Primary Colors

I'll be teaching a class on constitutional rights at Bellarmine University this fall. While preparing, and as we all struggle to survive what seems like a never-ending primary election season, a line of Supreme Court cases dealing with primary election discrimination grabbed my attention.

In the 1920s, Texas passed a law explicitly prohibiting African Americans from participating in Democratic party primary elections:

[I]n no event shall a negro be eligible to participate in a Democratic primary election held in the State of Texas.

At the time, the Democrats totally dominated Texas politics and the primaries were often more important than the general elections because Republicans (still then the "party of Lincoln") had no chance. The Ku Klux Klan had also grown very powerful in the state, so much so that an avowed knight of the order, Earl Mayfield, won the Democratic primary for U.S. senate in 1922 (and then defeated another Democrat who switched parties for the general election).

Excluding black voters from the Democratic primaries essentially negated their right to vote in any meaningful way, and even though they were still able to vote in the general election, the Texas law was a blatant violation of the Fifteenth Amendment (which explicitly prohibits racial discrimination in voting). Not only that, but it also violated the Fourteenth Amendment, which requires equal protection under the law.

In a case called Nixon v. Herndon, Justice Oliver Wendell Holmes, writing for a unanimous Supreme Court in 1927, said of the Texas law:

We find it unnecessary to consider the Fifteenth Amendment, because it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth… The statute of Texas…assumes to forbid negroes to take part in a primary election…, discriminating against them by the distinction of color alone. States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case.

The Supreme Court ruled clearly: an explicit legislative exclusion of African Americans from the primary process was unconstitutional. So Texas, still dominated by racist Democrats and the Klan, tried again. A new law was passed the same year as the Herndon decision stating that "every political party...shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote..." (Article 3110, Revised Civil Statutes of Texas).

With this legislative hall pass in hand, the Democratic Party of Texas updated their membership rules in 1928:

Be it resolved that all white democrats who are qualified under the Constitution and laws of Texas and who subscribe to the statutory pledge provided in Article 3110, Revised Civil Statutes of Texas, and none other, be allowed to participate in the primary elections.

The new rule excluded blacks from being members of the Democratic party, and thus excluded them from participating in the Democratic primaries (which were closed to non-members), and thus excluded them from effectively participating in the electoral politics of their state.

Another lawsuit followed, and once again, it reached the Supreme Court, this time as Nixon v. Condon in 1932. In a 5-4 majority opinion, Justice Benjamin Cardozo (joined by Hughes, Brandeis, Stone, and Roberts) rejected this new discrimination-through-proxy scheme and struck it down:

The test is not whether the members of the [Democratic Party] Executive Committee are the representatives of the State in the strict sense…. The test is whether they are to be classified as representatives of the State to such an extent and in such a sense that the great restraints of the Constitution set limits to their action. [This] case is seen to be ruled by Nixon v. Herndon. Delegates of the State's power have discharged their official functions in such a way as to discriminate invidiously between white citizens and black. The Fourteenth Amendment, adopted as it was with special solicitude for the equal protection of members of the Negro race, lays a duty upon the court to level by its judgment these barriers of color.

As "delegates of the State's power," the Democratic Party's actions brought it within the prohibitions of the constitution. Such delegation was not particularly hidden, either, because the nefarious party resolution actually cited the enabling Texas statute.

Undeterred by two straight losses, the Texas Democrats took a different, more clever tack. At the party convention of 1932, they issued a new resolution which omitted any language specifically excluding blacks from the party and any reference to Texas state law:

Be it resolved that all white citizens of Texas who are qualified to vote under the Constitution and laws of the state shall be eligible to membership in the Democratic party and as such entitled to participate in its deliberations.

Despite the change in language, the effect was the same. Black voters couldn't be Democrats or vote in the Democratic primary, which was still the only meaningful electoral contest in Texas.

A third lawsuit against this "white primary" rule reached the Supreme Court as Grovey v. Townsend. But though the composition of the Court was identical to that which decided Condon, the challengers fared far worse. This time a unanimous Court ruled against black voters and in favor of the Texas Democrats.

Why? Because now the Court found no state action involved, either direct or through delegation of power. Political parties are private entities. As private entities, they can make their own rules. According to Justice Owen Roberts, writing for the Court:

The legislative assembly of the state…has never attempted to prescribe or to limit the membership of a political party, and it is now settled that it has no power so to do… We are not prepared to hold that, in Texas, the state convention of a party has become a mere instrumentality or agency for expressing the voice or will of the state… The argument is that, as a negro may not be denied a ballot at a general election on account of his race or color, if exclusion from the primary renders his vote at the general election insignificant and useless, the result is to deny him the suffrage altogether. So to say is to confuse the privilege of membership in a party with the right to vote for one who is to hold a public office. With the former, the state need have no concern…

The Democratic Party was allowed to make its own rules and as long as Texas wasn't compelling them or enabling them to discriminate, the Court viewed itself as powerless to intervene.

African Americans could now effectively be excluded from the political process in Texas despite the Fifteenth Amendment.

But years later, in a case arising in a different state with a very different set of facts, the constitutional climate changed. In 1940, Louisiana election officials were charged with a federal crime for altering and miscounting ballots in a Democratic primary election. The indictments could only be upheld if the primary election was considered to implicate a right "secured by the Constitution."

Louisiana was much like Texas in that the Democratic party was so dominant that the only meaningful elections were Democratic primaries. As such, an official's interference with that process interfered with voters' constitutional right to vote. Writing for the Court in United States v. Classic, Justice Harlan Stone explained:

Unless the constitutional protection of the integrity of ‘elections’ extends to primary elections, Congress is left powerless to effect the constitutional purpose, and the popular choice of representatives is stripped of its constitutional protection…
[A] primary election which involves a necessary step in the choice of candidates for election…, and which…controls that choice, is an election within the meaning of the constitutional provision...

And thus the landscape had shifted, and a new challenge to the Texas party rule was possible. Like in Louisiana, the Democrats controlled Texas so totally that their primary elections were de facto general elections. Though United States v. Classic involved no racial discrimination, the case became a weapon against the exclusion of black voters.

A fourth challenge to the Democrats' scheme was launched and reached the Supreme Court as Smith v. Allwright in 1944. The 1932 party resolution attacked in Grovey was still in effect, but this time it did not survive.

Justice Stanley Reed delivered the near-unanimous opinion of the Court:

This grant to the people of the opportunity for choice is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied. The privilege of membership in a party may be, as this Court said in Grovey v. Townsend, no concern of a state. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the state makes the action of the party the action of the state.

States are prohibited by the Fourteenth and Fifteenth Amendments from discriminating by race, so, as a state action, the racist Democratic Party resolution was unconstitutional.

Finally, after more than twenty years, the Texas "white primary," and all explicitly racial primary election exclusions like it, was struck down. Of course, other, more oblique schemes (like the literacy test) would survive until the Voting Rights Act was passed in 1965, but a significant hurdle to full electoral participation by African Americans had finally fallen.