged, and appellants’ demur­
rer admitted, the validity of that section.

“ Twelfth: That the costs of said primary elec­
tion and other matters pertaining thereto were borne 
pursuant to and in accordance with * * section
245, section 170 as set forth in the exhibits with the 
declaration. (R., 9-12.)

In the second place, may we ask what difference does 
it make, insofar as the Federal question is involved, whether 
the primary judges acted because paid to act under a valid, 
or invalid statute of the Virginia Legislature? Was it not 
State action? Were not the judges provided with powers 
o f the State as its officers in one and the same primary act? 
We answer in the affirmative.



31

The only facts to which the law may be applied are 
those set forth in the pleadings, which show that the pri­
mary judges were not mere private party judges; that the 
primary was a legalized one; that the appellants accepted 
their appointment under the provisions o f the primary 
statutes, and acted thereunder as officers of, and clothed 
with the powers of a sovereign nature of the State o f V ir­
ginia in the many particulars hereinbefore set forth ; that 
they accepted the benefit, along with other members of their 
party, that flowed naturally from  their action as State o f­
ficers in denying the appellee a vote in the primary because 
o f his color. Certainly the appellants should not be now 
heard to say in this civil proceeding, that they ought not 
to be mulct for the profit which they and their party derived 
from  their own wrong. The appellee felt that the wrong 
he suffered was more the wrong of the State through its 
primary laws, than that o f the appellants and, therefore, 
asked for but nominal damages against the appellants.

The appellee sought redress for  such unlawful dis­
crimination against him, not because o f the rule of the 
Democratic party alone in denying him a right to vote in 
the primary, but proximately because appellants as such 
judges under the statutes in carrying out such rule, as 
officers of, and in the employ of the State, withheld from 
him the equal protection of the laws and abridged thereby 
his constitutional privilege to vote in the primary, which 
right is protected from  abridgment by the said Federal con­
stitutional amendments.

The sole question presented by the record here is a 
Federal one, and the determination of which does not rest 
upon what other courts, State, or Federal, in Texas or else­
where, consider to be the meaning o f their several primary 
statutes in relation to the Federal question, but rests solely 
upon the true meaning o f the Virginia Constitution and its



3 2

primary statutes as understood and applied by its court of 
last resort, as well as upon the true intention of the Legis­
lature expressed in its several Legislative enactments estab­
lishing a legalized primary. The action complained of by 
the appellants was viewed as such Federal question in the 
able opinion o f the learned judge in the court below over­
ruling the demurrer of the appellants to the plaintiff’s 
declaration, and it was held that appellee had been denied 
such right as is protected from  abridgment by State action 
through its primary judges as officers of the State.

Ninth: The plea o f res adjudicata was properly re­
jected.

The plea should have been filed at the rules, or within 
the time extended to file pleadings by the order o f the court 
below (R., pp. 5-30-31). The appellants’ time to plead hav­
ing been on their application twice extended, on the day of 
the trial by the jury of the issue of fact raised by their 
plea o f “ not guilty”  and after it had been filed, appellants 
tendered for filing for the first time, said plea of res adjudi­
cata o f certain proceedings by appellee against them by 
mandamus in a State court, and on motion in writing by 
appellee, the court below rejected the same (R., 22), but 
afterwards permitted it to be filed and again rejected the 
same (R., 30-31).

It is unnecessary to cite authority for the position that 
the rules of the court below, and especially its last order 
extending the time to appellants (after having twice relaxed 
its rules as to the time to plead), are as much a part o f the 
appellants’ case as the demurrer upon which they relied 
for  their defense.

The action in the court below being upon a different 
cause o f action and requiring different evidence to sustain



3 3

it, than the mandamus proceeding, the plea of res adjudicata 
was misconceived.

The mandamus proceeding in the State court was 
abortive, which fact is apparent from both the appellants’ 
second ground o f demurrer and their answer to the manda­
mus petition. The petition alleged that the primary judges 
(appellants) had been “ designated" only to act, while the 
second ground of demurrer and said answer went to show 
that although designated, they had not been as yet “ ap­
pointed”  to act as election judges, and which ground having 
been well taken by the respondents, no reply was or could 
be made to said position. This situation resulted from  the 
law which does not require the appointment of primary 
judges at any specified period of time before the election 
by the electoral boards, as it does in the case o f judges for 
the polls in the general election.

Code of Virginia, 1924, sections 224-148.

Until appointed by the electoral board, the respondents 
to the said petition were not, although designated to act 
as such by the Democratic authorities, primary judges. 
The judgment, therefore, pronounced on the first ground of 
demurrer to the petition by the State court was in reality 
a “ moot-judgment,”  because the court lacked power to 
adjudicate, as the petitioner in mandamus was without 
standing in that court, and such fact all parties as well as 
the court recognized, and should have recognized under the 
circumstances, but in order to render a subsequent manda­
mus proceeding in that court useless, the court desired to 
advance, and did advance an opinion in the form  of a judg­
ment upon the res, in the absence o f a proper reus.

Therefore, the court’s judgment vouched was not such



34

as to support a plea of res adjudicata, or estoppel by judg­
ment, in the court below.

Where the judgment of dismissal purports on its 
face to be on the merits, and such could not be the fact, 
it does not constitute a bar to a second suit.

Swanson v. Great Northern Ry. Co., 73 Minn. 103; 
Lower v. Froelich, 151 Minn. 522.

“A judgment given * * * because of want of
capacity of a party plaintiff or defendant to sue or be 
sued, establishes nothing but such defect or incapacity, 
and cannot defeat a subsequent suit in which the vice 
does not exist.”

2 Freeman on Judg. ( 5th Ed., secs. 738 to 749.)

The point actually litigated in the mandamus proceed­
ing was the issue that the respondents were not proper 
parties to the petition, as they had not been appointed to 
serve on election day at the polls, so that even if the plea 
of appellants had been estoppel by judgment, and had been 
timely filed, it would not have barred the action.

“Where it is sought to apply the estoppel of a 
judgment rendered upon one cause of action to matters 
arising in a suit upon a different cause of action, the 
inquiry must always be, as to the point or question 
actually litigated, and determined in the original ac­
tion, and not what might have been thus litigated and 
determined. Only on such matters is the judgment 
conclusive in another action.”

M yers V. International Co., 263 U. S. 63-70-71.



35

If the plea had been sustained instead of being rejected 
it could only have been sustained on grounds not going to 
the merits.

Golasborough v. Hewitt, 23 Okla. 66.

The want of proper parties is not res adjudicata; or 
the omission of an essential allegation.

St. Romes v. Levee Steam Cotton Press, 127 U. S. 614; 
Gilmer V. Morris, 30 F. 476.

“Where the evidence required to maintain the al­
legation is different, the judgment is not on the merits.”

Moon v. Edwards, 135 S. E. 302.

Under the circumstances—for want of proper parties 
defendant,—if the State court’s judgment had been against 
the respondents, it could not operate as an estoppel.

Portland Gold Min. Co. v. Stratton, 85 C. C. A. 393.

Courts will not act where they cannot adjudicate, 
or pronounce judgment, to be disregarded.

M eyers V. Chalmers, 60 Miss. 772; Shelburn v. Horn, 
45 Mich. 160.

“ Where the second action between the same 
parties is upon a different claim or demand, the judg­
ment in the prior action operates as an estoppel only 
as to those matters in issue or points controverted,



3 6

upon the determination of which the finding or verdict 
was rendered.”  (Italics added.)

Denison V. United States, 168 U. S. 241-249.

And the only justiciable point controverted or con­
trovertible, was that the respondents were not sued in their 
capacity of primary judges, as they had not been appointed 
to act as such when the application for the writ of man­
damus was heard. The State court had no power to ap­
point them and then adjudicate. Its sole power was to 
dismiss for want of proper parties defendant to the peti­
tion.

In conclusion, we respectfully submit, the judgment 
of the court below should be affirmed.

Respectfully submitted,

April 3, 1930.

JOSEPH R. POLLARD and

ALFRED E. COHEN,
Counsel fo r  Appellee.







United States Circuit Court o f Appeals
FIFTH  CIRCUIT

No. 6828

A N T O IN E  M. TR U D E A U , 

versus
A ppellant,

CH ARLES S. BARNES,
A ppellee .

Appeal from the United States District Court for the 
Eastern District of Louisiana; Honorable 

Wayne G. Borah, Judge.

BRIEF ON BEHALF OF CHARLES S. BARNES, 
DEFENDANT AND APPELLEE.

HUGH M. WILKINSON,
A ttorney fo r  Appellee.

H A U S E R  P R I N T I N G  C O . ,  N E W  O R L E A N S





United States Circuit Court o f Appeals
FIFTH  CIRCU IT

No. 6828

A N T O IN E  M. TR U D E A U ,

versus

CH ARLES S. BARNES,

A ppellan t,

A p p e llee .

Appeal from the United States District Court for the 
Eastern District of Louisiana; Honorable 

Wayne G. Borah, Judge.

BRIEF ON BEHALF OF CHARLES S. BARNES, 
DEFENDANT AND APPELLEE.

May It Please Your H onors:

This is an attempt to upset Louisiana’s system of 
registering voters, disguised as a damage suit against 
the Registrar of Voters.

The attack is made on the “ understanding clause” 
of the Louisiana Constitution by the negro plaintiff, who 
pitches his complaint on race discrimination.



2

He seeks to show in the constitutional duties of the 
Registrar an analogy to the fixed letter of the since out­
lawed “grandfather clause,” but persistently overlooks 
the fact that in Louisiana the Registrar is merely a sub­
ordinate authority, in the sense that he is effectively re­
strained and controlled in all registration matters by 
the District Court, which are open to any complainant 
instanter and w ithout expense in a registration contro­
versy.

This legal right the plaintiff refuses arbitrarily to 
avail himself of, although if he is qualified to vote as 
completely as he says he is, your Honors would have to 
believe that the State Court would completely stultify it­
self, to the mere end of keeping this one colored man 
from registering as a voter, before your Honors could 
share his view that he has to obtain the interference of 
the Federal Court in order to procure justice.

The defendant Registrar interposed certain excep­
tions to the suit, which exceptions are discussed in the 
following pages. The District Judge maintained the ex­
ceptions of no right or cause of action, which, he said, 
made it unnecessary to consider the other exceptions.

From this judgment Trudeau has appealed.

The opinion of Judge Borah is printed in the tran­
script from page 24 through page 32, and we adopt it 
as our chief argument, since his Honor has so thorough­
ly and ably analyzed the legal situation in this case.

Having briefed the matter very carefully in the 
lower court, and the legal situation being the same here, 
we now print our previous brief, as follows:



3

BRIEF.

This is a suit at law for damages by a colored man 
named Antoine M. Trudeau against Mr. Charles S. 
Barnes, the Registrar of Voters for Orleans Parish.

The amount claimed in damages is $5,000.00.

The basis of the claim is that Mr. Barnes refused to 
register Trudeau as a voter. The elements of the claim 
are: deprivation of the rights of voting, public and pri­
vate humiliation, scandal and infamy, impairment of 
social position, and injury in business and reputation 
(see Art. XVI of petition).

Since there is no diversity of citizenship, and an 
ordinary claim in damages would not lie, your Honor 
must maintain our exception of no right of action to all 
of the foregoing elements of alleged damage except that 
relating to the deprivation of the right to vote.

Only this right of action is given by the special stat­
ute under which this form of suit is permissible. This 
special statute, enacted in the days of Reconstruction 
after the close of the Civil War, on April 20th, 1871, is 
now Section 43, Chapter 3, Title 8, page 50, United 
States Code Annotated, and reads as follows:

Civil action for deprivation of rights. Every 
person who, under color of any statute, ordi­
nance, regulation, 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 jurisdiction 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



4

equity, or other proper proceeding for redress. 
(R. S. 1979.)

Your Honor will note that the foregoing statute 
undertakes to redress only the deprivation of the civil 
right. This is quite different from the other rights of 
action, in cases of conspiracies, covered by Sections 47 
and 48 of the same title, also reconstruction legislation, 
in which reference is made to injury in “person or 
property,” as well as the deprivation of the civil right, 
and that “the party so injured O R deprived may have 
an action,” etc.

Section 43, Title 8, U. S. C. A., above quoted, is 
placed within the jurisdiction of your Honor’s Court 
by sub-division 14, of Section 41, Title 28, U. S. C. A., 
defining the original jurisdiction of the federal district 
courts to include:

Subd. (14). Suits to redress deprivation of civil 
rights.

Fourteenth. Of all suits at law or in equity 
authorized by law to be brought by any person to 
redress the deprivation, under color of any law, 
statute, ordinance, regulation, custom, or usage, 
of any State, of 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 equal rights to citizens of 
the United States, or of all persons within the 
jurisdiction of the United States. (R. S. 563, par. 
12, 629, par. 16, Mar. 3, 1911, c. 231, 24, par. 14, 
36 Stat. 1092.)

Your Honor will again note that this offense, with-



5

out a conspiracy, does not afford redress for injury to 
person or property, which is specifically allowed in the 
jurisdiction vested by sub-division 12, where a conspira­
cy must exist:

Subd. (12). Suits concerning civil rights. 
Twelfth. Of all suits authorized by law to be 
brought by any person for the recovery of dam­
ages on account of any injury to his person or 
property, or of the deprivation of any right or 
privilege of a citizen of the United States, by 
any act done in furtherance of any conspiracy 
mentioned in section 47 of Title 8. (R. S. 563,
par. 11, 629, par. 17; Mar. 3, 1911, c. 231, 24, par. 
12, 36 Stat. 1092.)

All of the above-quoted post-war Statutes, of course, 
were designed and intended to better effect the pur­
poses of the Fourteenth Amendment, relating to the de­
nial to any person within a State’s jurisdiction of the 
equal protection of the laws, and the Fifteenth Amend­
ment prohibiting any State from denying or abridging 
the right of United States citizens to vote on account of 
race, color or previous condition of servitude.

It has been repeatedly decided that the Fourteenth 
and Fifteenth Amendments are directed only at the 
States, and do not control the actions of individuals, 
political parties, etc. Such was the very recent decision 
of the United States Circuit Court of Appeals for this 
Circuit. Mixon v. Condon, 49 Fed. (2d) 1012, certiorari 
granted and now pending in United States Supreme 
Court.

However, we will assume for the purpose of this



6

discussion that since the Constitution and election laws 
of the State of Louisiana are attacked in this case by 
Trudeau, and since Mr. Barnes is named in his official 
capacity as an officer of the State, the Registrar of 
Voters for Orleans Parish, and assailed because of an 
alleged official act, this case falls within the Fourteenth 
and Fifteenth Amendments, affecting a State only.

The suit can therefore also come within the pur­
pose of sub-division 14 of the jurisdiction granted this 
Court, to award redress for deprivation of the civil right 
alleged to have been withheld by defendant, but not fo r  
dam age to person or property , which attempted rights of 
action must be dismissed from the suit.

So we may begin with the proposition that the 
plaintiff Trudeau on October 6th, 1931, has sued Regis­
trar Barnes for $5,000.00 damages for alleged depriva­
tion of the civil right to register as a voter in elec­
tions, the alleged deprivation having been on June 18th, 
1931.

Your Honor should take judicial notice of the fact 
that no election whatever in which Trudeau could prob­
ably have voted took place between June 18th and Octo­
ber 6th, 1931, and therefore Trudeau cannot possibly 
have sustained any damage in the sum of $5,000.00 or 
in any sum whatsoever. Your Honor should, therefore, 
not permit this proceeding, under the subterfuge of a 
damage suit, to be used as a vehicle to attack the Con­
stitution and laws of the State of Louisiana, but should 
dismiss it under our exception of no cause of action.

We hereafter analyze the petition of Trudeau in



7 -'

detail, but before doing so we wish to state the excep­
tions which we now rely upon. They are as follows:

1. P R E M A T U R IT Y : Under Article 15 of
the Code of Practice of Louisiana, which in pro­
ceedings at law in this jurisdiction is followed 
by this Court, “an action can only be brought 
by one having a real and actual interest which 
he pursues, but as soon as that interest arises, he 
may bring his action.”

We respectfully submit that under Section 43, Title 
8, U. S. C. A., Trudeau might have an action in equity 
in some form to enforce his registration, but he has no 
actual or real interest to claim damages at law for 
being deprived on the right to vote at a time when he 
has never had any occasion to vote, nor could he ever 
have voted, because there have been no elections be­
tween the date of his alleged cause of action and the 
date he filed his suit.

So we say his suit is premature, because your Honor 
knows that between the dates given he had absolutely 
no real or actual interest in voting—as a matter of fact, 
had no voting to do, and therefore no damage by not 
voting.

2. MOTION TO STRIKE OUT IMMATERIAL 
MATTER.

The articles and portions of articles we ask to 
strike out of the petition all relate to matters in which 
the plaintiff has no interest whatever, such as the alle­
gation of Article XV regarding the alleged manner of 
registration of all voters in Precinct 1 of Ward 5 of



8

New Orleans, and on the other hand, matters for 
which Mr. Barnes certainly cannot be held responsible 
in what is, after all, a purely personal damage suit in 
its consequences to him, such as the history of the so- 
ca lled  “ grandfather clause,”  (Articles VIII and IX), the 
comparison of population and registration as between 
whites and blacks in the whole State of Louisiana (Arti­
cle X), and the actions of other registrars elsewhere in 
Louisiana (Article XIX).

Certainly your Honor does not wish to impose on 
Mr. Barnes, in defense of his own personal behavior, 
and in a damage suit that nobody else is going to pay 
for, the burden of running down and refuting the 
charges of Trudeau regarding Louisiana’s alleged past 
bad treatment of the negro under the “grandfather 
clause,” or checking the State-wide statistics of compara­
tive population and registration, and what other regis­
trars have or have not done, and dragging the whole 
body of voters of the First Precinct of the Fifth Ward 
to court to find out what has or has not been done in 
each individual voter’s case in that precinct.

Not only are all of the foregoing matters grossly 
immaterial to Trudeau’s attempted cause of action on 
his own behalf for damages at law, but they are neces­
sarily oppressively burdensome to the defense as mat­
ters of evidence, if allowed to be gone into, and will 
endlessly involve the Court in an inquisition into the 
whole history of the franchise from one end of Louisi­
ana to the other, and since the Civil War.

Counsel cannot brush away those objectionable arti­
cles with the suggestions that they are merely narra-



9

tive. If they stay in the petition, your Honor knows we 
must answer them under oath, which means unnecessary 
and burdensome research, and we must prepare facts 
under them for the trial, which will be oppressively 
troublesome and expensive.

We, therefore, respectfully ask, in the alternative, 
that this motion to strike out be granted in each instance 
specified.

3. EXCEPTION OF VAGUENESS.

We have next pleaded, in the alternative, an excep­
tion of vagueness to three details of the petition. In 
two instances (Articles IX and XIX) petitioner has re­
lied on cases of other negroes who have been denied 
the right to vote, either by himself, his deputies, or other 
registrars elsewhere in the State. In another instance 
(Article XV) petitioner relies on the alleged registra­
tion of persons not qualified.

We think that all of these matters are utterly irrele­
vant and immaterial to plaintiff’s damage suit, and we 
have asked that the paragraphs be stricken out. Should 
your Honor not grant the prayer to strike out, plain­
tiff should certainly be ordered to amend and make his 
allegations specific as to persons, times and places, so 
that we can properly prepare to meet the evidence on 
these details which plaintiff’s counsel has in mind to use 
against Mr. Barnes in support of these charges.

4 and o. This leaves us only our basic exceptions 
of no cause or right of action, which we will discuss at 
length, since we hope to have your Honor dismiss the 
suit in its entirety, either for lack of cause or right of



10

action or because it was premature, asking for the strik­
ing out or elaboration of portions of the pleadings only 
in the alternative.

Let us now analyze the details of the petition.

This petition consists of 20 paragraphs, but it is 
apparently divided into two alternative causes of action, 
with the first 16 paragraphs in the first cause of action 
and paragraphs XVIII and IX added as a second cause 
of action, with paragraphs XVIII and XX merely to 
introduce and conclude the second cause of action.

The first six articles of the petition virtually set 
out all the pertinent facts of the case; the balance is 
made up of arguments of law and conclusions.

An analysis of the petition would be as follows:

Trudeau, the plaintiff, a negro, born in Louisiana, 
41 years of age, resident in New Orleans more than 20 
years, claiming to have been registered and voting dur­
ing 1927 to 1930, sues Registrar Barnes for $5,000 dam­
ages for alleged refusal to register him in the new Lou­
isiana registration for four years beginning January 
1st, 1931.

The main allegation of fact (Article IV) is that on 
June 18th, 1931, Trudeau applied for registration and 
“was furnished with a registration blank form and re­
quested to fill it out in his own writing with his name, 
place, and date of birth, age, ward, residence, and all 
the other data required thereon. That your petitioner 
D U LY  A N D  C O R R E C TLY  filled out all the blanks on 
the said form in his own handwriting and returned the 
form to the said Charles S. Barnes, Registrar, who then



11

demanded that your petitioner read the paragraph from 
Section 1, Article VIII of the Constitution of the State 
of Louisiana containing the understanding clause, which 
is as follows: ‘Said applicant shall also be able to read 
any clause in this Constitution, or the Constitution of 
the United States, and give a reasonable interpretation 
thereof5; and that he explain the meaning of the para­
graph.”

It will be noticed that, with regard to the filling 
out of the application form (which is recited in blank 
in Article VII) Trudeau expresses the conclusion  only 
that he “ duly and correctly filled out same, and does not 
state the facts, that is to say, the details inserted by him 
in said blank form, from which he draws and the Court 
can only draw, such conclusion that his performance 
was “ due” and “ correct.”

With regard to the reading and reasonable inter­
pretation of the clause from the Louisiana Constitution, 
as propounded by Registrar Barnes, plaintiff then goes 
on to allege (Article IV ): “Your petitioner correctly
read the said section, A N D  SO U G H T TO  EXPLA IN  
ITS M E A N IN G , but the said Charles S. Barnes arbitrari­
ly declared that your petitioner had not perfectly under­
stood and explained the meaning thereof, and refused 
your petitioner the right to register.”

Of course, in order to allege a denial of the right 
to register, plaintiff must allege, as a matter of state­
ment of facts, and not by mere conclusions, his posses­
sion of those qualifications and his observance of those 
proceedings fixed by law as conditions precedent to 
such registration.



12

Beyond the foregoing averments (Article IV), that 
he “duly and correctly” filled out the application form 
(which is only the expression of a conclusion); and 
that, with regard to the clause of the Louisiana Consti­
tution indicated by Registrar Barnes, he “sought to ex­
plain its meaning” (which certainly does not meet, even 
by way of allegation, the constitutional test that the 
applicant shall, “give a reasonable interpretation” of 
such clause), what other allegations of the facts of Tru­
deau’s qualification to register as a voter in Louisiana 
are contained in his petition.

Tracking the requirements of the Louisiana Consti­
tution (Section 1, Article VIII, Constitution of 1921), he 
says:

1. He is a citizen of this State and the United 
States, native-born, over 21 years of age, and an actual 
bona fide resident of the State for two years (Article 1).

2. He is an actual bona fide resident of the Parish 
of Orleans one year, and of the municipality four months 
(Article II).

3. He fails to make any allegation anywhere in 
the petition that he was a bona fide resident of the pre­
cinct in which he offered to vote for three months next 
preceding any election.

4. As to the constitutional requirement of good 
character, the allegation (Article VI) that “he is by 
occupation manager of a life insurance company); has 
always borne a good reputation as a citizen and a 
member of the community, has never been arrested or



13

charged with any criminal offense,” will probably suf­
fice to sustain this essential allegation.

5. There is, however, no allegation in the peti­
tion that, as required by the Louisiana Constitution, 
Trudeau understands “ the duties and obligations of 
citizenship under a republican form of government.” 
The nearest his petition comes to this is (Article VI) 
that Trudeau, “in a general way, is acquainted with the 
provisions of the Constitution of the United States and 
of the State of Louisiana,” which does not appear to 
us to fit the language of this constitutional requirement. 
Nor do we think the further allegation (Article VI) of 
Trudeau’s conclusion that he “believes and avers that 
his education and intelligence is superior to that of 
the average man in the community in which he re­
sides” is sufficient to satisfy the necessity for an allega­
tion that he “shall understand the duties and obliga­
tions of citizenship under a republican form of gov­
ernment.”

6. As to ability to read or write, Trudeau ade­
quately alleges this in Article VI, where he describes 
in some detail his education.

7. As to the requirement that he shall make under 
oath written application for registration, containing 
essential facts, and that this “ shall be entirely written, 
dated and signed by him” and “ in the presence of the 
registration officer or his deputy, without assistance or 
suggestion from any person or any memorandum what­
ever other than the form of application,”  there is abso­
lutely no allegation of facts that Trudeau followed this 
necessary procedure, only the conclusive averment above



14

referred to (Article IV ) that he “ duly and correctly  
filled out all the blanks on the said form in his own 
handwriting,” which averment again falls far short of 
the constitutional procedure.

8. We have already argued that the remaining require­
ment of the Louisiana Constitution, that the applicant 
must be able to give “a reasonable interpretation” of 
“ any clause” in the state or federal constitutions is not 
satisfied by the allegation (Article IV), only to the 
effect that Trudeau “sought to explain its meaning.” 
In other words, our contention here is that, if the under­
standing clause of the Louisiana Constitution be valid 
under the 14th and 15th amendments to the United 
States Constitution (which we contend it is), then Tru­
deau cannot institute this action without fundamentally 
and primarily alleging that he can read any clause in 
either constitution and give a reasonable interpretation 
thereof, and particularly that he has given a “ reason­
able interpretation” of any such clause actually indi­
cated to him by the Registrar when he applied for 
registration, not that he merely “sought to explain 
its meaning,” as herein alleged.

As far as any other allegations in the opinion bear­
ing on Trudeau’s qualifications to register are con­
cerned, we do not believe the allegation (Article 11) 
of prior registration and voting (during 1927 to 1930) 
establishes any such qualifications, as a man not quali­
fied might have improperly gotten on a prior registra­
tion roll; likewise the allegation (Article VII) that Reg­
istrar Barnes based his refusal to register Trudeau, 
“ solely and entirely” upon the understanding clause,



15

cannot dispense with the legal necessity that Trudeau, 
in setting up by way of a law-suit his denial of a legal 
right, affirmatively disclose the existence of every fact 
legally qualifying him to assert such a right; likewise 
the allegation (Article VI) that “he was in every way 
qualified for registration as a voter under the validly 
adopted provisions of the constitution and laws of Lou­
isiana” is merely the statement of a conclusion of the 
pleader, unless the fact of the existence of each neces­
sary point of qualification is recited; and likewise it is 
equally a conclusion only that (Article XII) were it not for 
the understanding clause Trudeau could register and 
vote at all elections in New Orleans. These four general 
averments seem to be the only ones in the petition (ex­
cept those more specific ones already discussed) bearing 
on the point of whether or not Trudeau, in setting up 
his main contention that on June 18th, 1931, he was 
wrongfully refused registration, has laid the necessary 
foundation for his suit by alleging, as matters of fact, 
not as matters of conclusion, each necessary item of 
qualification under the constitution of Louisiana, lack­
ing any of which items of qualification he has no right 
to register, and therefore lacking the allegation  of any 
of which fa cts  his petition presents no right of action 
by suit based on denial of registration.

To recapitulate the foregoing, and summarize this 
argument, we say the petition does not appear to state 
a right of action in Trudeau because of its failure to 
allege the constitutional qualifications and/or proce­
dure:

1. That he is an actual bona fide resident of the 
precinct in which he offered to vote.



16

2. That he understands the duties and obligations 
of citizenship under a republican form of government.

3. That he has made, under oath, administered by 
the registration officer or his deputy, application for 
registration containing essential facts showing he is en­
titled to register and vote, entirely written, dated and 
signed by him in the presence of the registration offi­
cer or his deputy, without assistance or suggestion from 
any person or any memorandum whatever, other than 
the form of application.

4. That he can give a “reasonable interpretation” 
of “ any clause” in the United States Constitution or 
Louisiana Constitution, or particularly that he has given 
a “reasonable interpretation” of any such clause actu­
ally indicated to him by the Registrar when he applied 
for registration.

In view of the three first immediately above-listed 
fatal omissions, in the statement of a right of action in 
the petition, it is immaterial to the suit whether the 
understanding clause of the Louisiana Constitution con­
flicts with the 14th and 15th federal amendments or not, 
since Trudeau has not shown his right to register under 
other requirements of Louisiana law not attacked in 
this suit. And if, as we contend, the understanding 
clause be valid, then Trudeau is also out of Court on 
the fourth item above-listed, since he also fails to allege 
he has complied with the understanding clause by giv­
ing the “reasonable interpretation” required of him.

Your Honor will recall that on the argument of 
these exceptions, your Honor was inclined to agree 
with us from the bench that plaintiff had not met the



17

requirement of the Louisiana Constitution by alleging 
merely that he had “sought to explain” the meaning of 
the clause submitted to him for “reasonable interpreta­
tion,” and your Honor seemed about to suggest some 
method of amending this paragraph to help plaintiff 
make himself more specific.

Thereupon, plaintiff’s counsel seemed to take the 
position in argument that he did not want to have any 
debate over whether or not Trudeau had actually given 
or had tried to give Mr. Barnes a “reasonable interpreta­
tion” of the indicated constitutional clause, but he im­
pressed us as standing flat-footed on the ground that 
Trudeau could and did virtually defy Mr. Barnes to 
require such interpretation from him. Our recollection 
is that he even pursued this line of thought to the ex­
tent of arguing that it was useless for Trudeau to ex­
haust his remedies in the Louisiana Courts in the manner 
provided by law, since he would not submit to giving the 
“reasonable interpretation” even to the Louisiana Courts, 
and which Courts, he naturally expected, would not 
ignore that requirement of the registration law, as Tru­
deau himself desires to ignore it.

Under such a deliberately chosen line of argument, 
it would appear to us that plaintiff has conceded the 
merit of our exception of no right of action insofar as 
the second of his alternative petitions is concerned, be­
cause in that second alternative he admits the validity 
and constitutionality of the “ understanding clause” of 
Louisiana’s Constitution, and directs his attack on the 
alleged discrim inatory application  of said procedure by 
the registrar of voters.



18

If the clause be valid and constitutional, then Tru­
deau must comply with it, whether he be discriminated 
against, or discriminated for, and he must comply with 
it to the exhaustion of his legal remedies in Louisiana 
courts; and until he so complied with it to the limit of 
his power, and alleges the facts showing he has done 
so, he has no right of action to prosecute his present 
suit before your Honor.

So we feel that in the very argument made in your 
Court on these exceptions, Trudeau’s counsel has ad­
mitted that by the insufficiency of his averment regard­
ing “reasonable interpretation,” and which insufficiency 
is plainly apparent on the face of the petition, he has 
no cause of action under his second alternative claim of 
discrim inatory operation  by Mr. Barnes of the “ under­
standing clause,” and is making his fight now only on 
the alleged invalidity and unconstitutionality of the “un­
derstanding clause,” that is to say, on his first alterna­
tive grounds of his suit.

The first alternative reason, as well as we can 
gather it from Articles VIII and IX, is directed at the 
absolute invalidity of the understanding clause of the 
Louisiana Constitution charging it to be a substitute for 
the outlawed “grandfather clause” and enacted to con­
tinue the unconstitutional exclusion of negroes as voters, 
and averring that Registrar Barnes utilized the said un­
derstanding clause as a “cloak” for refusing to register 
Trudeau, a negro, as had also been done by Registrar 
Barnes and his deputies to “large numbers” of negro 
citizens.

The second alternative reason, as well as we can 
gather it from Articles XVIII and XIX, attacks the un-



19

derstanding clause on the ground that it imposes an 
“arbitrary, unreasonable and capricious” qualification 
on the right to register, and confers an “ unlimited, un­
guided and arbitrary” power upon the Registrar to de­
prive voters at will of the right to vote; that Registrar 
Barnes utilized the said understanding clause as a “cloak 
or device” for refusing to register Trudeau, a negro, as 
had also been done by Registrar Barnes and other regis­
trars and their deputies to “ large numbers” of negro 
citizens.

In other words, the first cause of action seems to 
be an attack on the letter of the understanding clause, 
contending it to be unconstitutional by its very terms; 
while the second cause of action seems to be an attack 
on the possibilities for abuse of power under the under­
standing clause, contending it to be unconstitutional by 
reason, not of its own express terms, but of the alleged 
opportunity it affords for unconstitutional discrimina­
tion against negro voters.

In one instance, Trudeau says the understanding 
clause is unconstitutional of itself, without regard to the 
manner of its use; that failing, and the letter of the 
understanding clause being not in conflict with the fed­
eral constitution, then he further says, in his second 
instance, it still violates the federal constitution by the 
unconstitutional manner of its use.

He then re-unites both threads of this legal argu­
ment by going on to charge that the understanding 
clause violates the 14th and 15th amendments and Sec­
tion 2004 of the U. S. Revised Statutes (giving effect to 
the 15th amendment).



20

Let us observe more carefully just how plaintiff 
divides his petition. He makes a common statement of 
his facts, and certain contentions and conclusions per­
tinent to both issues, in the first seven Articles and in 
Articles X to XVI, both inclusive. He then states his 
first alternative issue in Articles VIII and IX. By Arti­
cle XVII he reiterates Articles I to VII, and by Article 
XX he reiterates Articles X to XVI. This leaves Articles 
XVIII and XIX to state his second alternative issue, as 
compared to the statement of his first alternative issue 
in Articles VIII and IX.

We write the comparable Articles side by side for 
a more convenient comparison:

VIII.
T h e  “ understanding” 

clauses contained in Sub­
sections (c) and (d) of the 
said Section 1, quoted in 
the preceding paragraph, 
were enacted solely as a 
means of preventing negro 
residents of Louisiana, 
otherwise qualified to vote, 
from registering prior to 
public elections and of de­
priving them, solely be­
cause of their race or col­
or, of the right to vote at 
all elections of local, state 
and federal officers. The 
said clauses were devised 
and enacted as a substitute 
for the so-called “grand­
father clause” in the Lou-

XVIII.
Your petitioner shows 

that the “understanding” 
clauses contained in Sub­
sections (c) and (d) of 
Section 1 of Article VIII of 
the Louisiana Constitution 
of 1921, quoted in Article 
7 of this petition, impose 
an arbitrary, unreasonable 
and capricious qualifica­
tion upon the right of your 
petitioner and on other res­
idents and citizens of Lou­
isiana to register as voters 
at public elections in the 
State of Louisiana, and, 
consequently, upon his and 
their right to vote thereat. 
The said clauses confer an 
unlimited, unguided, and



21

isiana Constitution of 1898, 
which was intended to ex­
clude all illiterate negroes 
from the right of suffrage 
while granting it to illiter­
ate white persons. The 
constitutional invalidity of 
this “grandfather clause” 
became established as a 
result of the decisions of 
the Supreme Court of the 
United States in Guinn and 
Beal v. United States, 238 
U. S. 347, and Meyers v. 
Anderson, 238 U. S. 368. 
Thereafter, in order to 
continue the unconstitu­
tional exclusion of negro 
citizens, solely because of 
their race or color, from 
the right of suffrage and 
to extend the exclusion to 
Negro citizens who are lit­
erate as well as to those 
who are illiterate, and in 
order to authorize and en­
able the registrars of vot­
ers and their deputies to 
refuse to register all quali­
fied Negro voters, solely 
because of their race or 
color, the State of Louisi­
ana adopted and enacted 
the “ u n d e r s t a n d i n g ” 
clauses in Subsections (c) 
and (d) of Section 1 of Ar­
ticle VIII of the Constitu­
tion of 1921, quoted in par­
agraph 7 of this petition.

arbitrary power upon the 
register of voters and his 
deputies to fail and refuse 
to register your petitioner 
and other persons other­
wise qualified to vote at 
such elections and thereby 
to deprive them at will of 
the right to vote thereat.



22

IX.
Your petitioner shows 

that the said “understand­
ing” clauses were in fact 
utilized by the said Charles
S. Barnes as a cloak for 
refusing to register your 
petitioner, and for depriv­
ing him of the right to vote 
at all elections held in the 
Parish of Orleans during 
the ensuing four years, 
solely because your peti­
tioner is a member of the 
Negro or colored race; 
that the said “understand­
ing” clauses have likewise 
been utilized and adminis­
tered by the said Charles 
S. Barnes, Registrar of Vo­
ters, and his deputies in 
the State of Louisiana so 
as to carry out the purpose 
for which these clauses 
were adopted and to de­
prive large numbers of Ne­
gro citizens resident in 
Louisiana of the right to 
vote at public elections 
solely because of their race 
or color.

XIX.
That the said “ under­

standing” clause was in 
fact utilized by the said 
Charles S. Barnes as a 
cloak or device for refus­
ing to register your peti­
tioner and for depriving 
him of the right to vote at 
all elections held in the 
Parish of Orleans in the 
next four years, solely be­
cause your petitioner is a 
member of the Negro or 
colored race. The “under­
standing” clauses h a v e  
likewise been utilized and 
administered by the said 
Charles S. Barnes and by 
other registrars of voters 
and their deputies in the 
State of Louisiana so as to 
deprive large numbers of 
Negro citizens resident in 
Louisiana of the right to 
vote at public elections 
solely because of their race 
or color.

side for purpose of com-Having thus read, side by 
parison, the gist of the charges made by plaintiff Tru­
deau, let us pass on to consider what the law is in Lou­
isiana upon which plaintiff makes his double-barrelled 
attack.



23

He has quoted in his petition only part of the 
Louisiana law on the franchise. We are adding other 
pertinent portions of that law which, for the purpose of 
his suit, he has preferred to leave out of his petition.

We quote, first of all, Section 1 of Article VIII of 
the Constitution of 1921, providing the qualifications 
for registration:

“After January 1, 1922, the right to vote in 
Louisiana shall not exist except under the pro­
visions of this Constitution.

Every citizen of this State and of the United 
States, native born or naturalized, not less than 
twenty-one years of age, and possessing the 
following qualifications, shall be an elector, and 
shall be entitled to vote at any election in the 
State by the people:

(a) He shall have been an actual bona fide 
resident of the State for two years, of the par­
ish one year, of the municipality in municipal 
elections four months, and of the precinct, in 
which he offers to vote, three months next pre­
ceding the election; provided, that removal from 
one precinct to another in the same parish shall 
not operate to deprive any person of the right 
to vote in the precinct from which he has re­
moved until three months after such removal; 
provided, that removal from one parish to an­
other shall not deprive any person of the right 
to vote in the parish from which he has been 
removed for district officers to be elected in a 
district which includes the parish to which he 
has removed, or for State officers, whether the 
parish be in the same district or not, until he 
shall have acquired the right to vote for such 
officers in the parish to which he has removed.



24

(b) He shall be, at the time he offers to 
vote, legally enrolled as a registered voter on his 
own personal application, in accordance with the 
provisions of this Constitution, and the laws en­
acted thereunder.

(c) He shall be of good character and un­
derstand the duties and obligations of citizenship 
under a republican form of government. He 
shall be able to read and write, and shall demon­
strate his ability to do so when he applies for 
registration by making, under oath, administered 
by the registration officer or his deputy, written 
application therefor, in the English language, or 
his mother tongue, which application shall con­
tain the essential facts necessary to show that 
he is entitled to register and vote, and shall be 
entirely written, dated, and signed by him, ex­
cept that he may date, fill out, and sign the blank 
application for registration hereinafter provided 
for, and, in either case, in the presence of the 
registration officer or his deputy, without assist­
ance or suggestion from any person or any mem­
orandum whatever, other than the form of appli­
cation hereinafter set forth provided, however, 
that, if the applicant be unable to write his ap­
plication in the English language, he shall have 
the right, if he so demands, to write the same in 
his mother tongue from the dictation of an 
interpreter; and, if the applicant is unable to 
write his application by reason of physical dis­
ability, the same shall be written at his dicta­
tion by the registration officer or his deputy, 
upon his oath of such disability.

Until and unless otherwise provided by law, 
the application for registration above provided 
for, shall be a copy of the following form, with



25

the proper names, dates and numbers substituted 
for the blanks appearing therein, to-wit:

I am a citizen of the State of Louisiana. My
name is Mr......... Mrs............ . M is s ... ., I was
born in the State (or county) o f ..........., Parish
(or county) o f ..........., on the............day o f ...........,
in the year........... I am now. . . .  years, . . . .
months and...........days of age. I have resided
in this State since..............., in this parish since
................ and in precinct No.............. , in Ward
No.............. . since..........., and I am not disfran­
chised by any provision of the Constitution of 
this State.

Said applicant shall also be able to read any 
clause in this Constitution, or the Constitution 
of the United States, and give a reasonable in­
terpretation thereof.

(d) If he is not able to read or write, then 
he shall be entitled to register if he be a person 
of good character and reputation, attached to 
the principles of the Constitution of the United 
States and of the State of Louisiana, and shall 
be able to understand and give a reasonable in­
terpretation of any section of either Constitution 
when read to him by the registrar, and he must 
be well disposed to the good order and happiness 
of the State of Louisiana and of the United States 
and must understand the duties and obligations 
of citizenship under a republican form of gov­
ernment.

(e) He must in all cases be able to establish 
that he is the identical person whom he repre­
sents himself to be when applying for registra­
tion, and when presenting himself at the polls 
for the purpose of voting in any election or pri­
mary election.”



26

The foregoing constitutional provisions are re-stated 
in the present registration law of Louisiana, Act 122 of 
1921, in the follow ing Sections:

Section 10. That, in order to be registered 
as a voter, a person shall have been an actual 
bona fide  resident o f  the State fo r  two years, o f 
the Parish one year, o f the Municipality in Muni­
cipal Elections four months, and o f  the precinct, 
in which he offers to vote, three months next 
preceding the election; provided, that the re­
m oval from  one precinct to another in the same 
parish shall not operate to deprive any person 
o f the right to vote in the precinct from  which 
he has rem oved until three months after such 
rem oval; provided, that rem oval from  one parish 
to another shall not deprive any person o f the 
right to vote in the parish from  which he has 
rem oved fo r  district officers to be elected in a 
district which includes the parish to which he 
has rem oved, or fo r  State officers, whether the 
parish be in the same district or not, until he 
shall have acquired the right to vote for such 
officers in the parish to which he has rem oved. 
Any voter m oving from  one election ward or pre­
cinct to another in the same Parish, and therein 
continuously residing fo r  three months, shall by 
making affidavit o f such change o f residence, 
giving date o f such rem oval to the registrar or 
his ch ief deputy, Rave the registration records 
changed accordingly to correspond with new 
residence; and in a parish containing a City o f 
over one hundred thousand (100,000) inhabitants 
a new certificate o f  registration shall be issued, 
the old certificate taken up by the Registrar and 
filed with the affidavit o f change o f residence; 
if  original registration certificate has been lost,



27

an affidavit by the applicant so stating will be 
filed in its stead. In the Parish o f Orleans, 
should an elector change his residence, it shall he 
his duty, without delay, in writing, to notify the 
Registrar o f such change, giving the date thereof, 
in order that the registration records may be 
corrected. It is specially provided that no 
change o f residence as above-mentioned, shall he 
made on the registration books during the thirty- 
day period next preceding the election.

In the event that a person, who has previ­
ously registered, shall m ove from  one precinct in 
a parish to another precinct o f  the same parish 
in any year that his registration shall expire, 
such person shall have the right to register in 
the precinct to which he has rem oved at any time 
prior to thirty (30) days before any election by 
making oath before the proper registration o ff i­
cer that he has resided in such precinct for a 
period o f thirty days.

Section 22. That the applicant fpr registra­
tion throughout the State, in order to be regis­
tered, shall be o f good character and shall under­
stand the duties and obligations o f citizenship 
under a Republican form  o f government. He 
shall be able to read and write and shall dem on­
strate his ability to do so when he applies fo r  
registration by making, under oath, administered 
by the Registration O fficer or his Deputy, writ­
ten application therefor, in the English language 
or  his mother tongue, which application shall 
contain the essential facts necessary to sihow that 
he is entitled to register and vote and shall be 
entirely written, dated and signed by him, except 
that he m ay date, fill out, and sign the blank 
application for  registration hereinafter provided 
for, and, in either case, in the presence o f the



28

Registration O fficer or his Deputy, without as­
sistance or suggestion from  any person or any 
memorandum whatever, other than the form  of 
application hereinafter set forth; provided, how­
ever, that, if  the applicant be unable to write his 
application in the English language, he shall have 
the right, if  he so demands, to write the same in 
his mother tongue from  the dictation o f an in­
terpreter; and, if  the applicant is unable to 
write his application by reason o f physical dis­
ability, the same shall be written, at his dicta­
tion, by the Registration O fficer or his Deputy, 
upon his oath o f such disability.

For the purpose o f  carrying out the provi­
sions o f the Constitution o f the State o f Louisi­
ana, set out in this Section, any Deputy Registrar 
provided for  in this Act is authorized to act fo r  
and in the place and stead o f any Registrar o f 
Voters by whom  he is appointed.

The application for  registration above pro­
vided for, shall be a copy o f  the follow ing form , 
with the proper names, dates, numbers and other 
inform ation required, substituted for  the blanks 
appearing therein, as follow s, to-w it;

I am a citizen o f the State o f Louisiana. My
name is Mr............ , Mrs............... , Miss.............  I
was born in the State (or  Country) o f ............,
Parish (or County) o f . . . . ,  on th e ............day o f
..............in the y ea r ............... I am n o w .................
years, ............months, a n d .............days o f age. I
have resided in this State since............ . in this
Parish sin ce ............, and in Precinct N o................,
in W ard  N o...........  o f  this Parish continuously
sin ce ..............and I am not disfranchised by  any
provision o f the Constitution o f  this State. The 
name o f the householder at my present residence 
i s ............  My occupation is ............  My color is



29

............  My sex i s ............  I am affiliated with
the............Party.

The applicant for registration shall not be 
obliged to fill the last blank space in the above 
form , in order to be registered. Failure, how­
ever, to do so, w ill render it unlawful for him to 
vote in any primary election, so long as he has 
not declared his party affiliation, as is elsewhere 
provided in this Act.

The application fo r  registration shall also 
be sworn to by the applicant and the oath ad­
ministered by the Registrar o f Voters or any o f 
his Deputies, who are hereby em powered to ad­
minister same, and any applicant for  registration 
who w ilfully makes a false statement in filling 
out the form  above prescribed shall be guilty o f  
perjury, and upon conviction the penalties now 
provided by law for perjury shall be imposed by 
a Court o f  Competent jurisdiction.

The said applicant shall also be able to read 
any clause in the Constitution o f the State o f 
Louisiana or the Constitution o f the United 
States, and give a reasonable interpretation there­
of.

Section 23. If the applicant fo r  registration 
is not able to read or write, then he shall be 
entitled to register if he shall be a person o f 
good character and reputation, attached to the 
principles o f the Constitution o f  the United 
States and o f  the State o f Louisiana, and shall 
be able to understand and give a reasonable in­
terpretation o f  any section o f either Constitution 
when read to him by the Registrar, and he must 
be well disposed to the good order and happiness 
o f  the State o f Louisiana and o f the United 
States and must understand the duties and obli­
gations o f citizenshfp under a republican form



30

o f government. The applicant for  registration 
must in all cases be able to establish that he is 
the identical person whom  he represents himself 
to be when applying fo r  registration, and when 
presenting himself at the polls for  the purpose 
o f voting in any election or primary election.

Those portions o f the Louisiana franchise laws 
which plaintiff has seen fit to ignore, both in the pro­
ceedings to obtain registration, and in this suit, are 
also found both in the Constitution and Act 122 o f  1921. 
The Constitutional Articles involved are as follow s:

ARTICLE VIII, Section 5. Any person pos­
sessing the qualifications fo r  voting prescribed 
by this Constitution, who may be denied registra­
tion, shall have the right to apply for relief to 
the district court having jurisdiction o f civil 
cases fo r  the parish in which he offers to regis­
ter. Said court shall then try the cause, giving 
it preference over all other cases, before a jury 
o f  twelve, nine o f  whom  must concur to render 
a verdict. This verdict shall be a final determi­
nation o f  the cause. The trial court may, how ­
ever, grant one new trial by jury. In no cases 
shall any appeal lie or any other court exercise 
the right o f  review.

Any duly qualified voter o f this State shall 
have the right to apply to the district court io 
have stricken o ff  any names illegally placed or 
standing on the registration rolls o f any parish 
within the jurisdiction o f  said court; such ap­
plication shall be tried by preference before a 
jury  o f twelve, nine o f  whom  must concur to 
find a verdict, and no appeal or right o f review 
shall be granted to any party to  said cause, ex­
cept the party whose name is stricken from  the



31

registration rolls; this appeal to be returnable 
to the court o f appeal having jurisdiction o f ap­
peals from  such parish. The finding o f  said 
court o f appeal shall be final, and the same shall 
not be reviewed by any other court. Such appli­
cation and appeals herein above provided for 
shall be without cost.

The Legislature shall provide for the prose­
cution o f all persons charged with illegal or 
fraudulent registration or voting or any other 
crime or offense against the registration or elec­
tion, or prim ary election laws.

W e call attention to the fact that the utmost assist­
ance is given any person who m ay claim a denial o f 
registration.

The trial is had without any cost whatever to the 
applicant for  registration.

Bishop v. Shelburne, 122 La. 429.
Lorio v. Shelburne, 122 La. 434.
State v. Fontenot, 132 La. 481.
Annotated Cases, 1915-A, 76n.

Under Section 16 o f Article VIII o f the Constitution, 
such application to the Courts may be heard and deter­
mined “ at any time prior to the election.”

So your H onor will see full opportunity without 
any expense, is altorded the citizen who is entitled to 
register in order that he may obtain the right Trudeau 
claims to have been deprived o f in this case.

Trudeau had from  June 18th, 1931, when he sought 
registration, until October 6th, 1931, when he filed this 
suit, or a period o f exactly 110 days, to fo llow  the pro­



32

ceeding laid down by the Louisiana law. This was 
ample time for  such a hearing. There was no election 
during the interval, or close thereafter.

Section 12 o f Act 122 o f 1921, gives full effect to 
these Constitutional provisions:

“ Any person possessing the qualifications fo r  
voting prescribed by law, who may be denied 
registration, shall have the right to apply for  
relief to the district court having jurisdiction o f 
civil causes for the parish in which he offers 
to register. Said court shall then try the cause, 
giving it preference over all other cases, before 
a jury o f twelve, nine o f whom  must concur to 
render a verdict. This verdict shall be a final 
determination o f the cause. The trial court may, 
however, grant one new trial by jury. In no 
cases shall any appeal lie or any other court 
exercise the right o f review.

“ Any duly qualified voter o f this State shall 
have the right to apply to the district court to 
have stricken o ff  any names illegally placed or 
standing on the registration rolls o f any parish 
within the jurisdiction o f said court; such appli­
cation shall be tried by preference before a jury 
o f twelve, nine o f whom  must concur to find a 
verdict, and no appeal or right o f review shall 
be granted to any party to said cause, except the 
party whose name is stricken from  registration 
rolls; this appeal to be returnable to the Court 
o f Appeal having jurisdiction o f appeals from  
such parish. The finding o f said Court o f Ap­
peal shall be final, and the same shall not be 
reviewed by any other court. Such application 
and appeals hereinabove provided fo r  shall be 
without cost.”



33

W hen we urged in argument that our exception o f 
no cause o f action was good because Trudeau had re­
fused and failed to exhaust these remedies to be regis­
tered under Louisiana law, Trudeau’s counsel attempted 
to brush aside such necessity o f his client’s exhausting 
legal remedies by saying that a Louisiana court and a 
Louisiana jury would not have dispensed anyway with 
the requirement that Trudeau com ply with the “ under­
standing clause.”

The trouble is that plaintiff is before your Honor 
endeavoring to try the Constitution and laws o f  Louisi­
ana, while all we should be obliged by your Honor to 
try is a $5,000.00 damage suit against Mr. Barnes.

W hy should m oney be taken out o f Mr. Barnes’ 
pocket? As your Honor can see by the laws o f Louisi­
ana, Mr. Barnes in the last analysis is not the actual 
registering authority in Orleans parish.

The citizens decide registrations for  themselves—  
nine o f them out o f a jury o f twelve, without delay and 
without expense.

Mr. Barnes is m erely the chief clerk o f the citizens. 
He simply follow s the rules they lay down, and in case 
o f any dispute, the citizens act, and when they order a 
man registered not even all seven justices o f Louisiana’s 
Supreme Court can say them nay.

Plaintiff has absolutely no cause o f action against 
Mr. Barnes, any m ore than he would have had against 
the watchman at the door o f  Mr. Barnes’ o ffice, had the 
watchman, as Trudeau was entering, said to h im : “ You 
cannot register.”  Trudeau would have said: “ W ell, I’ll



34

see Mr. Barnes about that,”  and your Honor would 
have said, if he did n ot: “ W hy, you can’t sue that watch­
man. You should have gone on to Mr. Barnes.”

And so we say in this brief: Mr. Barnes was just the 
chief clerk, the watchman o f the rolls; the registering 
pow er is the citizens, acting as a jury in the manner laid 
down by Louisiana law, just as much as Mr. Barnes’ 
own o ffice  is created under Louisiana law.

How can Trudeau contend he is going to recognize 
the Louisiana law which creates Mr. Barnes’ office, but 
he is going to ignore the Louisiana law which vests the 
actual pow er o f registration in the citizens, sitting as a 
jury in the Civil District Court?

How can Trudeau sue W atchm an Barnes, when he 
has not gone in and spoken to Registrar Jury?

Of course, we are not getting away from  our origi­
nal proposition that the “ understanding clause”  is valid, 
and that, it being valid, Trudeau cannot attack it as 
discriminatory without alleging he has com plied with 
it to the extent o f giving the “ reasonable interpretation”  
called for, since he certainly must be held to the duty o f 
com plying with any valid law before he can com plain 
that in spite o f his com pliance he is discriminated 
against.

These reasons have already put Trudeau out o f 
court on our exceptions o f no cause or right o f action. 
W e offer his failure to exhaust his legal remedies, and 
the actual lack o f power on the part o f  Mr. Barnes to 
withhold Trudeau’s registration, as additional arguments 
supporting our said exceptions.



35

W e believe we have already given your Honor 
ample reasons for  dismissing plaintiff’s suit, but in or­
der to go into the whole matter thoroughly we will 
proceed to argue the validity o f the “ understanding 
clause.”

W e have already stated in this brief that the Four­
teenth and Fifteenth Amendments to the Constitution o f 
the United States are limitations on only the States, and 
cited the recent case in this circuit o f Mixon ns. Condon, 
49 Fed. (2d) 1012. The Fifteenth Amendment is a di­
rect limitation on the power o f a State to discriminate 
in matters o f franchise because o f race or color.

But the F ifteenth Am endm ent does not create or 
con fer any right o f  su ffrage .

As a matter o f fact, there is nowhere in the Con­
stitution or laws o f the United States any creation or 
conferring o f the right o f suffrage. That right is in­
herent in the States themselves.

Under Article I, Section 2, o f the Federal Constitu­
tion, electors o f members o f  the National House o f  Rep­
resentatives “ shall have the qualifications requisite fo r  
electors o f the most numerous branch o f the State Leg­
islature” ; and under Amendment 17, providing fo r  the 
election o f United States Senators, the same provision is 
made. The President and Vice-President are chosen 
by electors selected in the various states, and in none 
o f these instances does the federal law create, confer or 
qualify the pow er o f any State with regard to the quali­
fication o f its voters in State or national affairs.

Until the adoption o f the Fifteenth Amendment the



36

States were exclusive and supreme in regard to the bal­
lot, and thereafter the Fifteenth Amendment itself has 
been held to be, not a conferring o f any right o f fran­
chise, but only a limitation upon discriminatory State 
laws.

See U. S. v. Reese, 92 U. S. 214, 23 Law. Ed. 563; 
Lackey u. U. S., 107 Fed. 114 (certiorari denied, 45 Law. 
Ed. 1032); U. S. v. Miller, 107 Fed. 913; McPherson v.\ 
Blacker, 146 U. S. 38, 36 Law. Ed. 869.

Having an unqualified and supreme right, subject 
only to the limitation o f the Fifteenth Amendment 
against discrimination because o f race, to prescribe the 
qualifications fo r  its voters, it necessarily follow s that 
so long as there is no such discrimination in its laws 
prescribing such qualifications, a State can prescribe 
whatever requirements fo r  registration and voting that 
its citizenship, in their expression by constitution and 
laws, may please.

NATURE AND SOURCE: The right to vote 
is a political right or privilege, to be given or 
withheld at the exercise o f the law m aking pow er 
o f the sovereignty. It is not a natural right o f 
the citizen, but a franchise depending upon law, 
by which it must be conferred to permit its exer­
cise. It can emanate only from  the people, ei­
ther in their sovereign statement o f  the organic 
law or through legislative enactment which they 
have authorized. It is not included among the 
rights o f  property or o f person. Neither is it an 
absolute unqualified right, but is altogether con­
ventional. W hen once granted it may be taken 
away by the exercise o f  sovereign power, and if



37

taken away no vested right is violated or bill o f 
attainder passed.

20 Corpus Juris 60, verbo “ Elections.”
B Y  TH E  S T A T E S — a. In G eneral: Subject 

to the constitutional restrictions as to race, color, 
and previous condition o f servitude, the states 
have supreme and exclusive pow er to regulate 
the right o f suffrage and to determine the class 
o f inhabitants who may vote. Each state may 
define the right in its own constitution or em ­
pow er its legislature to do so.

20 Corpus Juris 61, verbo “ Elections.”

By virtue o f the inherent right above described, 
Louisiana has written into her Constitution and laws 
the qualifications fo r  registering and voting in this State 
against which plaintiff now complains, and which he 
says are violative o f the Fourteenth and Fifteenth 
Amendments o f the Federal Constitution as discrim ina­
tory toward him, a negro, and which he seeks to nullify 
through the medium o f  this damage suit at law against 
Mr. Barnes.

W e have quoted the provisions o f  Louisiana law on 
the subject in detail, and your Honor can readily see, 
and plaintiff must concede, that there is not a w ord or 
syllable in those provisions o f law which make in terms 
the slightest distinction between the white man and the 
black man.

Unless your H onor is prepared to believe, that had 
Trudeau applied to the Civil District Court fo r  registra­
tion, without expense and without delay, in the m anner 
provided by Louisiana law, and showed him self by 
character, intelligence and otherwise possessed o f the



38

ordinary qualifications im posed in practice on all men, 
a brother judge and twelve responsible citizens o f the 
type usually drawn in that court would have stultified 
themselves on their oaths o f o ffice  and returned a false 
and corrupt verdict and judgment, in a species o f con­
spiracy, as it were, to keep Trudeau from  voting, then 
your Honor cannot believe that Louisiana’s franchise 
laws are discriminatory against Trudeau either in terms 
or practice.

Those laws are obviously fair on their face, and they 
are essentially fair in the practice for relief provided to 
all men— we dare say, with the provision fo r  free and 
immediate jury trial o f  the question, as fa ir and ade­
quate as laws under the Anglo-Saxon conception o f jus­
tice could be drawn.

But we need not argue the matter as an abstract 
proposition, because the whole proposition has been 
passed upon and definitely determined against the con­
tentions o f  plaintiff.

He seeks to contend that the “ understanding clause,”  
or educational qualification o f the Louisiana law, has 
been substituted for the ancient invalid “ grandfather 
clause”  which provided, in effect, that a person could 
not vote if his ancestor prior to the Civil W ar was a 
slave. That was a clear discrimination, and was so held 
to he in the Guinn and M eyers cases, upon which plain­
tiff relies. But those cases do not attack the educational 
qualifications; on the contrary, they sustain it as a valid 
exercise o f  State power, as we w ill later show.

Let us consult Corpus Juris on the subject o f the



39

educational qualifications, and we w ill insert the foot­
note cases in the text as we go along:

“EDUCATIONAL QU ALIFICATION S: Illiter­
acy is not a legal disqualification o f a voter unless 
made so by constitution or valid statute.

16. State v. Pease (Tex. Civ. A.) 147 S. W . 
649; Pearson v. Brunswick County, 91 Va. 322, 21 
S. E. 483.
“ In a few  states there are constitutional and 

statutory provisions prescribing ability to read and 
write, or ability to read and understand any section 
o f  the state constitution, or other educational quali­
fications.

See constitutional and statutory provisions; 
and Price v. Judd, 169 Ky. 772, 185 S. W . 154; 
Ison v. W atson, 169 Ky. 150, 183 S. W . 468; State 
v. Dardenne, 129 La. 835, 56 S. 905; Lorio v. Sher­
burne, 122 La. 434, 47 S. 760; Bishop v. Sherburne, 
122 La. 429, 47 S. 759; Hill v. Howell, 70 W ash. 
603, 127 P. 211; Rasmussen u. Baker, 7 W yo. 117, 
50 P. 819, 38 L.R.A. 773.
“ Such provisions are upheld as not infringing 

the fifteenth amendment o f the federal constitution.
W illiam s v. Mississippi, 170 U. S. 213, 18 S. 

Ct. 563, 42 L. ed. 1012; Stone v. Smith, 159 Mass. 
413, 34 N. E. 521; Dixon v. State, 74 Miss. 271, 20 
S. 839.

(a) Such statutes have been held unconsti­
tutional, not on account o f their provisions as to 
educational qualifications, but on account o f the 
presence therein o f  so-called “ grandfather 
clauses,”  that is clauses which make the right to 
vote depend on conditions existing at a date prior 
to the adoption o f the fifteenth amendment. See 
supra section 15, note 42(b). 

even though they may operate to disfranchise m ore 
black than white voters.



40

Williams v. Mississippi, 170 U. S. 213, 18 S. 
Ct. 583, 42 L. ed. 1012. See also Anderson v. M ey­
ers, 182 Fed. 223, 230 (a ff. 238 U. S. 368, 35 S. Ct. 
932, 59 L. ed. 1349). (“ There are restrictions of 
the right o f voting which might in fact operate 
to exclude all colored men, which would not be 
open to the objection o f discriminating on ac­
count o f race or color. As, for  instance, it is 
supposable that a property qualification might, 
in fact, result, in some localities, in all colored 
men being excluded; and the same might be the 
result, in some localities, from  an educational 
test. And it could not be said, although that was 
the result intended, that it was a discrimination 
on account o f  race or color, but w ould be refer­
able to a different test.” )
“ They are also upheld as against objections that 

they deny the equal protection o f the laws.
Cofield v. Farrell, 38 Okl. 608, 134 P. 407, or that 

they deprive a person o f life, liberty or property, 
without due process o f law.

Cofield v. Farrell, 38 Okl. 608, 134 P. 407; 
Atw ater u. Hassett, 27 Okl. 292, 111 P. 802 (writ 
o f error dism., 227 U. S. 684 mem, 33 S. Ct. 462 
mem, 57 L. ed. 702 m em .)”

W e w ill now refer briefly to the cases relied on by 
plaintiff.

1. Guinn vs. United States, 238 U. S. 347, 59 Law. 
ed. 1340.

2. M eyers vs. Anderson, 238 U. S. 368, 59 L. ed. 
1349.

3. Nixon vs. Herndon, 273 U. S. 536.

The N ixon  case can be disposed o f  very easily. That 
case involved a Texas prim ary law, expressly excluding



41

negroes from  voting in a Dem ocratic primary. Need­
less to say, it was set aside as discriminatory by the 
State. Since then the Dem ocratic Committee has pre­
scribed the qualifications o f voters in its primary. This 
also has been attacked in Nixon v. Condon, supra, but 
this Circuit has held the law good on the ground that 
the Fifteenth Amendment does not control individuals 
or political parties, but only states, and the matter has 
now gone to the Supreme Court.

This leaves us only the Guinn and M eyers cases to 
dismiss. The Guinn case came from  Oklahoma, the 
M eyers case from  Maryland, and they were both decided 
by Mr. Chief Justice W hite on June 21st, 1915.

In the Guinn case, Oklahoma had im posed an edu­
cational qualification on all persons not entitled to vote 
January 1st, 1866, or a lineal descendant thereof; and 
had not imposed same on all other persons. In other 
words, here the objection was not levelled at the “ edu­
cational clause,”  but it was levelled at its imposition 
only on the descendants of slaves as a discrimination 
violating the Fifteenth Amendment.

In the M eyers case, the plaintiff attacked the out- 
and-out “ grandfather clause”  o f a Maryland statute 
making one o f the tests to vote in Annapolis municipal 
elections the right o f a person or his ancestor to have 
voted prior to January 1st, 1868.

So it is plain that in those two cases, on which this 
suit is predicated, the State laws involved were openly 
and on their face discrim inatory by reason o f previous



4?

condition o f  servitude, and not attacked because o f the 
imposition o f an educational test alone.

Quite the contrary, in the last-decided case, the 
M eyers case, on page 1354 o f the Lawyers’ Edition, Chief 
Justice W hite sustains the right o f a State to impose an 
assessment test, as there so imposed by Maryland, and 
says that such a test was not susceptible o f being assailed 
because o f possibility o f its future operation in practice; 
which language, on being applied to the educational 
test, would seem to answer all o f Trudeau’s contentions 
in this case. W e quote the paragraph from  Mr. Chief 
Justice W hite’s opinion:

The first confers the right to register and 
vote free from  any distinction on account o f race 
or co lor upon all taxpayers assessed fo r  at $500. 
W e put all question o f the constitutionality o f 
this standard out o f view as it contains no express 
discrimination repugnant to the 15th amendment, 
and it is not susceptible o f being assailed on ac­
count o f an alleged wrongful motive on the part 
o f the lawmaker or the m ere possibilities o f its 
future operation in practice, and because, as 
there is a reason other than discrimination on 
account o f race or color discernible upon which 
the standard may rest, there is no room  fo r  the 
conclusion that it must be assumed, because o f 
the impossibility o f finding any other reason 
fo r  its enactment, to rest alone upon a purpose 
to violate the 15th Amendment.

It seems most obvious and almost beyond discus­
sion to us that from  everything which has been written 
on the subject, just as stated by Mr. Chief Justice W hite 
in the foregoing, a State cannot be controlled regarding



43

suffrage requirements as long as those requirements are 
im posed impartially on all persons, and there is not a 
w ord in the Louisiana laws making any distinction be­
cause o f race, color or previous condition o f servitude.

W e might, therefore, summarize at this point by 
saying that plaintiff’s first alternative cause o f action, 
based on the alleged invalidity per se o f Section 1 o f Ar­
ticle VIII o f the Louisiana Constitution o f  1921, is ut­
terly destroyed by our exception o f no right or cause o f 
action under the language o f  Mr. Chief Justice W hite in 
the very case most relied on by Trudeau. W e respect­
fully submit that your Honor should sustain our said 
exception to said first alternative contention o f plaintiff.

As to the second alternative contention, that the 
“ understanding clause”  in Louisiana, though valid on 
its face, affords opportunity for  impartial application, 
we have already shown that Trudeau cannot stay in 
court on this point unless he pleads com pliance with 
said valid law, in spite o f which com pliance he has been 
so dealt with impartially. This he has failed to plead, 
as his averment that he “ sought to explain”  the mean­
ing o f the constitutional clause submitted to him does not 
fu lfill the requirement o f the constitution.

However, we can still show that, even if we waive 
Trudeau’s insufficiency o f pleading o f facts in this p a r­
ticular, his contention o f  possible discrim inatory opera­
tion o f  this suffrage law does not constitute a cause or 
right o f action to him.

The two leading cases on the point in the Supreme 
Court o f the United States are W illiam s vs. Mississippi,



44

170 U. S. 213, 42 Law. Ed. 1012 (1898), and Yick W o  vs. 
Hopkins, 118 U. S. 366, 30 Law. Ed. 225 (1886).

In the W illiams case, the grand jury which indicted 
W illiam s was attacked on the ground that to be a juror 
one must be an elector, and that the rights o f negroes 
to be electors were abridged. Plaintiff in error did not 
contend that either the constitution or laws o f the State 
discriminated in terms against the negro race, but that 
these results were effected by the powers vested in 
certain administrative officers. The applicant fo r  reg­
istration could be required to truly answer all questions 
propounded concerning his antecedents so far as they 
relate to his right to vote and as to his residence before 
his citizenship in the district; also he shall be able to 
read any section o f the constitution, or be able to un­
derstand the same when read to him, or give a reason­
able interpretation thereof.

From  the op in ion :

“ To make the possible dereliction o f  the o f­
ficers the dereliction o f the Constitution and 
laws, the remarks o f the supreme court o f the 
state are quoted by plaintiff in error as to their 
intent. The Constitution provides fo r  the pay­
ment o f a poll tax, and by a section o f  the Code 
its payment cannot be com pelled by a seizure 
and sale o f property. W e gather from  the brief 
o f  counsel that its payment is a condition o f the 
ri^ht to vote, and in a case to test whether its 
payment was or was not optional (Ratliff v. 
Beale (74 Miss. 247, 34 L.R.A. 472), 20 So. 865), 
the supreme court o f  the state said : ‘W ithin the 
field  o f permissible action under the limitations



45

imposed by the Federal Constitution, the conven­
tion swept the circle o f expedients to obstruct 
the exercise o f the franchise by the negro race.’ 
And further the court said, speaking o f the negro 
ra ce : *By reason o f its previous condition of 
servitude and dependence, this race has acquired 
or accentuated certain peculiarities o f habit, o f 
temperament, and o f character, which clearly dis­
tinguishes it, as a race, from  that o f the whites— 
a patient, docile people, hut careless, landless, 
and m igratory within narrow limits, without fore­
thought, and its criminal members given rather 
to furtive offenses than to the robust crimes o f 
the whites. Restrained by the Federal Constitu­
tion from  discriminating against the negro race 
the convention discriminated against the char­
acteristics and the offenses to which its weaker 
members were prone.’ But nothing tangible can 
be deduced from  this. If weakness were to be 
taken advantage of, it was to be done ‘within 
the field o f permissible action under the limita­
tions im posed by the Federal Constitution,’ and 
the means o f  it were the alleged characteristics 
o f  the negro race, not the administration o f  the 
law by the officers o f the state. Besides, the op­
eration o f the Constitution and laws is not lim ­
ited by their language or effects to one race. 
They reach weak and vicious black men, and 
whatever is sinister in their intention, if any­
thing, can be prevented by both races by the ex­
ertion o f that duty which voluntarily pays taxes 
and refrains from  crime.

“ It cannot be said, therefore, that the denial 
o f  the equal protection o f the laws arises pri­
m arily from  the Constitution and laws o f Missis­
sippi, nor is there any sufficient allegation o f an 
evil and discriminating administration o f them.



46

The only allegation is ‘by granting a discretion 
to the said officers, as mentioned in the several 
sections o f the Constitution o f the state, and the 
statute o f the state adopted under the said Con­
stitution, the use o f which discretion can be and 
has been used by said officers in the said W ash­
ington county to the end here com plained ol, 
to-w it: the abridgement o f the elective franchise 
o f the colored voters o f W ashington county, that 
such citizens are denied the right to be selected 
as jurors to serve in the circuit court o f  the 
county, and that the denial to them of the right 
to equal protection and benefits o f the laws o f 
the state o f Mississippi on account o f their color 
and race, resulting from  the exercise o f the dis­
cretion partial to the white citizens, is in accord­
ance with and the purpose and intent o f the 
framers o f the present Constitution o f said State.’ 

“ It will be observed that there is nothing di­
rect and definite in this allegation either as to 
means or time as affecting the proceedings 
against the accused. There is no charge against 
the officers to whom  it submitted the selection 
o f grand or petit jurors, or those who procure 
the lists o f the jurors. There is an allegation o f 
the purpose o f the convention to disfranchise 
citizens o f  the colored race, but which this we 
have no concern, unless the purpose is executed 
by the Constitution or laws or by those who ad­
minister them. If it is done in the latter way, 
how  or by what means should be shown. W e 
gather from  the statements o f the m otion that 
certain officers are invested with discretion in 
m aking up lists o f  electors, and that this discre­
tion can be and has been exercised against the 
colored race, and from  these lists jurors are se­
lected. The supreme court o f  Mississippi, how-



47

ever, decided, in a case presenting the same 
questions as the one at bar, ‘that jurors are not 
selected from  or with reference to any lists fur­
nished by such election officers.’ D ixon v. State 
(74 Miss. 278) November 9, 1896.”

Paraphrasing the foregoing paragraph, we can say 
to your Honor that there is nothing direct or definite in 
the allegations o f Trudeau’s petition regarding the al­
leged discriminatory treatment o f him. He not only 
fails to allege that he com plied with the Louisiana law, 
and despite his com pliance was discriminated against, 
but he fails to be specific and definite as to the alleged 
discrimination, so much so that we have had to plead 
an exception o f vagueness against him in the alternative.

The Supreme Court in the Williams case then goes 
on to com pare that case with its previous decision in the 
Yick W o  case, on the point o f alleged discrimination in 
the operation o f the law com plained o f :

“ W e do not think that this case is brought 
within the ruling in Yick W o v. Hopkins, Sheriff, 
118 U. S. 356, (30 : 220). In that case the ordi­
nances passed on discriminated against laun­
dries conducted in w ooden buildings. For the 
conduct o f these the consent o f the board o f 
supervisors was required, and not fo r  the con­
duct; o f  laundries in brick or stone buildings. It 
was admitted that there were about 320 laundries 
in the city and county o f  San Francisco, o f which 
240 were owned and conducted by subjects o f 
China, and o f the whole number 310 were con­
structed o f w ood, the same material that consti­
tuted nine tenths o f  the houses o f the city, and 
that the capital invested was not less than $200.00.



.48

“ It was alleged that 150 Chinamen were ar­
rested, and not one o f the persons who were con­
ducting the other eighty laundries and who were 
not Chinamen. It was also admitted ‘that peti­
tioner and 200 o f his countrymen similarly sit­
uated petitioned the board o f  supervisors for  
permission to continue their business in the va­
rious houses which they had been occupying and 
using for  laundries for m ore than twenty years, 
and such petitions were denied, and all the peti­
tions o f those who were not Chinese, with one 
exception o f Mrs. Mary Meagles, were granted.

“ The ordinances were attacked as being void 
on their face, and as being within the prohibition 
o f the 14th Amendment, but even if not so that 
they were void by reason o f their administration. 
Both contentions were sustained.

“ Mr. Justice Matthews said that the ordi­
nance drawn in question ‘does not prescribe a 
rule and conditions fo r  the regulation o f the use 
o f property fo r  laundry purposes, to which all 
sim ilarly situated m ay conform . It allows with­
out restriction the use fo r  such purposes o f build­
ings o f  brick or stone; but as to w ooden buildings, 
constituting nearly all those in previous use, it 
divides the owners or occupiers into two classes, 
not having respect to their personal character 
and qualifications fo r  the business, nor the situa­
tion and nature and adaptation o f  the buildings 
themselves, but m erely by an arbitrary line, on 
one side o f which are those who are permitted 
to pursue their industry by the mere w ill and 
consent o f the supervisors, and on the other 
those, from  whom  that consent is withheld, at 
their mere w ill and pleasure.’ The ordinances, 
therefore, were on their face repugnant to the 
14th Amendment. The court, however, went



49

further and said: ‘This conclusion, and the rea­
soning on which it is based, are deductions from  
the face o f the ordinance, as to its necessary ten­
dency and ultimate actual operation. In the 
present cases, we are not obliged to reason from  
the probable to the actual, and pass upon the 
validity o f the ordinances com plained of, as tried 
m erely by the opportunities which their terms 
afford, o f equal and unjust discrimination in 
their administration. For the cases present the 
ordinances in actual operation, and the facts 
shown establish an administration directed so 
exclusively against a particular class o f persons 
as to warrant and require the conclusion that, 
whatever may have been the intent o f the ordi­
nances 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 o f that equal protec­
tion o f the laws which is secured to the petition­
ers, as to all other persons, by the broad and 
benign provisions o f the 14th Amendment to the 
Constitution o f the United States. Though the 
law itself be fair on its face and impartial in ap­
pearance, yet, if it is applied and administered 
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 
o f equal justice is still within the prohibition o f 
the Constitution. This principle o f interpreta­
tion has been sanctioned in Henderson v. Mayor 
of N ew York  (Henderson v. W ickham ), 92 U. S. 
259 (23:543); Chy Lung v. Freem an, 92 U. S. 275 
(23:550); E x parte Virginia, 100 U. S. 339 (25: 
676); Neal v. Delaware, 103 U. S. 370 (26:567);



50

and Soon Hing v. Crowley, 113 U. S. 703 (28: 
1145).”

“ This comment is not applicable to the Con­
stitution o f Mississippi and its statutes. They do 
not on their face discriminate between the races, 
and it has not been shown that their actual ad­
ministration was evil, only that evil was possible 
under them.

“ It follows, therefore, that the judgm ent must 
be affirm ed.”

W hile the United States Supreme Court in this W il- 
liams case upheld the validity, as not discriminatory 
either on its face or in the demonstrated operation, o f  
the Mississippi statute involved, nevertheless the opinion 
o f the Court in its discussion o f possible discrimination 
in operation o f a statute, without defining what such 
discrimination may consist o f is rather vague and pos­
sibly misleading.

However, the opinion, while contrary to the facts, 
relies largely for  its reasoning on the Yick W o  case, and 
fortunately in the Yick W o  case we have a clear cut 
expression o f what legal discrimination must contem ­
plate and embrace.

In that case, very briefly stated, a laundry-owner in 
a brick  building was not molested, but a laundry-owner 
(Chinese) in a w ooden building had to apply to the ar­
bitrary and final decision o f a m unicipal board fo r  per­
mission to do business. Said the United States Supreme 
C ourt:

“ W e are consequently constrained, at the 
outset to d iffer from  the Supreme Court o f  Cali­
fornia upon the real meaning o f  the ordinances



51

in question. That Court considered these ordi­
nances as vesting in the board o f  supervisors a 
not unusual discretion in granting or w ithhold­
ing their assent to the use o f  w ooden buildings 
as laundries, to be exercised in reference to the 
circumstances o f each case, with a view to the 
protection o f the public against the dangers o f 
fire. W e are not able to concur in that inter­
pretation o f  the pow er conferred upon the su­
pervisors. There is nothing in the ordinances 
which points to such a regulation o f the business 
o f  keeping and conducting laundries. They seem 
intended to confer, and actually do confer, not a 
discretion to be exercised upon a consideration 
o f  the circumstances o f each case, but a naked 
and arbitrary pow er to give or withhold consent, 
not only as to places, but as to persons. So that, 
if  an applicant fo r  such consent, being in every 
way a competent and qualified person, and hav­
ing com plied with every reasonable condition de­
manded by any public interest, should, failing 
to obtain the requisite consent o f  the supervisors 
to the prosecution o f his business, apply for re­
dress by the judicial process o f mandamus to 
require the supervisors to consider and act upon 
his case, it w ould be a sufficient answer fo r  them 
to say that the law had conferred upon them 
authority to withhold their assent, without rea­
son and without responsibility. The pow er given 
to them is not confided to their discretion in the 
legal sense o f that term, but is granted to their 
mere will. It is purely arbitrary, and acknowl­
edges neither guidance nor restraint.”

So that reading these two leading cases on the sub­
ject together, we think we may fairly conclude that, at 
the very worst, Mr. Barnes’ position under Louisiana



52

law vests in him certain inquisitorial functions and 
subordinate right o f  decision to enroll a voter, the exer­
cise o f a responsible discretion which is subject to con­
trol by review. Those functions by him, as provided 
for by the law, which also provides fo r  the restraint 
and guidance that the Supreme Court pointed out was 
not imposed on the San Francisco Board, cannot strike 
down Louisiana’s suffrage law as a nullity because o f 
such eventually harmless pow er in Mr. Barnes o f re­
versible discrimination.

All law depends upon the human equation in some 
stage or degree, and because human beings are not in­
fallible, we have courts o f graduated authority to insure 
the nearest approach possible to real justice. So long 
as human fallibility is safeguarded to make injustice 
or oppression difficult by depending on concert o f va­
rious authorities, one controlling the other, a law cannot 
be said to be partial because, while impartial in its text, 
partiality may in some manner becom e possible. That 
possibility exists under all laws.

Section 1 o f Article VIII o f Louisiana’s constitution 
is fully and adequately safeguarded by Section 5 there­
o f from  any possibility, great enough to be regarded 
in a legal sense as a possibility, o f discrim inatory appli­
cation by any registrar o f voters.

CONCLUSION.

W e then concluded our brief in the lower court 
by urging Judge Borah to maintain our exceptions, 
chiefly our exception o f  no right or cause o f action, 
which he did maintain.



53

Of course, since the foregoing brief was written, 
we know that the decision o f  your Honors in the Nixon  
v. Condon case has, by a five to four decision of the 
United States Supreme Court, been reversed, and the 
case remanded. However, our purpose in mentioning 
the decision o f your Honors in that case was merely in 
support o f our contention that a State has the power to 
fix  its own suffrage qualifications, and can apply such 
test as it may desire, provided there be no discrimina­
tion because o f race, color or previous condition o f 
servitude. The effect o f the Supreme Court’s five-to- 
four decision in Nixon v. Condon was merely to hold 
that the execution committee o f a political party, set­
ting up prim ary election methods, was sufficiently an 
agency o f the State to com e within the restraint upon 
the status o f the Fourteenth Amendment.

In the case at bar, Registrar Barnes is unquestion­
ably a State officer, as we already pointed out in men­
tioning Nixon v. Condon.

W e have examined our learned opponent’s brief 
very carefully, seeking something in it requiring answer, 
over and beyond what we have already said in the 
foregoing pages. However, we find that the gentleman 
has offered, in our opinion, nothing new or what has 
not already been said below and replied to by us.

He quotes the same expressions from  the same de­
cisions, the Williams case, the Anderson  case, the Guinn 
case, and the Yick W o  case, for  instance, but continues 
to close his eyes to the fact that in every one o f these 
cases the eventual holding o f the Court was against his 
present legal position.



54

His brief contains such fallacious arguments, as, for 
instance, follow s (appellant’s brief, page 26) :

“ How like the pow er committed to the Regis­
trar o f Voters o f Louisiana. W ith no definition 
o f their powers, no prescription as to applica­
tion NO LIMITS TO POW ER TO GIVE OR TO 
W ITHHOLD THE RIGHT TO A VOICE IN GOV­
ERNMENT, the Louisiana statute says the Regis­
trar may make voters W H ERE HE W ILL, and 
withhold W H ERE HE DESIRES, without LIMIT, 
RULE, OR GUIDANCE” (Capitals ours.)

Opposing counsel must well know that what he 
says in the foregoing paragraph is purely imagination. 
He is thoroughly fam iliar with the registration law and 
knows that the Registrar is most effectively controlled, 
on behalf o f white people and black people, against 
any such abuse o f power. He surely knows that before 
nearly every contested election the Registrar is forced 
by court action to register white men whose qualifica­
tions he has disputed. And your Honors know that if 
a negro possesses the qualifications which this State 
has chosen to impose on all registrants alike and he is 
denied the right to register in this city, any one o f 
those five judges in the Civil District Court is going to 
see that he gets a square deal, and no twelve citizens o f 
the type who are drawn as jurors in that court are going 
to take an oath before the Almighty to fairly and 
justly try the issue, and then be false to that oath 
just to keep Antoine Trudeau or anybody else o ff 
the rolls if he is actually entitled to be thereon. As 
a matter o f fact, jurors in such cases are notably more 
liberal-m inded than the administrative officers, and



55

often stretch the law to cover the man, on the principle, 
perhaps, that “what difference does one more vote 
m ake?”

The whole truth about this case is that Antoine Tru­
deau, endeavoring to make himself in Louisiana what 
the negro Jsixon has becom e in Texas, a sort o f political 
trail-blazer o f his race, is simply trying to hump his 
head through the Louisiana franchise wall, pretending 
that he cannot see the wide, open gate which he and 
all other men and women can walk erectly through if 
so entitled under Louisiana’s law, which is not a dis­
crim inatory law either in terms or operation.

Just as opposing counsel argues that the fact that 
a greater proportion o f  the negro population is not on 
the registration rolls indicates a discrimination, we 
answer that his admission that any negroes are on those 
rolls shows this is not so. Your Honors know that 
the poll-tax illiteracy, natural lack o f interest in public 
affairs, the obstacle o f general public prejudice against 
their participation, and many other things perhaps, have 
discouraged the general mass o f negroes from  manifest­
ing interest in the ballot. A city registrar like Mr. 
Barnes, and a court administration over him like that 
o f the Civil District Court, do not lend themselves to 
a petty exclusion, as against a man like Trudeau says 
he is. There are plenty like Trudeau on the rolls. He 
can get on if he wants, and without great difficulty, and 
he knows it. But he cannot do so by refusing to answer 
questions that Mr. Barnes can ask any man, white or 
black, and does ask, very often, o f  both whites and 
blacks.



■56

After Trudeau answers the questions, if Mr. Barnes 
has questioned him unfairly, or rules wrongfully, do 
your Honors believe that Trudeau can not get justice in 
the Civil District Court?

Trudeau does not want to register so much as he 
wants to win a law-suit.

So he charges Mr. Barnes in his petition with the 
alleged sins o f all o f  the registrars o f Louisiana under 
a claimed illegal political system for  which Mr. Barnes 
was never responsible, and tries to take in Louisiana’s 
historical development since the Civil W ar and the 
sum total o f her census, and make Mr. Barnes, at his 
own expense, defend such an almost limitless issue.

This would not be justice to Mr. Barnes, and plain­
tiff ’s suit should be restricted within proper bounds, or, 
preferably, disposed o f entirely as it was disposed o f 
by the District Judge.

Respectfully submitted,

HUGH M. WILKINSON,
A ttorney fo r  Appellee.



United States C ircuit Court o f Appeals
F IF T H  CIR C U IT

No. 6828

A N T O IN E  M. TR U D E A U , 

versus
Appellant,

C H A R L E S  S. B A R N E S,
Appellee.

Appeal from  the United States District Court fo r  the 
Eastern District o f  Louisiana. Hon. W ayne G. 

Borah, Judge.

B R IE F ON B E H ALF OF A. M. TRUDEAU, PLA IN T IF F  
AND APPELLAN T.

H. W . ROBINSON,
Attorney fo r  Appellant.

H A U S E R  P R I N T I N G  C O . .  N E W  O R L E A N S





SUBJECT INDEX
PAGE

Statement o f  Case______________________________   4

Assignment o f Errors____________________  J2

Argument _________________________________  jg

CASE INDEX
Act 116 o f 1928, amending Act 271 o f  1908__________ 10
Alabama Constitution o f 1901, Article 8 Sec. 187.__  17
Baltimore v. Radecke, 49 Maryland 217_____________  25
Constitution o f  Louisiana, 1921 Article 8, Subsections

c and d o f Section 1_____________________________ 2, 7
Chy Lung v. Freeman, 92 U. S. 275__________________  23
Ex Parte Virginia, 100 U. S. 339______________________  23
Eighth U. S. Code Annotated, Section 43___________  2
Georgia Constitution o f 1924, Article 2, Section 1_ .  16
Guinn & Beal v. U. S., 238 U. S. 347_________________2, 19
Henderson v. Mayor o f  New York, 92 U. S. 259____  23
Meyers v. Anderson, 238 U. S. 368___________________ 2, 20
Mississippi Code o f  1930, Section 6207_____________  17
Mississippi Constitution o f 1890, Article 12, Section

244 ------------------------------------------------------------------------  Yi
Neal v. Delaware, 103 U. S. 370_____________________  23
North Carolina, Act 6 o f 1920, Chapter 97__________  15
Soon Hing v. Crowley, 113 U. S. 703__________________  23
South Carolina Constitution o f 1895, Section 4____  15
U. S. Code Annotated, Section 43__________________  5
U. S. Revised Statutes, Section 1979_______________  2
W illiam s v. Mississippi, 170 U. S. 213__________21, 22, 24
Yick W o  v. Hopkins, 118 U. S. 356 (370)____ 4, 24, 26, 27



f



United States Circuit Court o f Appeals
F IF T H  CIR C U IT

No. 6828

A N T O IN E  M. T R U D E A U ,

versus
Appellant,

C H A R L E S S. B A R N E S,
Appellee.

Appeal from the United States District Court for the 
Eastern District of Louisiana. Won. Wayne G. 

Borah, Judge.

BRIEF ON BEHALF OF A. M. TRUDEAU, PLAINTIFF 
AND APPELLANT.

SYLLABUS.

I.
A petition which charges that plaintiff, a colored man, 

was denied the right to register to vote by de­
fendant, a registrar o f voters, because o f  the 
provisions o f Subsections c  and d, Section 1,



2

Article 8 o f the Constitution o f the State o f 
Louisiana, o f 1921, containing “ the under­
standing clause,”  which is charged was the 
substitute for  the form er “ grandfather clause”  
alleged to be intended to discriminate against 

'■'f him because o f  his race and color, and to be 
contrary to the 14th and 15th amendments o f 
the Federal Constitution, and demanding 
damages therefor, presented a cause o f action, 
and its dismissal on an exception o f  no cause 
o f action was erroneous. Guinn & Beal us. 
United States, 238 U. S. 347; M eyers vs. An­
derson, 238 U. S. 368; R. S. U. S. 1979; 8th 
U. S. Code Annotated, Section 43.

II.
A petition which charges that plaintiff was denied reg­

istration as a voter by defendant and asking 
damages therefor, and alleging that the afore­
said provisions o f the Louisiana Constitution 
im poses an arbitrary, unreasonable, and ca­
pricious qualification upon the right o f  the 
plaintiff to register and vote; and confer an 
unlimited, unguided, and arbitrary pow er on 
the Registrar o f Voters and his deputies, to 
refuse him registration, and were so used 
because he is a negro, was, therefore, uncon­
stitutional and contrary to the 14th and 15th 
Amendments, presented a cause o f action, 
and its dismissal on exception was errone­
ous. Guinn & Beal vs. United States, 238 U. S. 
347; M eyers vs. Anderson, 238 U. S. 368.



3

A petition which alleged that plaintiff was refused reg­
istration as a voter, solely because o f the 
“ understanding clause”  o f the Louisiana Con­
stitution, was not exceptional fo r  vagueness 
because it did not specifically allege: (a) that 
he was a resident o f the precinct in which 
he offered to register; (b) that he under­
stands the duties and obligations o f citizen­
ship under a republican form  o f government; 
(c) that he has made under oath administered 
by the registration officer, application fo r  
registration which contained the essential 
facts necessary to show that he was entitled 
to register and vote, which application was 
entirely written, dated, and signed by him, 
in the presence o f the registration officer, 
without assistance or suggestion from  any 
person, or any m em orandum  whatever other 
than the form  o f the application; (d) that he 
is able to read any clause in the Constitution 
o f  the State o f Louisiana, or o f the United 
States, and give a reasonable interpretation 
o f  the clause actually indicated to him by the 
defendant, when he applied fo r  registration; 
his petition having recited that he duly and 
correctly filled the blank application for  reg­
istration; that he has always borne a good 
reputation, has never been arrested or charged 
with any offense, had a gram m ar school and 
business college education, was a resident o f 
the city fo r  m ore than twenty years, and

III.



4

from  September 13, 1927, to Decem ber 31, 
1930, was a registered voter, and voted in 
practically all Federal, State and City elec­
tions during that period; the petition show­
ing in ample detail that he was refused reg­
istration solely and only because the Regis­
trar claimed he did not “ understand”  the 
clause o f  the Constitution submitted to him.

IV.
“For the very idea that one man may be com pelled to 

hold his life, or the means o f living, or any 
material right essential to the enjoym ent o f 
life, at the mere will o f another, seems to he 
intolerable in any country where freedom  
prevails, as being the essence o f slavery it­
self.”

Yick W o v. Hopkins, 118 U. S. 370.

“ Can a Court be blind to what must be necessarily 
known to every intelligent person in the 
State?” Idem. Argument for  Plaintiff in 
Error, page 363.

STATEM ENT OF THE CASE.

Antoine M. Trudeau, plaintiff and appellant, a col­
ored man, sued Charles S. Barnes, Registrar o f  Voters 
fo r  the Parish o f Orleans, in the District Court o f  the 
United States for  the Eastern District o f Louisiana fo r  
$5000.00 damages, fo r  illegally discriminating against 
him because o f his race and color, by denying him reg­
istration as a voter on June 18, 1931, acting under color



5

of the “ understanding clause”  o f  the suffrage provision 
o f  the Louisiana Constitution of 1921.

The suit was brought under authority o f Title 8 , 
Section 43, U. S. Code Annotated, which reads:

“Every person who, under color o f any stat­
ute, ordinance, regulation, custom, or usage, o f 
any State or Territory, subjects, or causes to be 
subjected, any citizen o f the United States or 
other person within the jurisdiction thereof to 
the deprivation o f any rights, privileges, or im­
munities secured by the Constitution and laws, 
shall be liable to the party injured in an action 
at law, suit in equity, or other proper proceed­
ing fo r  redress.”

Jurisdiction was conferred by Paragraph 14, Section 
41, Title 28, which reads:

“ Of all suits at law or in equity authorized 
by law to be brought by any person to redress 
the deprivation, under color o f any law, statute, 
ordinance, regulation, custom, or usage, o f  any 
State, o f any right, privilege, or immunity, se­
cured by the Constitution o f the United States, or 
o f any right secured by any law o f the United
States providing for  equal rights o f citizens o f
the United States, or o f all persons within the 
jurisdiction o f the United States.”

The petition recited that plaintiff is a member o f 
the colored or negro race, was born in Louisiana in 
1890, has always resided there, was fo r  twenty years 
prior to his application to register, a resident o f New
Orleans, and for  four years prior to Decem ber 31, 1930,



6

was a registered voter in that city, and voted in prac­
tically all elections.

On June 18, 1931, he applied to defendant, the duly 
com m issioned Registrar o f  Voters for New Orleans, 
was furnished with the registration blank form , which 
he duly and correctly filled out, in his own writing, 
giving his name, place and date o f birth, age, ward, resi­
dence, and all the data required thereon, and returned 
the form  to the defendant, who then demanded that 
he read the “ understanding clause” ; which is as fo llow s:

“ Said applicant shall also be able to read 
any clause in this Constitution, or the Constitu­
tion o f the United States, and give a reasonable 
interpretation thereof” ;

and that he explain the meaning o f the paragraph. That 
plaintiff correctly read the said section, and sought to 
explain its meaning, but the said defendant arbitrarily 
declared that plaintiff had not perfectly understood and 
explained the meaning thereof, and refused your peti­
tioner the right to register.

In Louisiana registration is an essential prerequisite 
fo r  voting, and new registration is required every four 
years.

The petition declared that plaintiff had a public 
school and business college education, that he reads 
and writes English fluently, is m anager o f a life insur­
ance com pany, has always borne a good reputation, and 
was in every way qualified to vote. That defendant 
based his refusal to register plaintiff solely and entirely 
upon the so-called “ understanding clause contained in



7

Subsection (c) o f Section 1 o f Article VIII o f the Con­
stitution o f the State o f Louisiana adopted in the city 
o f Baton Rouge on June 18, 1921. The said Section 1 
reads as follow s:

“ After January 1, 1922, the right to vote in 
Louisiana shall not exist except under the provi­
sions o f this Constitution.

“ Every citizen o f this State and o f the United 
States, native born or naturalized, not less than 
twenty-one years o f age, and possessing the fo l­
lowing qualifications, shall be an elector, and 
shall be entitled to vote at any election in the 
State by the people:

“ (a) He shall have been an actual bona fide 
resident o f  the State fo r  two years, o f  the parish 
one year, o f  the m unicipality in municipal elec­
tions fou r months, and o f the precinct, in which 
he offers to vote, three months next preceding 
the election; provided, that rem oval from  one 
precinct to another in the same parish shall not 
operate to deprive any person o f the right to 
vote in the precinct from  which he has rem oved 
until three months after such rem oval; provided, 
that rem oval from  one parish to another shall 
not deprive any person o f the right to vote in the 
parish from  which he has rem oved fo r  district 
officers to he elected in a district which includes 
the parish to which he has rem oved, or fo r  State 
officers, whether the parish be in the same dis­
trict or not, until he shall have acquired the right 
to vote fo r  such officers in the parish to which 
he has rem oved.

“ (b) He shall be, at the time he offers to 
vote, legally enrolled as a registered voter on his 
own personal application, in accordance with



8

the provisions o f this Constitution, and the laws 
enacted thereunder.

“ (c) He shall be o f good character and shall 
understand the duties and obligations o f  citizen­
ship under a republican form  o f  government. 
He shall be able to read and write, and shall 
demonstrate his ability to do so when he applies 
fo r  registration by making, under oath, admin­
istered by the registration o fficer or his deputy, 
written application therefor, in the English lan­
guage, or his m other tongue, which application 
shall contain the essential facts necessary to show 
that he is entitled to register and vote, and shall 
be entirely written, dated, and signed by him, 
except that he m ay date, fill out, and sign the 
blank application fo r  registration hereinafter pro­
vided for, and, in either case, in the presence o f 
the registration officer or his deputy, without 
assistance or suggestion from  any person or any 
mem orandum  whatever, other than the form  o f 
application hereinafter set forth ; provided, how­
ever, that, i f  the applicant be unable to write his 
application in the English language, he shall 
have the right, if  he so demands, to write the 
same in his mother tongue from  the dictation o f 
an interpreter; and, if  the applicant is unable 
to write his application by reason o f physical 
disability, the same shall be written at his dic­
tation by the registration o fficer  or his deputy, 
upon his oath o f  such disability.

“ Until and unless otherwise provided by law, 
the application fo r  registration above provided 
fo r  shall be a copy o f the follow ing form , with 
the proper names, dates, and numbers substi­
tuted fo r  the blanks appearing therein, to-w it: 

“  ‘I am a citizen o f  the State o f Louisiana.
My name is Mr_____________ , Mrs____________,



9

Miss------------------------- I was born in the State
(or country) of.------------------Parish (or county)
of.-----------------------------  on the__________day o f
--------------------------in the year_______ I am now
--------------------- ..—.y e a r s ____ ________months and
---------------- days o f age. I have resided in this
State since------------------------» in this parish since
------------------------------ and in Precinct N o_________
W ard N o------------ since____________________ t and
I am not disfranchised by any provision o f 
the Constitution o f this State.’
“ Said applicant shall also be able to read 

any clause in this Constitution, or the Constitu­
tion o f the United States, and give a reasonable 
interpretation thereof.

“ (d ) If he is not able to read or write, then 
he shall be entitled to register if he shall he a 
person o f good character and reputation, at­
tached to the principles o f the Constitution o f 
the United States and o f the State o f  Louisiana, 
and shall be able to understand and give a rea­
sonable interpretation o f any section o f either 
Constitution when read to him by the registrar, 
and he must be well disposed to the good order 
and happiness o f the State o f Louisiana and o f 
the United States and must understand the duties 
and obligations o f citizenship under a republican 
form  o f  government.

“ (e) He must in all cases be able to estab­
lish that he is the identical person whom he rep­
resents him self to be when applying for  registra­
tion, and when presenting himself at the polls 
for the purpose o f voting in any election or pri­
mary election.”

The petition charged that the Louisiana “ under­
standing clause”  was enacted solely to prevent negro



10

residents o f the State, otherwise qualified to vote, from  
registering and depriving them solely on account o f 
their race and color o f  the right to vote at all Federal, 
State and local elections. The clause was a device in­
vented as a substitute fo r  the “ grandfather clause”  o f 
the Louisiana Constitution o f 1898, which was intended 
to exclude from  the suffrage all illiterate negroes while 
granting it to illiterate whites. This clause was nulli­
fied by the decisions in the 238 United States Supreme 
Court Reports, decided in 1915.

Plaintiff charged that defendant utilized this clause 
to deprive him and large numbers o f other negro citizens 
from  registering as voters solely because o f their race 
and color. He annexed tables showing the white and 
negro population o f Louisiana, by parishes, and paral­
lel figures showing the registration o f voters. These 
showed 1,283,250 native whites, and 776,326 negroes. Of 
these there were registered in 1930, 233,241 literate 
whites, and 1669 literate negroes, 17,778 illiterate whites 
and 7 illiterate negroes.

It was alleged that the “ understanding clause”  was 
unconstitutional because contrary to the 14th Amendment 
o f the Federal Constitution, in that it deprived him and 
other negro citizens o f life, liberty and property with­
out due process o f law, and denied him and them of the 
equal protection o f the laws; and that it was contrary 
to the 15th Amendment, because it denied him and 
them the right to register and vote, because o f their 
race and color.

The petition cited as an instance o f  property rights 
affected that Act 116 o f 1928, amending Act 271 o f  1908,



11

o f the State o f Louisiana, limited the employment on 
all public w ork in Louisiana to duly qualified voters 
o f  the State.

The petition instanced as an example o f defendant’s 
arbitrary and discriminatory enforcem ent o f the suf­
frage law, that in the First Precinct o f  the Fifth W ard o f  
New Orleans, com posed almost entirely o f foreigners 
and children o f  foreign-born parents, few  o f whom  
speak, read and write English, over 200 voters are reg­
istered.

For a second cause o f  action, plaintiff reiterated 
the recitals o f  his petition, and charged that the suffrage 
clauses com plained o f imposed an arbitrary, unreason­
able, and capricious qualification upon the right o f 
plaintiff and other citizens o f Louisiana to register and 
vote; and conferred upon defendant an unlimited, un­
guided, and arbitrary pow er to refuse him and them 
the right to register and to deprive them at will o f the 
right to vote; and was used by defendant solely as a 
cloak to deprive him o f the right to vote because o f his 
race and color.

Defendant filed exceptions o f  prematurity, imma­
teriality, impertinence o f pleading, vagueness, and no 
cause o f  action. He asked under his exception o f im ­
pertinence that there be stricken Article 8 , which 
charged that the “ understanding clause”  enacted in 1921, 
was a device to exclude negroes from  the ballot, because 
o f the 1915 decision annulling the grandfather clause in 
the 1898 Constitution; the 10th and 11th articles recit­
ing the population and vote registration o f  Louisiana, 
Article 15, that defendant registered over 200 persons



12

in the First Precinct o f the Fifth W ard, m any o f whom 
were unable to read, write, or speak English; and part 
o f Article 19, which charged that defendant and other 
registrars o f voters o f Louisiana, used the understand­
ing clause to deprive large numbers o f negro citizens o f 
the right to vote.

The exception o f vagueness was leveled at the fa il­
ure o f the petition to give the names o f  the large num ­
ber o f negro citizens who had been deprived o f regis­
tration, and the names of those who deprived them. It 
likewise demanded the names o f  the voters o f the First 
Precinct o f the Fifth W ard, who had been im properly 
registered by defendant.

The case was argued on the exceptions o f defend­
ant. The district judge in a written opinion (Tr. 24) 
maintained the exception o f no cause o f action, and 
plaintiff appealed.

ASSIGNMENT OF ERRORS.

The assigned errors in the opinion and decree o f 
the district judge were that he failed to hold the under­
standing clause in the suffrage article o f the Louisiana 
Constitution contrary to the 14th and 15th Amendments; 
that he failed to hold that the understanding clause was 
historically the successor and substitute o f the grand­
father clause, and like it intended to discriminate against 
negro citizens solely on account o f race and co lor , and 
that he failed to hold that the understanding clause 
was arbitrary and discrim inatory because o f race and 
color, and contrary to the 14th and 15th Amendments.



13

ARGUMENT.

The petition in this case was drawn with the tran­
script in Anderson vs. Myers, before the writer.

A  certified copy o f  the record in the Circuit Court 
fo r  the District o f Maryland disclosed that the suit was 
filed on July 30, 1909, about six weeks after the plain­
tiff had applied fo r  and was refused registration. In 
that brief period no election was charged to have been 
held, and the damages were demanded not because the 
plaintiff had been denied the right to vote, but that he 
had been denied the right to register and qualify to 
vote. The pleadings in that case having been approved 
by the Supreme Court o f the United States it would 
seem that this is the most effectual answer to the plea 
o f the defendant that in the instant case plaintiff’s suit 
was premature, because no elections took place between 
the time o f  refusal o f registration and the date o f the 
filing suit.

The opinion o f the district judge criticizes the lit­
erary quality o f plaintiff’s petition in several respects, 
m ore particularly in that plaintiff alleged that he was 
a duly and legally qualified citizen and voter, and that 
he duly and properly filled out the written application 
for registration without giving the precise words with 
which he filled the blanks. Especially he criticized the 
petition because the plaintiff did not plead that he had 
correctly interpreted the article o f the Constitution sub­
mitted to him fo r  understanding nor recite the precise 
words with which he gave his interpretation; but the 
district judge did not maintain any o f  the exceptions 
except that o f no cause o f action; and the constitution­



14

ality o f the “ understanding clause”  is the real and only 
question at issue.

Before we pass to the discussion o f the m ajor ques­
tion we desire to say that we specifically charged in our 
petition that the only reason why we were refused reg­
istration was because o f  the “ understanding clause”  
and that was the only element as to qualification o f the 
plaintiff which was tendered by the suit. As to the 
m anner in which he interpreted the article o f  the Con­
stitution submitted to us we submit that our pleading 
is the only logical and correct one. Had we pleaded 
that we clearly interpreted the article, and fo r  that rea­
son we were entitled to registration, we w ould be 
pleading the legality and constitutionality o f  the “ under­
standing clause”  and asking fo r  its protection. Of 
course, the very opposite was our purpose. W e plead­
ed and charged that the “ understanding clause”  was 
w holly contrary to the Federal Constitution, that the 
Registrar o f  Voters had no right to dem and o f  us com ­
pliance with the “ understanding clause” ; that his en­
forcem ent o f  the Louisiana Constitution in this respect 
was oppressive, arbitrary, and illegal, and this being 
our position, it was, o f  course, unnecessary that we 
should plead the exact language in which we sought to 
interpret the article o f  the Constitution.

The interpretation o f the Constitution by the Regis­
trars o f  Voters in Louisiana is that they have the au­
thority to give the understanding test or to w ithhold it, 
and that the Constitution gives them this discretion. In 
other words, the deputy registrar o f voters, who is usual­
ly a man o f  very m ediocre civic status and o f parallel



15

education, does not ask the justice o f the Supreme 
Court o f Louisiana nor the members o f the bar, nor, in 
fact, anyone o f the proper race and color, to interpret 
the Constitution; and the interpretation o f  the Consti­
tution by the Registrars is that they have the right to 
require the applicant to interpet the article o f  the Con­
stitution or not just as they see fit.

UNCONSTITUTIONALITY OF THE UNDERSTAND­
ING CLAUSE.

In the last decade o f  the nineteenth century, the in­
ventive minds o f the South turned toward the develop­
ment o f a suffrage law which would disfranchise all 
negroes, both literate and illiterate, yet retain the right 
to vote in both classes o f whites.

The 15th Amendment made direct discrimination 
unconstitutional.

Tw o projects were o ffered : The so-called “ grand­
father clause”  and the “ understanding clause.”

Louisiana, in its Constitution o f 1898, adopted the 
form er. In 1915 the Oklahoma and Maryland laws, em ­
bracing the “ grandfather clause”  were declared null.

North Carolina, Chapter 97, Act 6 o f 1920, Consoli­
dated Statutes, retains the “ grandfather clause”  as to il­
literate voters, but the “ understanding clause”  has not 
been adopted.

South Carolina, 1895 Constitution, Section 4, con­
tains the understanding clause, effective only until 
January 1, 1898. This declaration is as fo llow s:



16

“ (c) Qualification for Registration up to 
January 1898, Test o f Registered Voters. ‘Up to 
January 1, 1898, all male persons o f voting age 
applying fo r  registration who can read any sec­
tion o f this Constitution submitted to them by 
the registration officer, or understand and ex­
plain it when read to them by the registration 
officer, shall be entitled to register and becom e 
electors. A  separate record, etc.’

“ (d) Qualification for  registration after Jan­
uary, 1898. Any person who shall apply for  reg­
istration after January first, 1898, if otherwise 
qualified, shall be registered; PROVIDED, that 
he can both read and write any Section o f  this 
Constitution submitted to him by the registra­
tion o fficer or can show that he owns and has 
paid all taxes collectible during the previous 
year on property in this State assessed at $300.00 
or m ore.”

In Georgia: Article 2, Section 1 et seq. o f the Con­
stitution o f  1924, and Code Sections 6395 et seq. adopted 
the understanding clause in the follow ing term s:

“ 2. All persons lawfully descended from  
those em braced in the classes enumerated in the 
subdivision next above; or

“ 3. All persons who are o f  good character 
and understand the duties and obligations o f citi­
zenship under a republican form  o f governm ent; 
or

“ 4. All persons who can correctly read in 
the English language any paragraph o f the Con­
stitution o f the United States or o f  this State and 
correctly write the same in the English language 
when read to them by any one o f  the registrars, 
and all persons who solely because o f physical



17

disability are unable to com ply with the above 
requirements but who can understand and give 
a reasonable interpretation o f  any paragraph o f 
the Constitution o f  the United States or o f this 
State that m ay be read to them by any one o f 
the registrars.”

ALABAM A: The Constitution o f 1901, Article 8, 
Section 187, provided, unless disqualified under this ar­
ticle, persons registering before January 1, 1903, shall 
remain electors fo r  life and shall not be required to 
register again unless they change their residence. The 
understanding clause was not adopted.

MISSISSIPPI: The Constitution o f  1890, Article 12, 
Section 244, adopted the understanding clause by  these 
provisions:

‘ ‘On and after January 1, 1892, every elector 
shall in addition to the foregoing qualifications, 
be able to read and write any section o f the 
Constitution o f this State; or he shall be able to 
understand the same when read to him, or give 
a reasonable interpretation thereof.”

And Section 6207 o f the Mississippi Code o f 1930, 
also limits suffrage to those who “ read”  or i f  unable 
to read, understand or give a reasonable interpretation, 
etc.

FLORIDA, ARKANSAS, TENNESSEE and TEXAS 
have no understanding qualification.

The Louisiana understanding clause differs from  
all the others we have examined, in that it prescribes 
as a mandatory requirement that the applicant for



18

registration, in addition to being able to read and write 
“ shall also be able to read any clause o f this Constitu­
tion, or the Constitution o f the United States, and give 
a reasonable interpretation thereof;”  or if he is illiterate, 
he “ shall be able to understand and give a reasonable 
interpretation o f any section o f  either Constitution when 
read to him by the Registrar.”

Plaintiff has pleaded that he reads and writes flu ­
ently, that he was registered during the four year period 
just prior to the year in which he was refused registra­
tion, and, accordingly, he is legally qualified to register 
and vote under the present laws o f Louisiana, if  the 
understanding clause is eliminated.

That the “ understanding clause”  has just the effect 
intended at the time o f its enactment, he shows by tabu­
lating in Article X  o f  his petition, the white and negro 
population, by parishes, o f Louisiana, and the white and 
negro registrants. Thus o f a total o f 1,318,170 native and 
foreign born whites in Louisiana, in 1930, there were 
248,261 male and 113,630 fem ale registered white voters; 
and o f  776,326 negro population, 1,954 male, and 325 
fem ale registrants. Of these 17,778 whites and 7 negroes 
signed by mark. Mathematically .274 white voters, 
.000293 negro voters per population— 274 out o f  a thou­
sand whites, 3 out o f  a thousand negroes.

The “ understanding clause”  enables the registrar, 
notwithstanding it is mandatory, to neglect to administer 
it, where he wills, and to utilize it to refuse suffrage to 
the respectable law-abiding and educated negro.

Plaintiff has illustrated p roo f o f  his charge that the 
“ understanding clause”  is not applied to whites, by



19

showing that in the first precinct o f the Fifth W ard o f 
New Orleans, over 200 voters were registered hy de­
fendant, nearly all o f whom  are foreigners, or sons o f 
foreign-born parents, few  o f whom read or even speak 
English correctly, and substantially not one in the en­
tire precinct could correctly com ply with the “ under­
standing clause.”

The present case is free o f the difficulties in Guinn 
v. United States, 238 U. S. 354, where it was held that 
the educational qualification was so com pletely inter­
related with the “ grandfather clause”  that the nullity o f 
the latter carried the nullity o f the form er. W e have 
no quarrel with the educational test in the Louisiana 
law.

Our attack on the “ understanding clause”  is two­
fo ld :

(1) That, in the language o f the opinion in Gumn 
us. United States (p. 361) “ it involves an unmistakable, 
although it may be a somewhat disguised, refusal to 
give effect to the prohibitions o f the 15th Amendment 
by creating a standard which it is repeated but calls to 
life the very conditions which that amendment was 
adopted to destroy, and which it had destroyed.”

(2) That it subjects plaintiff to an arbitrary, un­
reasonable, and capricious qualification o f  his right to 
register and vote, and confers on defendant an unlim­
ited, unguided, and arbitrary pow er to refuse plaintiff 
the right to register and vote, solely on account o f his 
race and co lor ; by conferring on the Registrar authority 
to give or withhold the test; and giving it, to declare the 
plaintiff’s interpretation wrong.



.20

The “ understanding clause”  o f the Louisiana Con­
stitution is not the only pitfall, in this mechanism, which 
seems to give, but really withholds.

A further provision in the section authorizes appli­
cant to file suit in the district court, without costs, to 
test his right to vote. The case must be tried before a 
jury o f 12, nine o f whom  must concur to reach a ver­
dict. The Court may grant one new trial by jury. “ In 
no case shall any appeal lie or any other Court exercise 
the right o f  review.”

The doors o f the State courts are, therefore, closed 
for  a test o f the constitutionality o f  the “ understanding 
clause.”  It will readily be appreciated how impossible, 
any but the merest handful o f citizens could resort to 
the courts fo r  relief. If the five district courts o f  New 
Orleans devoted their entire dockets to the trial o f  such 
cases during the four trial days per week, only twenty 
citizens per week could obtain a hearing. In the ten 
months o f the court session, less than 900 such cases 
could be tried, even assuming that all the other business 
o f crowded dockets was set aside.

In Louisiana, the right to register is an important 
property right to those seeking em ploym ent on public 
work. Act 116 o f 1928, amending Act 271 o f 1908, limits 
employment o f mechanics on all public w ork  o f State, 
City, or Governmental agencies, to qualified voters o f 
Louisiana. Exceptions are granted only when the Gov­
ernor, Mayor, or other governmental o fficer fails when 
called upon, to furnish qualified voters.

W e submit that M yers vs. Anderson  is com plete au­
thority in this case fo r  jurisdiction, fo r  quantum if there



21

is a cause o f action, and fo r  the principle that what is 
necessarily im plied by a statute, is as much a part o f it 
as what is expressed.

But, it is answered, Oklahoma and Annapolis adopt­
ed a standard for  qualification for  voting, based upon 
the Suffrage requirements o f 1868, when the only voters 
were whites. The inclusion o f that standard was a v io­
lation o f the 15th Amendment, even though the instant 
statute did not mention race or previous condition of 
servitude.

The trial judge deemed Williams vs. Mississippi, 
170 U. S. 213, a conclusive contra  authority herein.

It is true that the “ understanding clause”  o f  the 
Mississippi suffrage system received a sort o f negative 
approval, a failure o f utter condemnation. But the issue 
was only rem otely before the Court. A negro murderer, 
condem ned by the State Court, sought that last clear 
chance, an appeal to the Federal courts in the plea that 
men o f  his race were excluded from  the juries which 
indicted and convicted him. The Court in denying him 
liberty, declared that his pleadings charged that Mis­
sissippi’s law's intended discrimination, that they a fford ­
ed opportunity to registration officers to discriminate, 
but there was no sufficient showing o f carrying such 
intent into execution, and that it was essential in order 
that such laws be held contrary to the amendments, that 
actual execution o f the intent, be amply shown. The 
Court said in this case:

“ It cannot be said, therefore, that the denial 
o f the equal protection o f  the laws arises prim ari­
ly from  the constitution and laws o f Mississippi,



22

nor is there any sufficient allegation o f an evil 
and discriminating administration o f them. The 
only allegation is “  * * by granting a discre­
tion to the said officers, as mentioned in the sev­
eral sections o f the constitution o f the State, and 
the statute o f  the State adopted under the said 
constitution, the use o f which discretion can be 
and has been used by said officers in the said 
W ashington County to the end here com plained o f 
to-wit, the abridgment o f  the elective franchise 
o f  the colored voters o f W ashington County, that 
such citizens are denied the right to be selected 
as jurors to serve in the Circuit Court o f the 
county, and that this denial to them o f the right 
to equal protection and benefits o f  the laws o f the 
State o f Mississippi on account o f their co lor and 
race, resulting from  the exercise o f  the discre­
tion partial to the white citizens, is in accordance 
with and the purpose and intent o f the framers 
o f  the present constitution o f said State.

“ It w ill be observed that there is nothing di­
rect and definite in this allegation either as to 
means or time as affecting the proceedings against 
the accused. There is no charge against the o ff i­
cers to w hom  is submitted the selection o f grand 
or petit jurors, or those who procure the lists o f 
the jurors. There is an allegation o f the pur­
pose o f the convention to disfranchise citizens o f 
the colored race, but with this w7e have no con ­
cern, unless the purpose is executed by the con­
stitution or laws or by those who administer 
them. * * *”

And in three sentences, the Court gives the reason­
ing fo r  its refusal to interfere in the Williams case:

“ Though the law itself be fa ir on its face 
and impartial in appearance, yet, if it is applied



23

and administered by public authority with an 
evil eye and an unequal hand, so as practically 
to make unjust and illegal discriminations be­
tween persons in similar circumstances, material 
to their rights, the denial o f equal justice is still 
within the prohibition o f  the Constitution. This 
principle o f  interpretation has been sanctioned 
in H enderson v. Mayor o f N ew  York, 92 U. S. 259; 
Chy Lung u. Freem an, 92 U. S. 275; E x parte Vir­
ginia, 100 U. S. 339; Neal v. Delaware, 103 U. S. 
370; and Soon Hing v. Crowley, 113 U. S. 703.

“ This comment is not applicable to the con­
stitution o f Mississippi and its statutes. They do 
not on their face discriminate between the races, 
and it has not been shown that their actual ad­
ministration was evil, only that evil was possible 
under them.”

Contrast now the paucity o f  pleading as to facts o f 
discrimination on account o f race, in the Williams case, 
with those in the present suit. W e believe we have 
shown a case o f  a race rebuffed in its effort to gain 
recognition fo r  educational endeavor, lawful living, clean 
citizenship.

It matters not how high his grade o f civilization, 
the arbitrary discouragement o f deprivation awaits the 
negro under the understanding clause. P laintiff’s peti­
tion shows with abundant detail the working effect of 
the statute— 1669 negroes w ho can read and write regis­
tered out o f  776,326 population, 17,778 white who can­
not read or write out o f a population o f 1,318,170.

The Mississippi understanding statute applies only 
to illiterates; the Louisiana statute applies both to the 
illiterate and the literate,— if they are negroes.



24

The petition charges fo r  a first cause o f action that 
the defendant was liable because he arbitrarily and un­
constitutionally enforced an article o f the Louisiana 
Constitution to deprive plaintiff o f registration as a 
voter, when this article was contrary to the 15th Am end­
ment, and fo r  a second cause o f action, because it was 
contrary to the 14th Amendment.

Plaintiff has shown in his pleadings that he is a 
negro, previously registered as a voter, a citizen with a 
good record, m ore than ordinarily educated, refused 
registration because o f the understanding clause, that in 
43 out o f  the 62 parishes in Louisiana no negroes at all 
are registered, that o f the others, two parishes have one 
negro each registered, fou r parishes have two negroes 
registered, two have three each. Outside o f  New Or­
leans, no parishes have m ore than 20 registered negroes, 
and only eight m ore than ten such registrants.

Plaintiff has charged that the test is applied to ne­
groes and omitted as to whites, and instances an elec­
tion precinct in New Orleans o f over 200 white regis­
trants, practically all o f  w hom  are unable to correctly 
read or speak English, or to give a reasonable interpre­
tation o f any part o f the Constitution.

All o f which is an abundant showing in the language 
o f W illiam s v. Mississippi, omitting the negative, w hile: 
“ they do not on their face discriminate between the 
races, and it has been shown that their actual adminis­
tration was evil, and that evil was possible under them.”

Yick W o  v. Hopkins, 118 U. S. 356, stands out as 
the best expression o f the doctrine that statutes may



25

violate the constitution by their method o f administra­
tion.

Citing Baltimore v. Radecke, 49 Maryland 217, which 
involved the authority o f  the Mayor to give or withhold 
permits to operate steam engines in the city limits, the 
opinion quotes:

“ But it commits to the unrestrained w ill o f 
a single public o fficer the pow er to notify every 
person who now employs a steam engine in the 
prosecution o f any business in the city o f  Balti­
more, to cease to do so, and, by providing com ­
pulsory fines fo r  every day’s disobedience o f 
such notice and order o f removal, renders his 
pow er over the use o f  steam in that city practical­
ly absolute, so that he may prohibit its use alto­
gether. But if he should not choose to do this, 
but only to act in particular cases, there is noth­
ing in the ordinance to guide or control his 
action. It lays down no rules by which its im­
partial execution can be secured or partiality 
and oppression prevented. It is clear that giving 
and enforcing these notices may, and quite likely 
will, bring ruin to the business o f those against 
whom  they are directed, while others, from  whom  
they are withheld, may be actually benefited by 
what is thus done to their neighbors; and, when 
we rem em ber that this action or non-action may 
proceed from  enmity or prejudice, from  partisan 
zeal or animosity, from  favoritism  and other im­
proper influences and m otives easy o f  conceal­
ment and difficult to be detected and exposed, 
it becom es unnecessary to suggest or to comment 
upon the injustice capable o f being brought un­
der cover o f  such a power, fo r  that becom es ap­
parent to every one who gives to the subject a



26

moment’s consideration. In fact, an ordinance 
which clothes a single individual with such pow ­
er hardly falls within the domain o f law, and we 
are constrained to pronounce it inoperative and 
void.”

How like the power committed to the Registrar o f 
Voters o f Louisiana. W ith no definition o f their powers, 
no prescription as to application, no limits to pow er to 
give or to withhold the right to a voice in government, 
the Louisiana statute says the registrar may make voters 
where he will, and withhold where he desires, without 
limit, rule, or guidance.

As said by counsel in this case— page 363: “ Can a
Court be blind to what must be necessarily known to 
every intelligent person in the State?”  Do not all know  
that the “ understanding clause”  was the left-handed o f f ­
spring o f the illegitimate “ grandfather clause?”  The 
Constitutional Convention which adopted this ordinance, 
debated it only in executive session, and we have no 
volum e o f debates declaring its purpose. But that pur­
pose was so generally known and accepted, as to require 
no label. A poll-tax was not sufficient, an educational 
test was not sufficient. There must be discrimination, 
and arbitrary unreasoning, strong-arm discrimination 
to keep out the educated black, and let in the unedu­
cated white.

The Yick W o  case in vehement language, carries 
these facts to the inevitable conclusion, that om ission o f 
the words declaring race discrimination, does not save 
a law, inevitably designed fo r  that purpose, and invaria­
bly so administered. This is the verbiage:



27

“ In the present cases we are not obliged to 
reason from  the probable to the actual, and pass 
upon the validity o f the ordinances com plained 
of, as tried merely by the opportunities which 
their terms afford, o f unequal and unjust dis­
crimination in their administration. F or the 
cases present the ordinances in actual operation, 
and the facts shown establish an administration 
directed so exclusively against a particular class 
o f persons as to warrant and require the conclu­
sion, that, whatever may have been the intent o f 
the ordinances as adopted, they are applied by 
the public authorities charged with their adm in­
istration, and thus representing the State itself, 
with a mind so unequal and oppressive as to 
amount to a practical denial by the State o f that 
equal protection o f the laws which is secured to 
the petitioners, as to all other persons, by the 
broad and benign provisions o f the Fourteenth 
Amendment to the Constitution o f  the United 
States. 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 o f equal justice is still 
within the prohibition o f  the Constitution. * * *”

An excepton o f no cause o f action admits for  its 
purposes the allegations o f the petition, and taking our 
allegations as a statement o f the case, we have our facts 
confessed. To this situation we apply the concluding 
paragraph o f the Yiclc W o  case:

The fact o f this discrimination is 
admitted. No reason for  it is shown, and the



28

conclusion cannot be resisted, that no reason for 
it exists except hostility to the race and national­
ity to which the petitioners belong, and which in 
the eye o f  the law is not justified. The discrim i­
nation is, therefore, illegal, and the public ad­
ministration which enforces it is a denial o f  the 
equal protection o f the laws and a violation o f 
the Fourteenth Amendment o f the Constitution.”

W e submit that tested by its genealogy, by its con­
tem porary history, by its internal com plexity, with un­
limited and undefined authority to registrars to test or 
not to test, to give a voice in government, or withhold 
suffrage, with court process beyond the nisi priiis court 
expressly denied, with a demonstrated result after years 
o f operation o f practically com plete elimination o f ne­
gro registration in Louisiana— with no negro voters in 
three-fourths o f the parishes— the mala fides o f  the “ un­
derstanding clause”  has been demonstrated.

And we accordingly ask reversal.

Respectfully submitted,

H. W . ROBINSON,
A ttorney fo r  A. M. Trudeau, 

Plaintiff and Appellant.





■







N. A. A, C. P, 
70 FIFTH AVE„ 

NEW YORK CITY,

IN THE

SUPREME COURT OF ARKANSAS

J. M. ROBINSON ET AL.,

APPELLANTS,

VS.

L. C. HOLMAN ET AL.,

APPELLEES.

fNo. 1503.

ABSTRACT AND BRIEF OF APPELLANTS.

J no. A. H ib b l e r ,
B ooker and B ooker,
S cipio  A . J o n es,

Solicitors for Appellants.

M O N T G O M E R Y  a  S O N .  L A W  B R I E F  P R I N T E R S .  P O P L A R  B L U F F ,  M O ?





No. 1503

IN THE

SUPREME COURT OF ARKANSAS
J. M . R OBIN SON , J. O. H ICK M A N , IK E R  JIM E R SO N , J. W . 

D O U G LA S, W . S. B RO W N , L E R O Y  E. W IL L IA M S , A. E. 
AM OS, H . H O W E L L , J. W . W A L K E R , C. E. D U BISO N , 
E T  A L „

L. C. H O LM AN , M R S . CH AS. H . M IL L E R , C. A. R O T H , T . E . 
H A L E , TO M  C A M P B E L L , W . C. S M IT H , M R S. T . J . 
N EW M A N , L . P . C R Y E R , E CTO R  JOHNSON, W . C. 
B A IR D , R . W . H O W E L L , F R E D  L . JORDAN , J . C. 
E A K IN , M R S. B . C. A D A M S, E. L . H U D D LE STO N , M R S. 
N E L L IE  V . M A T H E W S , C. A. R IL E Y , V E R N E  M cM IL - 
LAN, R . B . D A V E N P O R T , M R S. L . D. R EAGAN , TH A D  
FE LTO N , W . A . CROW , M R S. W . G. M cD A N IE L , C LYD E  
A RN O LD , M R S. E. M . F R IC K , C. M . L E IR D , J . O. 
B U R D E L L , J. P . B A L D W IN , M R S. C. L . MCDONALD, 
A . L . JON ES, M R S. A D A  BOONE, M . A . STONE, W . H . 
JA R R E T T , P H IL  P H IL L IP S , V IC T O R  K O E R S, JOE JUNG, 
W . O. FLE M IN G , M R S. A L  K IN S O L V IN G , E. B. SPEE LE R, 
M R S. W . C. B R A Y , JOE HANSON, S T E V E  E V A N S, FR ED  
K R A M E R , R. E. K IN S T L E Y , W . A . B A X L E Y , M R S. TOM  
M A LO N E , H E N R Y  Y E A G E R , M R S. W . R . K IN C H L A R , 
H E R M A N  D U R ST , M R S. J. C. B EM BE R G , II. C . K O L B E , 
M R S. J. C. P A R R , A . F . L A P E , M R S . R EE S P . H OR- 
R O C K S, P A Y N E  R A M SE Y , T . O. R O W L A N D , R. M . 
F E W E L L , H A R V E Y  SH OFFN ER, M R S . F R A N K  GIBB, 
M R S. J. B. D IC K IN SO N , JA M E S PE N IC K , W . H . GARNER, 
TO M  N E W L A N D , W . H . D W IG G IN S, M R S. C. H . H A T ­
F IE L D , W A L K E R  SAN D E R S, TO M  C A R U T H E R S, C. A. 
P U L L E N , M R S . JEN N IE  G A R R E T T , FLO R E N CE  DO NA­
H U E, M R S . A . B . B A R T L E T T , L L O Y D  JU D D , JOHN 
B A T E M A N , M R S . E. B . K E L L E Y , M R S. W . E . T H R O C K ­
M O RTO N , M R S. CORA JER N IG A N , J. W . OLSON, GEORGE 
W . EM ERSON , M R S . F . L . W H IT E D , M R S . T . P . HOM - 
A RD , W . A . BRANNON, E. E LLEN BOG EN , GORDON, N. 
P E A Y , M R S . W . R . L IN D S E Y , M R S. A . R U S S E L L , M R S . 
J. C. M cCO OK, E A R L  F R A Z IE R , D . W E B S T E R  JONES, 
JO S E P H  LOEB, L . K . SN O DGRASS, J. M . STERN , 
GEORGE ST R A T M A N , S. V . B R A C Y , M R S. F U L L E R



2

SPEN CER, M IS S  E T T A  L E E  JORDAN , M IS S  G U SSIE  
H A Y N IE , W A T T  G R A H AM , D . S. R ISO R , W . E. H A R ­
RING TON , L O U IS  A D A M S, M R S. J. B. W E L L S , ROY 
B E L L , J. T. K IR K , M R S. R . T . M IT C H E L L , M R S : O: H : 
DEN GLER, GORM AN JONES, M R S. F R E D  A. SNODGRASS, 
W . E. B A L E , M R S. R. L . D IC K E R SO N , M R S . J . H . 
JOHNSON, M R S. B. T . H O FF, W . E. L IV IN G ST O N , 
GEORGE B O ST IC K , W . S. K O TCH , M R S. E D IT H  COL­
LIN S, H . E. P A T T ISO N , M R S. W . E. GREEN, H E N R Y  
SH AU M AN , M R S. GU Y A M SL E R , C. C. CONNER, P A U L  
M IZE L L , T A Y L O R  R O B E R T S, C. M . JENSON, M R S. N. W . 
STU B B S, BOB FA U ST , M R S . C. E. PEN D LETON , W . A. 
GOARD, H O M ER FR E E LIN G , GUS B U T L E R , W . P . GREEN, 
M R S. W . G. SPRAGU E, GEORGE W . PR IC E , J . L . 
D R A P E R , M R S. C. V . H O K E, M R S. W . R . DONH AM , 
SCOTT JAM ISO N , R . B. A SH C R A F T , J. C. CONNER, 
W . J. H E R R IN G , M R S. A . J. W IL SO N , D A N  BOONE, 
M R S. P . V . B U RTON , Z . H E N R Y  JU DGES, M R S. S . W . 
M A SE , M R S. F R E D  A D A IR , C. J. G R IF F IT H , M R S. D . D . 
TH OM PSO N , M R S. C. C. C H R IS P , H E N R Y  B AU M , S T E R L ­
IN G  C O C K R ILL,

A P P E L L E E S.

STA TE M E N T OF TH E CASE.

This is an action brought by J. M. Robinson 
et al., negroes, asking a permanent restraining 
order against L. C. Holman et al., election com ­
missioners and officers o f the State Dem ocratic 
Committee, restraining them from  interfering with 
the said appellants in the free exercise o f their 
rights o f franchise as dem ocrats in the Dem ocratic 
Primaries o f the State o f Arkansas. The petition 
and application fo r  a tem porary order were filed 
against the City Election Commissioners o f Little 
Rock, Arkansas, in the City Dem ocratic Primaries, 
November, 1928, and was heard by Judge Richard 
Mann o f the Second D ivision o f the Pulaski Cir­
cuit Court, who was acting for  Judge Frank Dodge, 
Chancellor o f the Pulaski Chancery Court, who 
was absent from  the state. Judge Mann granted



3

the temporary order perm itting the appellants to 
vote in the city primary election in November,
1928. The petition was afterward amended by 
agreement o f attorneys representing both appel­
lants and appellees, making the state Dem ocratic 
election commissioners and officers party defend- 
ants. Services were duly had upon the chairman 
and secretary o f the State Dem ocratic Central 
Committee and the matter came on for hearing 
before Judge Dodge on the 21st day o f September,
1929, who dissolved the tem porary order and it 
now comes to this court on appeal from  his decisj 
ion dissolving and dismissing the injunction anc 
petition. This case involves the construction anc 
application o f  the Constitution o f the Unitec 
States, especially the fourteenth and fifteentl 
amendments thereto and the Statutes o f  the State 
o f Arkansas as applied to the Dem ocratic rule 
governing their prim ary elections.

In the Pulaski Chancery Court.
J. M. Robinson, J. 0 . Hickman, Ike Jimerson,

J. W . Douglass, W . S. Brown, Leroy W il­
liams A . E. Am os, H. A . H owell, J. W . 
W alker, C. E. Dubison, Plaintiffs,

vs.
L. C. Holman and others, Defendants.

AM E N D M E N T TO P E T IT IO N  FO R  R E S T R A IN ­
IN G ORDER.

Come the plaintiffs and having previously



4

obtained the consent o f the court make E. L. 
Compere, chairman, and H. L. Lambert, secretary, 
respectively, o f the Dem ocratic State Central Com­
mittee o f Arkansas, parties defendant to this 
action, and file the follow ing amendment to the 
allegations o f the petition heretofore filed:

Petitioners further allege that the officials o f  
the Dem ocratic prim ary election in the city o f 
L ittle Rock, as well as in other cities of A rkan­
sas, refuse to permit negroes to vote in Dem ocratic 
primaries, solely because o f the fact that they are 
negroes.

That the said chairman and secretary o f said 
Dem ocratic State Central Committee acting on 
behalf o f the Dem ocratic party in Arkansas have 
instructed all judges o f Dem ocratic prim ary elec­
tions in Arkansas to refuse to perm it negroes to 
vote therein.

That between this date and the date o f the 
next general election in 1930, Dem ocratic primaries 
w ill be held in the city o f L ittle R ock  and through­
out the State of Arkansas fo r  the nomination o f 
city, township, county, district, State and national 
offices, and that i f  not restrained by the court said 
chairman and secretary o f said Dem ocratic State 
Central Committee o f Arkansas w ill instruct all of 
said Dem ocratic prim ary officials to refuse votes 
to all negroes who may offer to vote therein.

The petitioners possess all necessary qualifica­
tions under the laws o f the State o f Arkansas as 
electors, to vote in Dem ocratic primaries.



5

Petitioners say that said refusal of Dem ocratic 
officials to permit them to vote in Dem ocratic 
primaries is in contravention of and violative of 
the provisions o f the fourteenth and fifteenth 
amendments to the Constitution o f the United 
States and is a denial to them o f their rights as 
citizens thereunder.

W herefore, the premises considered, petitioners 
pray in addition to the relief asked in their original 
petition, that the said E. L. Compere, as chairman, 
and the said H. L. Lambert, as secretary, respect­
ively, o f the Dem ocratic State Central Committee 
o f Arkansas, their successors in office, their agents, 
employees, and the election officials, appointed 
under their authority, as well as the said parties 
defendant named in the original petition herein, 
be permanently restrained from  prohibiting peti­
tioners and all other members of the negro race 
sim ilarly situated and otherwise qualified from  
voting in the forthcom ing Dem ocratic primaries 
to be held throughout the State o f Arkansas during 
the next two years, or any time thereafter.

BO O K ER & BOOKER,
JNO. A . H IB B LE R ,

Solicitors for  Plaintiffs.

In the Pulaski Chancery Court.

J. M. Robinson, J. 0 . Hickman, Ike Jimerson,
J. W . Douglass, W . S. Brown, L eroy E.



6

W illiam s, A. E. Amos, H. A. Howell, J. W .
W alker, C. E. Dubison et al., P laintiffs,

vs.
L. C. Holman and others, Defendants.

A N SW E R .

The defendants, for  answer to the petition and 
amendment to the petition herein, admit that the 
plaintiffs are citizens o f Arkansas, of Pulaski 
county, and o f the City o f L ittle Rock, that they 
are freeholders, taxpayers and qualified voters; 
but they say they have no knowledge or inform a­
tion sufficient to form  a belief as to whether or 
not the plaintiffs are Democrats, and, therefore, 
deny that they were qualified under the law to 
vote in the Dem ocratic city prim ary o f Little 
Rock, which was held on M onday, Novem ber 26, 
1928; they deny that the plaintiffs voted in the 
last Dem ocratic prim ary preceding said city 
prim ary; defendants further state that they have 
no knowledge or inform ation sufficient to form  a 
belief as to whether the plaintiffs voted the entire 
Dem ocratic ticket in the last general election held 
Novem ber 26, 1928.

Defendants admit that the plaintiffs would 
have been prohibited from  voting in the Demo­
cratic city  prim ary which nominated a candidate 
fo r  m ayor o f the city  o f L ittle Rock, and several 
aldermen, on the 26th day o f November, 1928, 
unless they had been restrained by this court.



7

Defendants deny that a Dem ocratic prim ary 
election in which Dem ocratic candidates are nom ­
inated fo r  various offices is equivalent to an 
election.

Defendants deny that plaintiffs are being de­
prived o f their rights and privileges as citizens 
and Democrats under the 14th and 15th Am end­
ment o f the United States on account o f their 
race, color or previous condition o f servitude, by 
reason o f being prohibited from  participating in 
a Dem ocratic primary.

Defendants admit that the plaintiffs are 
negroes, citizens o f the United States and o f 
Arkansas, residents o f the city o f Little Rock, and 
that they are qualified voters, but deny that they 
are qualified to vote in any Dem ocratic primary 
held in the State o f Arkansas by reason o f the 
fact that under the existing rules o f the Dem ocratic 
Party in Arkansas as amended and adopted by  the 
Dem ocratic State Central Committee, October 16, 
1926, under the authority o f the Dem ocratic State 
Convention, the supreme governing bodies o f the 
Dem ocratic party in Arkansas, it is provided by 
Section 2 thereof, as follow s:

“ The Dem ocratic party o f Arkansas shall con­
sist o f eligible and legally qualified white electors, 
both male and female, wTho have openly declared 
their allegiance to the principles and policies of 
the Dem ocratic party, as set forth in the platform  
o f the last preceding Dem ocratic National and 
State Conventions, who have supported the Demo-



8

cratic nominees at the last preceding elections, 
and who are in sympathy with the success o f tne 
Dem ocratic party in the next succeeding election.”

Defendants further state that by reason o f 
said rule o f the party legally adopted, the plain­
tiffs and all other persons except white persons 
are prohibited from  voting in Dem ocratic primaries 
in the State o f Arkansas; defendants further admit 
that the chairman and secretary o f the Dem ocratic 
State Central Committee acting on behalf o f the 
Dem ocratic party in Arkansas, have instructed and 
w ill instruct in the future all judges o f Dem ocratic 
prim ary elections in Arkansas to refuse to permit 
negroes to vote in said primaries.

But defendants deny that such refusal to 
perm it the plaintiffs to vote in a Dem ocratic 
prim ary is a denial and abridgement o f their rights 
under the laws o f  the United States o f Am erica, 
or that it is an abridgement o f the privileges and 
immunities o f the citizens o f the Uuited States, 
or that it is denial o f persons within its ju risd ic­
tion of the equal protection o f the law.

Defendants admit that E. L. Compere is 
chairman o f the Dem ocratic State Central Com­
mittee and that H. L. Lam bert is secretary o f 
the Dem ocratic State Central Committee, and that 
the other defendants were the duly qualified and 
acting judges o f a prim ary election held under 
the auspices o f the Dem ocratic party in the city 
o f L ittle R ock  on the 26th day o f November, 1928.

Defendants further state that the Dem ocratic



9

party is a voluntary, unincorporated association, 
com posed o f white electors, both male and female, 
who have openly declared their allegiance to the 
principles and policies of the Dem ocratic party, 
and whose members have the right to determine 
who shall compose the membership o f the associa­
tion and to adopt such rules as may seem fit and 
proper to them for the purpose o f governing the 
party, o f regulating the admission o f other mem­
bers and to prohibit any one except those eligible 
to membership from  participating in its prim ary 
elections or conventions.

W herefore, having fu lly  answered, the defend­
ants pray that the tem porary restraining order 
heretofore granted by the court in this case 
restraining judges o f election from  prohibiting the 
plaintiffs from  voting in the Dem ocratic primary 
held in Little Rock, Pulaski County, Arkansas, 
Novem ber 26, 1928, be dissolved, and that the 
petition and amendment to the petition o f the 
plaintiffs herein be dismissed for want o f equity, 
and for  the further reason that this court has no 
jurisdiction to determine the membership o f the 
Dem ocratic party in Arkansas, and for  all other 
proper relief.

D. K . H A W T H O R N E ,
JU N E P. W O OTEN ,

Solicitors fo r  Defendants.



10

In the Pulaski Chancery Court.

J. M. Robinson et al., P laintiffs,
vs.

L. C. Holman et al., Defendants.

STIPU LA TIO N S.

Made orally, at the bar o f the Court, at a 
hearing before the H onorable Prank H. Dodge, 
Chancellor, on February 4, 1929.

Appearances: Booker & Booker, Esquires;
John A . Hibbler, Esquire, for  Plaintiffs. June P. 
W ooten, Esquire; Donald K . Hawthorne, Esquire, 
fo r  Defendants.

It is expressly stipulated and agreed that the 
follow ing oral stipulations in this action m ay be 
made in open court, before the Honorable Frank 
H. D odge, Chancellor, reported in shorthand by 
S. H. Atkinson, the official stenographer o f said 
Court, which stipulations, together with exhibits, 
i f  any, may be transcribed and certified by the 
said official stenographer o f said Court, submitted 
to the Chancellor fo r  examination and approval 
w ithin six months o f the date o f the decree herein, 
and, when so approved by the Chancellor, filed as 
Stipulations and as a part o f the record in this 
action.

Mr. H aw thorne: It is stipulated that J. M. 
Robinson, J. 0 . Hickm an, I. W . Jimerson, J. W . 
Douglass, W . S. Brown, L eroy E. W illiam s, A . E. 
Amos, H. A . H owell, J. W . W alker and Peach



11

Jordan are citizens, residents and taxpayers of 
the City o f Little Rock, State o f  Arkansas, and 
holders o f poll tax receipts, and qualified electors, 
and that they supported the Dem ocratic nominees 
in the general election in 1926, and that they 
voted in the Dem ocratic City Primary, held in the 
City o f Little Rock on November 26, 1928, and 
that, prior thereto, on November 6, 1928, they sup­
ported the Dem ocratic nominees in the State and 
National election, and that they have expressed and 
declared themselves in sympathy with the success 
o f the Dem ocratic party and are believers in the 
principles o f the Dem ocratic party.

Mr. W ooten : And that the fact that they 
voted in the Dem ocratic Prim ary, in November, 
1928, was by reason o f a tem porary restraining 
order issued by  this Court, and that such acts 
were done without the consent or approval o f the 
officers o f the State Central Committee; that the 
follow ing rule is a regularly established rule o f 
the “ Rules o f the Dem ocratic Party in Arkansas, 
adopted October 16, 1926, under the authority o f 
the Dem ocratic State Central Committee, o f A rk ­
ansas, and now in force, to-w it:

“ W hom  to Consist of. Section 2. The Demo­
cratic Party o f Arkansas shall consist o f all eligible 
and legally qualified white electors, both male and 
female, who have orally declared their allegiance 
to the principles and policies o f the Dem ocratic 
Party, as set forth in the platform  o f the last 
preceding Dem ocratic National and State Conven­



12

tion, who have supported the Dem ocratic nominees 
at the last preceding elections and who are in 
sym pathy with the success o f the Dem ocratic party 
in the next succeeding election.”

That for the last 25 years, in the State o f 
Arkansas, the Dem ocratic nominees have been 
elected at the succeeding State elections fo r  State 
officers, except members o f the Legislature and 
a few  District officers.

Court: Is that all?
Counsel: That is all.

J. M. Robinson, J. 0 . Hickman, Ike Jimerson,
J. W . Douglass, W . S. Brown, L eroy E. 
W illiam s, A . E. Am os, H. A . Howell, J. W . 
W alker, C. E. Dubison, Plaintiffs,

vs.
L. C. Holman, E. L. Compere, chairman, and 

H. L. Lam bert, Secretary o f the Dem o­
cratic State Central Committee o f A rk ­
ansas, Defendants.

DECREE.

On this day come the above named plaintiffs, 
in person and by their solicitors, B ooker & Booker 
and John A . Hibbler, and come the defendants by 
their solicitors, June P. W ooten  and D. K . H aw ­
thorne, and this cause having been reached upon 
a call o f  the calendar and all parties announcing 
ready for  trial, the same is submitted to the Court 
for consideration and determination upon the peti­



13

tion for  a restraining order, with its exhibits, the 
tem porary restraining order, with its exhibits, the 
tem porary restraining order heretofore issued by 
the Honorable R. M. Mann, Judge o f the Second 
D ivision o f the Pulaski Circuit Court, sitting in 
the absence o f the regular Chancellor, the amend­
ment to the petition for a restraining order, the 
answer with its exhibits, the stipulations entered 
into orally before the Court and the exhibits there­
to ; and the Court, being well and sufficiently 
advised in the premises, doth find that the petition 
o f  plaintiffs should be dismissed for  want o f equity.

It is therefore, by the Court considered, 
ordered, adjudged and decreed that the petition o f 
plaintiffs be, and same is, hereby dismissed for 
want o f equity, with costs.

It is further ordered that the tem porary 
restraining order heretofore issued in this cause 
be, and the same is, hereby dissolved.

W hereupon, the plaintiffs except to the ruling 
o f the Court and pray an appeal to the Supreme 
Court o f September 19, 1929.



Assignm ent of E rro rs .

I .

The Chancellor erred in dismissing the peti­
tion and. dissolving the injunction o f the appellants.

a. F or the reason this case involves the con­
struction and application o f the Constitution o f 
the United States and especially the Fourteenth 
and Fifteenth Amendment thereto.

b. F or the reason this is a case in which 
the Dem ocratic party o f Arkansas by adopting a 
party rule is claimed to he in contravention to the 
Constitution o f the United States, the Constitu­
tion and Laws o f the State o f  Arkansas.

c. F or the reason this is a suit to prevent a 
political party under color o f  party rule from  
taking from  the citizens o f the United States and 
State o f Arkansas, a right and privilege secured 
by the laws o f the United States, providing fo r  
equal rights fo r  citizens o f  all persons within its 
jurisdiction.

d. F or the reason appellants are being de­
prived o f the right to vote in Dem ocratic Party 
Prim aries solely on account o f race and color, 
which right the appellants claim is based upon 
the right guaranteed by the Constitution and laws 
o f the United States.

e. F or the reason the appellants are denied 
the right to vote in D em ocratic Prim ary E lec­



15

tions by the election judges in charge thereof 
who are instructed by the officials o f the Demo­
cratic State Committee that no negro should be 
allowed to vote in such party primaries, which act 
is in violation o f  the Constitution o f the United 
States and the State o f Arkansas and discriminates 
against appellants solely because o f race and color.

f. F or the reason under the allegations in 
the petition o f the appellants, at the time appel­
lants presented themselves at the polls they pos­
sessed every qualification o f a voter which had 
been prescribed by the Constitution and Laws of 
the State o f  Arkansas prior to that date and they 
are prevented from  casting their ballot by the 
appellees herein solely upon the ground that they 
are negroes and belong to the colored race.

g. F or the reason the Chancellor erred in 
dism issing the petition o f the appellants fo r  the 
reason that the petition o f the appellants alleged 
that they possessed every qualification o f a legal 
voter prescribed by the constitution and laws o f 
the State o f  Arkansas and. that the appellees ad­
mitted the same in their answer and further ad­
mitted that they were denying the appellants the 
right to vote in Dem ocratic party prim aries solely 
because o f their race and color which was in keep­
ing with a rule adopted by the State Democratic 
Committee.

W e shall undertake to discuss briefly  the legal 
questions, which we feel will cover the question



16

raised by our assignments o f errors under the 
follow ing captions:

C A P T IO N  1. The appellants assert rights 
under the Constitution and laws o f the United 
States to vote in all public elections held within 
the State o f Arkansas.

C A P T IO N  2. A  Dem ocratic Prim ary election 
is a public election established, recognized and 
regulated by the Constitution and laws o f the 
State o f Arkansas.

C A P T IO N  3. Casting a vote or ballot in a 
prim ary election established and regulated by the 
state law is an act o f voting within the meaning 
o f the 15th Amendment o f the Constitution o f the 
United States and the immunity against discrim in­
ation on account o f race or color which is guaran­
teed by said Amendment protects the appellants 
in their right to vote in such prim ary elections 
where the only obstacle to be interposed is that 
they are negroes.

C A P T IO N  4. W hen the negroes by virtue o f 
the Fifteenth Amendment acquired immunity from  
discrim ination in voting on account o f their race 
or color they thereby acquired the right and priv il­
ege as free men to exercise to the same extent as 
white men their untrammeled choice in the selec­
tion o f parties or candidates; and when a political 
party by party rule, solely because o f their race 
or color undertakes by law to exclude from  any 
party or deny them the same latitude in register­
ing their preference as members o f  any party o f



their choice that the said party allows to white 
members o f such party, it thereby abridges their 
rights to vote under the Fifteenth Amendment and 
denies to them the equal protection o f the law 
guaranteed by the Fourteenth Amendment.

17



Argum ent.

C A P T IO N  1. T H E  A P P E L L A N T S  A S S E R T  
R IG H T S  U N D E R  T H E  C O N STITU TIO N  A N D  
L A W S  OF T H E  U N IT E D  S T A T E S  TO V O T E  
IN  A L L  P U B L IC  E L E C T IO N S  H E L D  W IT H IN  
T H E  S T A T E  OF A R K A N S A S .

The appellants are denied the right to vote 
in Dem ocratic P arty  prim ary elections by elec­
tion judges in charge thereof, because o f instruc­
tions given them by the chairman and secretary o f 
the State Dem ocratic Committee that no negro 
should be allowed to vote; his ballot should be 
void  and not counted; which act is in violation 
o f  the Constitution and laws o f the United States, 
and the laws o f the State o f  Arkansas and dis­
criminates against the appellants solely because o f  
their race, color and previous condition o f servi­
tude.

Under the allegation o f  the complaint in this 
cause the appellants at the time they presented 
themselves at the polls to vote possessed every 
qualification which had been prescribed as a voter 
by  the Constitution and laws o f the State of 
Arkansas and are denied the right o f casting their 
vote by the appellees herein solely upon the 
ground that they are negroes and belong to the 
colored race, and it is admitted by  the appellees 
that they have so instructed the election judges 
heretofore and will in the future so instruct all 
judges o f  election in D em ocratic party prim ary



19

elections not to permit negroes to vote in said 
Dem ocratic prim aries throughout the State o f A rk ­
ansas, fo r  the reason that it is provided in Sec­
tion 2 o f the rule governing Dem ocratic party pri­
maries in the State o f Arkansas as fo llow s:

“ The Dem ocratic Party o f Arkansas shall 
consist o f  eligible and legally qualified white 
electors, both male and female, who have 
openly declared their allegiance to the prin­
ciples and policies o f the Dem ocratic National 
and State Conventions, who have supported 
the Dem ocratic nominees at the last preced­
ing elections, and who are in sympathy with 
the success o f the Dem ocratic Party in the 
next succeeding election.”

The appellees further admit that by reason o f 
the Dem ocratic party in the State o f  Arkansas 
having legally adopted the aforesaid rule that the 
appellants herein and all other persons o f  the 
negro race will be prohibited at all times in the 
future from  voting in Dem ocratic prim ary elections 
in the State o f Arkansas. This we contend is in 
violation o f  the Fourteenth and Fifteenth Am end­
ment to the Constitution o f the United States and 
Constitution o f  the State o f Arkansas.

C A P T IO N  2. T H E  D E M O C R A T IC  P R I­
M A R Y  E L E C T IO N  IS  A  P U B L IC  E L E C T IO N  
E S T A B L IS H E D , R E C O G N IZE D  A N D  R E G U ­
L A T E D  B Y  T H E  C O N STITU T IO N  A N D  L A W S  
OF T H E  S T A T E  OF A R K A N S A S .



20

The casting o f a ballot in a prim ary election 
established and regulated by the laws o f  the State 
o f Arkansas is an act o f voting within the mean­
ing o f the Fifteenth Amendment to the Constitu­
tion o f  the United States, and the immunity against 
the discrimination on account o f race or color, 
which is guaranteed by said Amendment protects 
the appellants in their rights to vote in such pri­
mary elections where the only obstacle to be inter­
posed is that they are negroes. When the negroes 
by virtue o f the Fifteenth Amendment acquired 
immunity from  discrimination in voting on account 
o f race or color they thereby acquired the right 
and privilege as free men to exercise, to the same 
extent as white men, their untrammeled choice in 
the selection o f parties or candidates; and when 
the officers o f the State D em ocratic Committee by 
party rule or otherwise solely because o f race 
or color undertake to exclude the negroes from  
any party or deny them the same latitude in 
registering their preference as members o f  any 
party o f their choice that they allow to white mem­
bers o f such party  the officers thereby abridge 
the right o f the negroes to vote under the Fifteenth 
Amendment and deny to them the equal protection 
o f  the law guaranteed by the Fourteenth Am end­
ment.

Section One o f the Fifteenth Amendment to 
the Constitution o f the United States provides:

“ The rights o f  citizens o f the United
States to vote shall not be denied or abridged



21

by the United States, or any state, on account 
o f race, color or previous condition o f servi­
tude.”

Section One o f the Fourteenth Amendment, 
provides^

“ All persons born or naturalized in the 
United States are su b ject. to the jurisdiction 
thereof, are citizens o f the United States, and 
o f the State wherein they reside. No State 
shall make or enforce any law which shall 
abridge the privileges or immunities o f citi­
zens o f the United States, nor shall any State 
deprive any person o f life, liberty or property 
without due process o f law, nor deny to any 
person within its jurisdiction the equal pro­
tection o f the law .”

“ W henever any political party in this 
State, shall by prim ary election nominate any 
person to become a candidate at any general 
election, regular or special, or fo r  United 
State Senator, or fo r  Congress or any legisla­
tive, judicial, state, district, county, township 
or municipal office, the said prim ary election 
shall be and is hereby made a legal election.”  
(A ct. A pril 23rd, 1909.)

The succeeding paragraphs 3755, 3756, 3757, 
3758, 3759, provide in detail fo r  the oath o f Judges 
in prim ary elections, form  o f the oath, political 
parties participating therein, time o f holding elec­
tion, County Conventions, selection o f Judges and 
Clerks.



22

No one shall vote in a prim ary election unless 
he is a citizen o f the United States and a citizen 
o f the State and County and precinct wherein he 
offers to vote, and has paid his poll tax, etc. The 
same precaution required by law to secure the pur­
ity o f the ballot box in the general election in re­
gard to the ballot boxes, locking the ballot boxes, 
sealing the same, watchful care o f them, the 
secrecy o f preparing a ballot in the booth or place 
prepared fo r  voting are legally observed in all 
prim ary elections.

It is alleged in appellant’s petition in this case 
and was admitted in the answer o f the appellees 
that appellants possessed every qualification o f a 
legal voter prescribed by the constitution and laws 
o f the State o f Arkansas when they presented 
themselves at the polls to vote in the Dem ocratic 
prim ary election and only fell short o f any require­
ment set out in the rule o f  the Dem ocratic party 
in that they were negroes and belonged to the 
colored race. Appellants insist that the Dem ocratic 
prim ary election in Arkansas nominates candi­
dates to be voted on in the general election and 
whatever is done in the prim ary election determines 
the final result in the general election, which cer­
tainly establishes the contention o f the appellants 
that a Dem ocratic prim ary election is a public 
election established, recognized and regulated by 
the Constitution and laws o f the State o f A rk ­
ansas, and the Statute o f the laws o f the State o f 
Arkansas. “ A n y  prim ary election which deter­



23

mines the result o f the general election is a public 
election.”  (N ixon vs. Herndon, 71 Law Ed., U. S. 
272-274, p. 759.)

C A P T IO N  3. C A STIN G  A  V O T E  OR B A L ­
LO T IN A  P R IM A R Y  E L E C T IO N  E S T A B ­
L IS H E D  AN D  R E G U L A T E D  BY T H E  S T A T E  
L A W  IS  AN  A C T  OF V O TIN G  W IT H IN  T H E  
M E A N IN G  OF T H E  F IF T E E N T H  A M E N D ­
M E N T OF T H E  C O N STITU TIO N  OF TH E  
U N IT E D  S T A T E S  AN D  T H E  IM M U N IT Y  
A G A IN S T  D IS C R IM IN A T IO N  ON ACCOU N T 
OF R A C E  OR COLOR W H IC H  IS  G U A R A N ­
T E E D  B Y  SA ID  A M E N D M E N T P R O T E C T S  
T H E  A P P E L L A N T S  IN T H E IR  R IG H T  TO 
V O T E  IN  SUCH P R IM A R Y  E L E C T IO N S 
W H E R E  T H E  ON LY O B S T A C L E  TO B E  IN ­
T E R P O S E D  IS  T H A T  T H E Y  A R E  N EG RO ES.

Section Two o f the Fifteenth Amendment, p ro ­
vides :

“ That Congress shall have the power to 
enforce said Article by appropriate legisla­
tion. ’ ’

Section 2004, United States Revised Statutes, 
p rov id es :

“ A ll citizens o f the United States who 
are otherwise qualified by law to vote at any 
election by the people o f any state, territory, 
district, county, city, parish, township, school 
district, municipality or other territorial sub­



24

division, shall be entitled and allowed to vote 
at all such elections without distinction o f 
race, co lor or previous condition o f servitude; 
any constitution, law, custom, usage or regula­
tion o f any State or territory or by or under 
its authority to the contrary notwithstand­
in g .”  (Rev. Stat. U. S. Art. 367— 2004; Guinn 
vs. Anderson, 238 U. S. 59 L. Ed. 1349.)

From  the opinion o f the court in the Anderson- 
M yers case and other cases cited, the common 
sense o f  the situation would seem to be, that the 
law forbidding the deprivation or abridgement o f 
the right to vote on account o f race or color being 
the supreme law, it could not be abridged or 
annulled by any state law or party rule. A nd to 
say, that a committee can do by party rule what 
is forbidden to be done by the supreme law o f  the 
land, is sim ply a play o f words. It was prim arily 
the right o f suffrage and its protection as against 
the discrim inatory legislation o f  the state or an 
arbitrary rule o f any party who attempts to do 
through its party machine what it is not per­
mitted to do by law which was the subject matter 
dealt with by the Fifteenth Amendment and the 
revised statute, and considering the purpose o f a 
law, it does not seem that any other construction 
could be defensible. U. S. vs. Reese, 92 U. S. 
214-218, 23 L. Ed. 563. Nothing in the way o f 
interpretation by the legislative body which had 
fram ed the amendment could be m ore significant 
than this enactment passed by Congress immedi-



25

ately upon its adoption. W e are unable to find 
in our search o f cases cited from  the Supreme 
Court o f the United States a single case opposed 
to this interpretation. It seems clear that when 
by the Fifteenth Amendment it is declared that 
the right o f citizens o f the United States shall 
not be abridged or denied by any state on account 
o f  race or color it means what Congress under­
stood it to mean, namely, the right to vote in all 
public elections and that no state or political 
party acting upon the laws o f  any state should 
be allowed by any party rule or any other sub­
terfuge to deny to any citizen the right o f suffrage.

W hen the negro by virtue o f the Fifteenth 
Amendment acquired immunity from  discrim ina­
tion in voting on account o f his race and color, 
he thereby acquired the right and privilege as a 
free man, to exercise to the same extent as the 
white man the untrammeled, choice in the selection 
o f  parties or candidates; and when a State law 
or party rule solely because o f his race and color, 
undertakes by law or rule, to exclude him from  any 
party, or deny him the same latitude in register­
ing his preference as a member o f any party o f his 
choice that it allowed to white members o f such 
party, it thereby abridges his rights to vote under 
the Fifteenth Amendment. U. S. vs. Cruiksliank, 
92 U. S. 542, 23 L. Ed. 588. E x  parte  V irginia, 
100 U. S. 339, 25 L. Ed. 676.

Vick W o. v. Hopkins, 113 U. S. 356, 30 
L. Ed. 220.



26

The Fifteenth Amendment does not confer 
the rights of suffrage upon any one. It prevents 
the States or the United States, from  giving pre­
ference in this particular to one citizen o f the 
United States over another on account o f race 
or color or previous condition o f servitude. Be­
fore  its adoption, this could be done. It was as 
much within the power o f a State to exclude citi­
zens o f the United States from  voting on account 
o f race, as it was on account o f age, property 
or education. Now it is not. I f  citizens o f one 
race having certain qualifications are permitted by 
the law to vote, those o f another race having 
the same qualifications must be. Previous to this 
amendment, there was no constitutional guarantee 
against this discrim ination; now there is. It 
follow s that the Amendment has invested the citi­
zens o f the United States with a new constitutional 
right which is within the protecting power o f Con­
gress. That right o f exemption from  discrim ina­
tion in the exercise o f  elective franchise on account 
o f race, color or previous condition o f servitude. 
(IT. S. vs. Reeves.)

But it said that it is not within the power o f 
the Fourteenth Amendment to withhold from  
States the power o f classification or from  parties 
to designate by rule who their member shall be. 
I f  the law or rule deals alike with all and not dis­
criminate in favor or against a certain class, it 
would not be obnoxious to the charge o f a denial 
o f  the full protection. Yet, it is equally true that



27

such classification cannot be made arbitrarily. 
The State cannot say that all white men must pay 
poll taxes and all negroes must not. (F rom  Gulf, 
C. & S. Rv. vs. Ellis, 165 U. S. 150-155, L. Ed. 
666- 668. )

C A P T IO N  4. W H E N  T H E  N E G R O E S B Y  
V IR T U E  OF T H E  F IF T E E N T H  A M E N D M E N T 
A C Q U IR E D  IM M U N IT Y  FRO M  D IS C R IM IN A ­
TIO N  IN  V O TIN G  ON ACC OU N T OF T H E IR  
R A C E  OR COLOR T H E Y  T H E R E B Y  A C ­
Q U IR E D  T H E  R IG H T  A N D  P R IV IL E G E  A S  
F R E E  M EN TO E X E R C IS E  TO T H E  SA M E  
E X T E N T  A S  W H IT E  M EN T H E IR  U N T R A M ­
M E LE D  CH O ICE IN T H E  SE L E C T IO N  OF 
P A R T IE S  OR C A N D ID A T E S ; AN D  W H E N  A  
P O L IT IC A L  P A R T Y  B Y  P A R T Y  R U L E , 
SO L E L Y  B E C A U SE  OF T H E IR  R A C E  OR 
COLOR U N D E R T A K E S  B Y  L A W  TO E X C L U D E  
FRO M  A N Y  P A R T Y  OR D E N Y  T H E M  T H E  
SA M E  L A T IT U D E  IN R E G IS T E R IN G  T H E IR  
P R E F E R E N C E  A S  M E M B E R S OF A N Y  P A R T Y  
OF T H E IR  CH OICE T H A T  T H E  SA ID  P A R T Y  
A L L O W S  TO W H IT E  M E M B E R S OF SUCH 
P A R T Y , IT  T H E R E B Y  A B R ID G E S  T H E IR  
R IG H T S  TO V O T E  U N D E R  T H E  F IF T E E N T H  
A M E N D M E N T  AN D  D E N IE S  TO T H E M  TH E  
E Q U A L  P R O T E C T IO N  OF T H E  L A W  G U A R ­
A N T E E D  B Y  T H E  F O U R T E E N T H  A M E N D ­
M ENT.



28

The inhibition that no State shall deprive any 
person within its jurisdiction o f the equal protec­
tion o f  the laws designed to prevent any person or 
class o f  persons from  being singled out as a special 
subject fo r  discrim inating and hostile legislation. 
(Pem bins Co. v. Penn., 125 U. S. 181, 188.)

There are many illustrations that might be 
given o f this truth which would make manifest 
that it was self-evid,ent in the light o f our system 
of jurisprudence. The case o f political franchise 
is one. Political franchise is not regarded strictly 
as a natural right, but as a privilege m erely con­
ceded by society according to its will under certain 
conditions; nevertheless, it is regarded as a fun­
damental political right because preservative o f all 
rights.

W hat is the use to enforce the Constitution in 
general elections when in fact the prim ary elec­
tions are the decisive elections in this State in  
choosing public officers. The Dem ocratic party 
prim ary election in Arkansas is the only real 
election in this State, the general election is 
nothing m ore than a form  o f  ratification o f  the 
result o f the Dem ocratic prim ary election. I f  the 
appellees are perm itted by hiding behind the sub­
terfuge o f party rule to nullify the Fifteenth 
Amendment, then the F ifteenth and Fourteenth 
Amendments to the Constitution o f the United 
States were adopted in vain. In the Dem ocratic 
prim ary elections in this State the appellants are 
excluded from  voting on account o f their race



29

and color. I f  all the political parties were holding 
primaries at the same place and time by the same 
officials, then the whites only would have the 
privilege o f selecting the party they wish to partici­
pate with while the negroes and all other races 
who are not white, under the Democratic party rule 
o f Arkansas, would be excluded from  participating 
or voting fo r  the Dem ocratic nominees at such a 
prim ary. Such a situation would be in open viola­
tion o f  the Constitution, but if the contention of 
the appellees is allowed such a situation would be 
a reality.

It seems to us that the point therefore on 
which this case turns is whether the act o f the elec­
tion officers and officers o f the Dem ocratic State 
Committee, appellees herein, are official acts or 
personal acts, that is to say, are they in the per­
form ance o f a duty enjoined upon them by law, or 
are m erely individual and personal and authorized 
by a right inherent in the political organization 
to which they belong. I f  we understand the con­
tention o f the appellees they contend that the latter 
is the correct view that affiliation with a political 
party is not a matter o f right but a party regula­
tion and that the law as such has no authority to 
fix standards or qualifications to membership. 
They argue that a political party and a church 
organization are similar. They say, in effect, that 
there is no legal ban on the form ation o f a politi­
cal party based wholly on color or a religious 
belief or on sex or any other standard which a



30

party chooses to adopt and that because o f this the 
Dem ocratic party o f Arkansas has a right to 
adopt any rule excluding citizens from  membership 
or participation therein on account o f race or 
color, and that the legislature o f Arkansas has 
recognized such right and made no delegation o f 
power but only recognized the existence o f power 
where it had always resided.

W e insist that a political party under the law 
o f the State o f Arkansas may refuse to avail itself 
o f  the privilege o f a direct prim ary and may 
nominate candidates to be voted fo r  in a general 
election or special election in any o f the ways such 
nominations were made before the introduction of 
the prim ary. But because o f the greater safe­
guard which the law throws around the legalized 
prim ary a party elects to adopt this method o f 
naming its candidate fo r  public office that it may 
do so and still preserve the absolute right o f who 
shall participate in it or exclude certain citizens 
on account o f their race or color we think is unten­
able. The prim ary as a means fo r  naming can­
didates fo r  a place on the official ballot is com para­
tively modern. Its spread in the last quarter o f a 
century has been rapid and it is today in practi­
cally every State and the exclusive method 
adopted by the two great political parties fo r  the 
nomination o f  their candidates, for  office, State 
and Federal. Its growth and adoption as a part 
o f the election system in the language o f a learned 
jurist arose because o f the im portance to the public



31

to “ give vitality to the Constitutional guarantee o f 
a free and untrammeled ballot” . W e know as a 
matter o f common knowledge that the purpose of 
holding a prim ary election is to select a candidate 
to be voted fo r  by party organization at the en­
suing general or special election. W e know that 
the person selected at the prim ary election to be 
voted fo r  at the general or special election will re­
ceive the votes o f the members o f the party to 
which he belongs and fo r  which the prim ary is 
held and if both political organizations or all politi­
cal organizations into which a community is divided 
hold prim ary elections it necessarily follow s that 
the person chosen at the prim ary election becomes 
the nominee o f his party to be voted fo r  at the 
general election, and that one o f the prim ary 
nominees will ultimately be elected to the office. 
In other words, the prim ary when adopted by a 
political party becomes an inseparable part o f the 
election machinery and i f  a candidate is to be 
voted fo r  at the general election is to be selected 
at a prim ary, it is impossible to secure the regular­
ity and purity o f the general election without in 
the first place guarding against irregularity' and 
discrimination at the prim ary election. The pri­
mary election constitutes a necessary part and fu l­
fills an essential function in the plea to promote 
honesty in the conduct o f  elections— elections which 
shall guarantee equal suffrage to all citizens alike 
and shall faithfully reflect and register the un­
bought will o f  the electors.



32

In Nixon v. Herndon, supra, the Supreme 
Court said that “ the same reason that allows a 
recovery fo r  denying the plaintiff a vote at a final 
election allow's it fo r  denying a vote at a prim ary 
election that may determine the final result” , and 
in construing a Statute o f Texas providing that in 
no event shall a negro be eligible to participate 
in a Dem ocratic party prim ary election held in the 
State o f Texas, declared the Statute an infringe­
ment o f the Fourteenth Amendment.

The Statute o f Arkansas, unlike that o f Texas, 
does not in terms exclude the negro, but the party 
that is the Dem ocratic party takes the right to 
do so by party rule, the result is the same. Our 
legislature pursuant to constitutional authority 
having undertaken to regulate prim ary elections 
and to authorize them to be held, and to provide 
the same rules and regulations applicable to an 
election could not indirectly any m ore than it 
could directly, exclude a duly qualified voter 
who declares him self to be an adherent to the 
party participating in the prim ary from  the exer­
cise o f the right o f suffrage, nor could it delegate 
to that party to make rules to do indirectly what 
the law has forbidden to do directly. The F ou r­
teenth Amendment com pels the adoption o f what 
is called impartial suffrage. Its purpose was to 
establish all over the United States one people 
out o f a hetrogeneous nation and each and all o f 
these m ay understand the constitutional fact that 
his privileges and immunities cannot be abridged



33

by party rule or state legislatures, and that these 
rights are not confined to any class or race, but 
comprehend all within its scope. The general 
assembly o f Arkansas having provided the prim ary 
as a method fo r  the nomination o f candidates 
and this court having declared it when adopted 
an inseparable part o f the election machinery it 
would seem to necessarily follow  that the adop­
tion o f a rule by any political party cannot by 
delegation, or otherwise, give vitality to a claimed 
right which is in itself prohibited by the Constitu­
tion from  enacting into law.

In the question under consideration a political 
party assumes to delegate to itself legislative 
power, a power in itself unconstitutional both also 
in its purpose and effect, further power which the 
legislature itself d.oes not possess. The State may 
not provide otherwise than fo r  equal rights for 
suffrage in prim ary as well as general elections, 
this the Statute does, but the Dem ocratic party 
goes further as a political party, it asks fo r  the 
right o f enforcement o f a rule prescribed by its 
party prescribing qualifications to participate in 
prim ary elections forbidden under the Fifteenth 
Amendment to the Constitution o f the United 
States. A  law or a rule recognized by law which 
authorizes a discrim inatory test or standard does 
curtail and. subvert them and such a law or a rule 
sanctioned by law is in conflict with the Fourteenth 
and Fifteenth Amendments to the Constitution o f 
the United States.



34

W e hope that the facts are here presented so 
that this court can take full cognizance o f  this 
question and fix so definitely the rights o f the 
negroes to participate in prim ary election in A rk ­
ansas that no party within the State shall here­
after attempt by rule to abridge that right.

F or reasons stated herein we respectfully re­
quest that this case should be reversed.

J no . A. H ibbleb,
B ooker and B ooker,
S cipio A . J ones,

Solicitors fo r  Appellants.