1. The right of a citizen of the United States to vote for the
nomination of candidates for the United States Senate and House of
Representatives in a primary which is an integral part of the
elective process is a right secured by the Federal Constitution,
and this right of the citizen may not be abridged by the State on
account of his race or color. P.
321 U. S.
661.
2. Whether the exclusion of citizens from voting on account of
their race or color has been effected by action of the State --
rather than of individuals or of a political party -- is a question
upon which the decision of the courts of the State is not binding
on the federal courts, but which the latter must determine for
themselves. P.
321 U. S.
662.
3. Upon examination of the statutes of Texas regulating
primaries,
held: that the exclusion of Negroes from voting
in a Democratic primary to select nominees for a general election
-- although, by resolution of a state convention of the party, its
membership was limited to white citizens -- was State action in
violation of the Fifteenth Amendment.
Grove v. Townsend,
295 U. S. 45,
overruled. Pp.
321 U. S. 663,
321 U. S.
666.
When, as here, primaries become a part of the machinery for
choosing officials, state and federal, the same tests to
determine
Page 321 U. S. 650
the character of discrimination or abridgment should be applied
to the primary as are applied to the general election. P.
321 U. S.
664.
4. While not unmindful of the desirability of its adhering to
former decisions of constitutional questions, this Court is not
constrained to follow a previous decision which, upon
reexamination, is believed erroneous, particularly one which
involves the application of a constitutional principle, rather than
an interpretation of the Constitution to evolve the principle
itself. P.
321 U. S.
665.
131 F.2d 593, reversed.
Certiorari, 319 U.S. 738, to review the affirmance of a judgment
for the defendants in a suit for damages under 8 U.S.C. §
43.
MR. JUSTICE REED delivered the opinion of the Court.
This writ of certiorari brings here for review a claim for
damages in the sum of $5,000 on the part of petitioner, a Negro
citizen of the 48th precinct of Harris County, Texas,
Page 321 U. S. 651
for the refusal of respondents, election and associate election
judges, respectively, of that precinct, to give petitioner a ballot
or to permit him to cast a ballot in the primary election of July
27, 1940, for the nomination of Democratic candidates for the
United States Senate and House of Representatives, and Governor and
other state officers. The refusal is alleged to have been solely
because of the race and color of the proposed voter.
The actions of respondents are said to violate §§ 31
and 43 of Title 8 [
Footnote 1]
of the United States Code, 8 U.S.C. §§ 31 and 43, in that
petitioner was deprived of rights secured by §§ 2 and 4
of Article I [
Footnote 2] and
the Fourteenth, Fifteenth and Seventeenth Amendments
Page 321 U. S. 652
to the United States Constitution. [
Footnote 3] The suit was filed in the District Court of
the United States for the Southern District of Texas, which had
jurisdiction under Judicial Code § 24, subsection 14.
[
Footnote 4]
The District Court denied the relief sought, and the Circuit
Court of Appeals quite properly affirmed its action on the
authority of
Grovey v. Townsend, 295 U. S.
45. [
Footnote 5] We
granted the petition for certiorari to resolve a claimed
inconsistency between the decision in the
Grovey case and
that of
United States v. Classic, 313 U.
S. 299. 319 U.S. 738.
The State of Texas by its Constitution and statutes provides
that every person, if certain other requirements are met which are
not here in issue, qualified by residence
Page 321 U. S. 653
in the district or county "shall be deemed a qualified elector."
Constitution of Texas, Article VI, § 2; Vernon's Civil
Statutes (1939 ed.), Article 2955. Primary elections for United
States Senators, Congressmen and state officers are provided for by
Chapters Twelve and Thirteen of the statutes. Under these chapters,
the Democratic Party was required to hold the primary which was the
occasion of the alleged wrong to petitioner. A summary of the state
statutes regulating primaries appears in the footnote. [
Footnote 6] These nominations are to be
made by the qualified voters of the party. Art. 3101.
Page 321 U. S. 654
The Democratic Party of Texas is held by the Supreme Court of
that state to be a "voluntary association,"
Bell v. Hill,
123 Tex. 531, 534, protected by § 27 of the Bill of Rights,
Art. 1, Constitution of Texas, from interference by the state
except that:
"In the interest of fair methods and a fair expression by their
members of their preferences in the selection of their
Page 321 U. S. 655
nominees, the State may regulate such elections by proper
laws."
P. 545. That court stated further:
"Since the right to organize and maintain a political party is
one guaranteed by the Bill of Rights of this state, it necessarily
follows that every privilege essential or reasonably appropriate to
the exercise of that right is likewise
Page 321 U. S. 656
guaranteed, including, of course, the privilege of determining
the policies of the party and its membership. Without the privilege
of determining the policy of a political association and its
membership, the right to organize such an association would be a
mere mockery. We think these rights, that is, the right to
determine the membership of a political party and to determine its
policies, of necessity are to be exercised by the State Convention
of such party, and cannot, under any circumstances, be conferred
upon a state or governmental agency."
P. 546.
Cf. Waples v. Marrast, 108 Tex. 5, 184 S.W.
180.
The Democratic party, on May 24, 1932, in a state convention
adopted the following resolution, which has not since been
"amended, abrogated, annulled or avoided":
"Be it resolved that all white citizens of the State of Texas
who are qualified to vote under the Constitution and laws of the
State shall be eligible to membership in the
Page 321 U. S. 657
Democratic party and, as such, entitled to participate in its
deliberations."
It was by virtue of this resolution that the respondents refused
to permit the petitioner to vote.
Texas is free to conduct her elections and limit her electorate
as she may deem wise, save only as her action may be affected by
the prohibitions of the United States Constitution or in conflict
with powers delegated to and exercised by the National Government.
[
Footnote 7] The Fourteenth
Amendment forbids a state from making or enforcing any law which
abridges the privileges or immunities of citizens of the United
States and the Fifteenth Amendment specifically interdicts any
denial or abridgement by a state of the right of citizens to vote
on account of color. Respondents appeared in the District Court and
the Circuit Court of Appeals and defended on the ground that the
Democratic party of Texas is a voluntary organization, with members
banded together for the purpose of selecting individuals of the
group representing the common political beliefs as candidates in
the general election. As such a voluntary organization, it was
claimed, the Democratic party is free to select its own membership
and limit to whites participation in the party primary. Such
action, the answer asserted, does not violate the Fourteenth,
Fifteenth or Seventeenth Amendment, as officers of government
cannot be chosen at primaries, and the Amendments are applicable
only to general elections, where governmental officers are actually
elected. Primaries, it is said, are political party affairs,
handled by party, not governmental, officers. No appearance for
respondents is made in this Court. Arguments presented here by the
Attorney General of Texas and the Chairman of the State Democratic
Executive Committee of Texas, as
amici
Page 321 U. S. 658
curiae, urged substantially the same grounds as those
advanced by the respondents.
The right of a Negro to vote in the Texas primary has been
considered heretofore by this Court. The first case was
Nixon
v. Herndon, 273 U. S. 536. At
that time, 1924, the Texas statute, Art. 3093a, afterwards numbered
Art. 3107 (Rev.Stat.1925) declared "in no event shall a Negro be
eligible to participate in a Democratic party primary election . .
. in the State of Texas." Nixon was refused the right to vote in a
Democratic primary, and brought a suit for damages against the
election officers under R.S. § 1979 and 2004, the present
§§ 43 and 31 of Title 8, U.S.C., respectively. It was
urged to this Court that the denial of the franchise the Nixon
violated his Constitutional rights under the Fourteenth and
Fifteenth Amendments. Without consideration of the Fifteenth, this
Court held that the action of Texas in denying the ballot to
Negroes by statute was in violation of the equal protection clause
of the Fourteenth Amendment, and reversed the dismissal of the
suit.
The legislature of Texas reenacted the article, but gave the
State Executive Committee of a party the power to prescribe the
qualifications of its members for voting or other participation.
This article remains in the statutes. The State Executive Committee
of the Democratic party adopted a resolution that white Democrats
and none other might participate in the primaries of that party.
Nixon was refused again the privilege of voting in a primary, and
again brought suit for damages by virtue of § 31, Title 8
U.S.C. This Court again reversed the dismissal of the suit for the
reason that the Committee action was deemed to be State action, and
invalid as discriminatory under the Fourteenth Amendment. The test
was said to be whether the Committee operated as representative of
the State in the discharge of the State's authority.
Nixon v.
Condon, 286 U. S. 73. The
question of the inherent power
Page 321 U. S. 659
of a political party in Texas "without restraint by any law to
determine its own membership" was lift open.
Id.,
286 U. S.
84-85.
In
Grovey v. Townsend, 295 U. S.
45, this Court had before it another suit for damages
for the refusal in a primary of a county clerk, a Texas officer
with only public functions to perform, to furnish petitioner, a
Negro, an absentee ballot. The refusal was solely on the ground of
race. This case differed from
Nixon v. Condon, supra, in
that a state convention of the Democratic party had passed the
resolution of May 24, 1932, hereinbefore quoted. It was decided
that the determination by the state convention of the membership of
the Democratic party made a significant change from a determination
by the Executive Committee. The former was party action, voluntary
in character. The latter, as had been held in the
Condon
case, was action by authority of the State. The managers of the
primary election were therefore declared not to be state officials
in such sense that their action was state action. A state
convention of a party was said not to be an organ of the state.
This Court went on to announce that to deny a vote in a primary was
a mere refusal of party membership, with which "the state need have
no concern," loc.cit.
295 U. S. 55,
while for a state to deny a vote in a general election on the
ground of race or color violated the Constitution. Consequently,
there was found no ground for holding that the county clerk's
refusal of a ballot because of racial ineligibility for party
membership denied the petitioner any right under the Fourteenth or
Fifteenth Amendments.
Since
Grovey v. Townsend and prior to the present suit,
no case from Texas involving primary elections has been before this
Court. We did decide, however,
United States v. Classic,
313 U. S. 299. We
there held that § 4 of Article I of the Constitution
authorized Congress to regulate primary, as well as general,
elections, 313 U.S. at
313 U. S. 316,
313 U. S.
317,
Page 321 U. S. 660
"where the primary is by law made an integral part of the
election machinery." 313 U.S. at
313 U. S.
318=. Consequently, in the
Classic case, we
upheld the applicability to frauds in a Louisiana primary of
§§ 19 and 20 of the Criminal Code. Thereby, corrupt acts
of election officers were subjected to Congressional sanctions
because that body had power to protect rights of Federal suffrage
secured by the Constitution in primary as in general elections. 313
U.S. at
313 U. S. 323.
This decision depended, too, on the determination that, under the
Louisiana statutes, the primary was a part of the procedure for
choice of Federal officials. By this decision, the doubt as to
whether or not such primaries were a part of "elections" subject to
Federal control, which had remained unanswered since
Newberry
v. United States, 256 U. S. 232, was
erased. The
Nixon cases were decided under the equal
protection clause of the Fourteenth Amendment without a
determination of the status of the primary as a part of the
electoral process. The exclusion of Negroes from the primaries by
action of the State was held invalid under that Amendment. The
fusing by the
Classic case of the primary and general
elections into a single instrumentality for choice of officers has
a definite bearing on the permissibility under the Constitution of
excluding Negroes from primaries. This is not to say that the
Classic case cuts directly into the rationale of
Grovey v. Townsend. This latter case was not mentioned in
the opinion.
Classic bears upon
Grovey v.
Townsend not because exclusion of Negroes from primaries is
any more or less state action by reason of the unitary character of
the electoral process, but because the recognition of the place of
the primary in the electoral scheme makes clear that state
delegation to a party of the power to fix the qualifications of
primary elections is delegation of a state function that may make
the party's action the action of the state. When
Grovey v.
Townsend was written, the Court looked upon the denial of a
vote in a primary as a
Page 321 U. S. 661
mere refusal by a party of party membership. 295 U.S. at
295 U. S. 55. As
the Louisiana statutes for holding primaries are similar to those
of Texas, our ruling in
Classic as to the unitary
character of the electoral process calls for a reexamination as to
whether or not the exclusion of Negroes from a Texas party primary
was state action.
The statutes of Texas relating to primaries and the resolution
of the Democratic party of Texas extending the privileges of
membership to white citizens only are the same in substance and
effect today as they were when
Grovey v. Townsend was
decided by a unanimous Court. The question as to whether the
exclusionary action of the party was the action of the State
persists as the determinative factor. In again entering upon
consideration of the inference to be drawn as to state action from
a substantially similar factual situation, it should be noted that
Grovey v. Townsend upheld exclusion of Negroes from
primaries through the denial of party membership by a party
convention. A few years before, this Court refused approval of
exclusion by the State Executive Committee of the party. A
different result was reached on the theory that the Committee
action was state authorized, and the Convention action was
unfettered by statutory control. Such a variation in the result
from so slight a change in form influences us to consider anew the
legal validity of the distinction which has resulted in barring
Negroes from participating in the nominations of candidates of the
Democratic party in Texas. Other precedents of this Court forbid
the abridgement of the right to vote.
United States v.
Reese, 92 U. S. 214,
92 U. S. 217;
Neal v. Delaware, 103 U. S. 370,
103 U. S. 388;
Guinn v. United States, 238 U. S. 347,
238 U. S. 361;
Myers v. Anderson, 238 U. S. 368,
238 U. S. 379;
Lane v. Wilson, 307 U. S. 268.
It may now be taken as a postulate that the right to vote in
such a primary for the nomination of candidates without
discrimination by the State, like the right to vote
Page 321 U. S. 662
in a general election, is a right secured by the Constitution.
United States v. Classic, 313 U.S. at
313 U. S. 314;
Myers v. Anderson, 238 U. S. 368;
Ex parte Yarbrough, 110 U. S. 651,
110 U. S. 663
et seq. By the terms of the Fifteenth Amendment, that
right may not be abridged by any state on account of race. Under
our Constitution, the great privilege of the ballot may not be
denied a man by the State because of his color.
We are thus brought to an examination of the qualifications for
Democratic primary electors in Texas, to determine whether state
action or private action has excluded Negroes from participation.
Despite Texas' decision that the exclusion is produced by private
or party action,
Bell v. Hill, supra, Federal courts must
for themselves appraise the facts leading to that conclusion. It is
only by the performance of this obligation that a final and uniform
interpretation can be given to the Constitution, the "supreme Law
of the Land."
Nixon v. Condon, 286 U. S.
73,
286 U. S. 88;
Standard Oil Co. v. Johnson, 316 U.
S. 481,
316 U. S. 483;
Bridges v. California, 314 U. S. 252;
Lisenba v. California, 314 U. S. 219,
314 U. S. 238;
Union Pacific R. Co. v. United States, 313 U.
S. 450,
313 U. S. 467;
Milk Wagon Drivers Union v. Meadowmoor Dairies,
312 U. S. 287,
312 U. S. 294;
Chambers v. Florida, 309 U. S. 227,
309 U. S. 228.
Texas requires electors in a primary to pay a poll tax. Every
person who does so pay and who has the qualifications of age and
residence is an acceptable voter for the primary. Art. 2955. As
appears above in the summary of the statutory provisions set out in
note 6 Texas requires by the
law the election of the county officers of a party. These compose
the county executive committee. The county chairmen so selected are
members of the district executive committee and choose the chairman
for the district. Precinct primary election officers are named by
the county executive committee. Statutes provide for the election
by the voters of precinct
Page 321 U. S. 663
delegates to the county convention of a party and the selection
of delegates to the district and state conventions by the county
convention. The state convention selects the state executive
committee. No convention may place in platform or resolution any
demand for specific legislation without endorsement of such
legislation by the voters in a primary. Texas thus directs the
selection of all party officers.
Primary elections are conducted by the party under state
statutory authority. The county executive committee selects
precinct election officials and the county, district or state
executive committees, respectively, canvass the returns. These
party committees or the state convention certify the party's
candidates to the appropriate officers for inclusion on the
official ballot for the general election. No name which has not
been so certified may appear upon the ballot for the general
election as a candidate of a political party. No other name may be
printed on the ballot which has not been placed in nomination by
qualified voters who must take oath that they did not participate
in a primary for the selection of a candidate for the office for
which the nomination is made.
The state courts are given exclusive original jurisdiction of
contested elections and of mandamus proceedings to compel party
officers to perform their statutory duties.
We think that this statutory system for the selection of party
nominees for inclusion on the general election ballot makes the
party which is required to follow these legislative directions an
agency of the state in so far as it determines the participants in
a primary election. The party takes its character as a state agency
from the duties imposed upon it by state statutes; the duties do
not become matters of private law because they are performed by a
political party. The plan of the Texas primary follows
substantially that of Louisiana, with the exception that, in
Page 321 U. S. 664
Louisiana, the state pays the cost of the primary, while Texas
assesses the cost against candidates. In numerous instances, the
Texas statutes fix or limit the fees to be charged. Whether paid
directly by the state or through state requirements, it is state
action which compels. When primaries become a part of the machinery
for choosing officials, state and national, as they have here, the
same tests to determine the character of discrimination or
abridgement should be applied to the primary as are applied to the
general election. If the state requires a certain electoral
procedure, prescribes a general election ballot made up of party
nominees so chosen and limits the choice of the electorate in
general elections for state offices, practically speaking, to those
whose names appear on such a ballot, it endorses, adopts and
enforces the discrimination against Negroes, practiced by a party
entrusted by Texas law with the determination of the qualifications
of participants in the primary. This is state action within the
meaning of the Fifteenth Amendment.
Guinn v. United
States, 238 U. S. 347,
238 U. S.
362.
The United States is a constitutional democracy. Its organic law
grants to all citizens a right to participate in the choice of
elected officials without restriction by any state because of race.
This grant to the people of the opportunity for choice is not to be
nullified by a state through casting its electoral process in a
form which permits a private organization to practice racial
discrimination in the election. Constitutional rights would be of
little value if they could be thus indirectly denied.
Lane v.
Wilson, 307 U. S. 268,
307 U. S.
275.
The privilege of membership in a party may be, as this Court
said in
Grovey v. Townsend, 295 U. S.
45,
295 U. S. 55, 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
Page 321 U. S. 665
of the party the action of the state. In reaching this
conclusion, we are not unmindful of the desirability of continuity
of decision in constitutional questions. [
Footnote 8] However, when convinced of former error,
this Court has never felt constrained to follow precedent. In
constitutional questions, where correction depends upon amendment,
and not upon legislative action, this Court throughout its history
has freely exercised its power to reexamine the basis of its
constitutional decisions. This has long been accepted practice,
[
Footnote 9] and this practice
has continued to this day. [
Footnote 10] This is particularly true when the decision
believed erroneous is the application of a constitutional
principle, rather
Page 321 U. S. 666
than an interpretation of the Constitution to extract the
principle itself. [
Footnote
11] Here, we are applying, contrary to the recent decision in
Grovey v. Townsend, the well established principle of the
Fifteenth Amendment, forbidding the abridgement by a state of a
citizen's right to vote.
Grovey v. Townsend is
overruled.
Judgment reversed.
MR. JUSTICE FRANKFURTER concurs in the result.
[
Footnote 1]
8 U.S.C. § 31:
"All citizens of the United States who are otherwise qualified
by law to vote at any election by the people in any State,
Territory, district, county, city, parish, township, school
district, municipality, or other territorial 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."
"§ 43:"
"Every person who, under color of any statute, ordinance,
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 equity, or other proper proceeding for redress."
[
Footnote 2]
Constitution, Art. I:
"Section 2. The House of Representatives shall be composed of
Members chosen every second Year by the People of the several
States, and the Electors in each State shall have the
Qualifications requisite for Electors of the most numerous Branch
of the State Legislature."
"
* * * *"
"Section 4. The Times, Places and Manner of holding Elections
for Senators and Representatives shall be prescribed in each State
by the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of chusing
Senators."
[
Footnote 3]
Constitution:
"Article XIV. Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."
"Article XV. Section 1. The right of citizens of the United
States to vote shall not be denied or abridged by the United States
or by any State on account of race, color, or previous condition of
servitude."
"Section 2. The Congress shall have power to enforce this
article by appropriate legislation."
"Article XVII. The Senate of the United States shall be composed
of two Senators from each state, elected by the people thereof, for
six years; and each Senator shall have one vote. The electors in
each state shall have the qualifications requisite for electors of
the most numerous branch of the state legislatures."
[
Footnote 4]
A declaratory judgment also was sought as to the
constitutionality of the denial of the ballot. The judgment entered
declared the denial was constitutional. This phase of the case is
not considered further, as the decision on the merits determines
the legality of the action of the respondents.
[
Footnote 5]
Smith v. Allwright, 131 F.2d 593.
[
Footnote 6]
The extent to which the state controls the primary election
machinery appears from the Texas statutes, as follows: Art. 3118,
Vernon's Texas Statutes, provides for the election of a county
chairman for each party holding a primary by the "qualified voters
of the whole county," and of one member of the party's county
executive committee by the "qualified voters of their respective
election precincts." These officers have direct charge of the
primary. There is, in addition, statutory provision for a party
convention: the voters in each precinct choose delegates to a
county convention, and the latter chooses delegates to a state
convention. Art. 3134. The state convention has authority to choose
the state executive committee and its chairman. Art. 3139, 1939
Supp. Candidates for offices to be filled by election are required
to be nominated at a primary election if the nominating party cast
over 100,000 votes at the preceding general election. Art. 3101.
The date of the primary is fixed at the fourth Saturday in July; a
majority is required for nomination, and if no candidate receives a
majority, a run-off primary between the two highest standing
candidates is held on the fourth Saturday in August. Art. 3102.
Polling places may not be within a hundred yards of those used by
the opposite party. Art. 3103. Each precinct primary is to be
conducted by a presiding judge and the assistants he names. These
officials are selected by the county executive committee. Art.
3104. Absentee voting machinery provided by the state for general
elections is also used in primaries. Art. 2956. The presiding
judges are given legal authority similar to that of judges at
general elections.
Compare Art. 3105
with Art.
3002. The county executive committee may decide whether county
officers are to be nominated by majority or plurality vote. Art.
3106. The state executive committee is given power to fix
qualifications of party membership, Art. 3107; Art. 2955, 1942
Supp., requires payment of a poll tax by voters in primary
elections, and Art. 3093(3) deals with political qualifications of
candidates for nomination for United States Senator.
But cf.
Bell v. Hill, 123 Tex. 531, 74 S.W.2d 113. Art. 3108 empowers
the county committee to prepare a budget covering the cost of the
primary and to require each candidate to pay a fair share. The form
of the ballot is prescribed by Art. 3109. Art. 3101 provides that
the nominations be made by the qualified voters of the party.
Cf. Art. 3091. Art. 3110 prescribes a test for voters who
take part in the primary. It reads as follows:
"No official ballot for primary election shall have on it any
symbol or device or any printed matter, except a uniform primary
test, reading as follows:"
" I am a . . . (inserting name of political party or
organization of which the voter is a member) and pledge myself to
support the nominee of this primary;"
"and any ballot which shall not contain such printed test above
the names of the candidates thereon, shall be void and shall not be
counted."
This appears, however, to be a morally, rather than a legally,
enforceable pledge.
See Love v. Wilcox, 119 Tex. 256, 28
S.W.2d 515, 70 A.L.R. 1484.
Arts. 3092 and 3111 to 3114 deal with the mechanics of procuring
a place on the primary ballot for federal, state, district, or
county office. The request for a place on the ballot may be made to
the state, district, or county party chairman, either by the person
desiring nomination or by twenty-five qualified voters. The ballot
is prepared by a subcommittee of the county executive committee.
Art. 3115. A candidate must pay his share of the expenses of the
election before his name is placed on the ballot. Art. 3116. Art.
3116, however, limits the sum that may be charged candidates for
certain posts, such as the offices of district judge, judge of the
Court of Civil Appeals, and senator and representative in the state
and federal legislatures, and for some counties fees are fixed by
Arts. 3116a-3116d, 1939 Supp., and 3116e, 3116f, 1942 Supp.
Supplies for the election are distributed by the county committee,
Art. 3119, and Art. 3120 authorizes the use of voting booths,
ballot boxes and guard rails, prepared for the general
election,
"for the organized political party nominating by primary
election that cast over one hundred thousand votes at the preceding
general election."
The county tax collector must supply lists of qualified voters
by precincts; and these lists must be used at the primary. Art.
3121. The same precautions as to secrecy and the care of the
ballots must be observed in primary as in general elections. Art.
3122. Arts. 3123-3125 cover the making of returns to the county and
state chairmen and canvass of the result by the county committee.
By Art. 3127, a statewide canvass is required of the state
executive committee for state and district officers and a similar
canvass by the state convention, with respect to state officers, is
provided by Art. 3138. The nominations for district offices are
certified to the county clerks, and for state officers to the
Secretary of State. Arts. 3127, 3137, 3138. Ballot boxes and
ballots are to be returned to the county clerk, Art. 3128, 1942
Supp., and, upon certification by the county committee, the county
clerk must publish the result. Art. 3129, 1942 Supp. If no
objection is made within five days, the name of the nominee is then
to be placed on the official ballot by the county clerk. Art. 3131,
1942 Supp.
Cf. Arts. 2978, 2984, 2992, 2996. Arts.
3146-3153, 1942 Supp., provide for election contests. The state
district courts have exclusive original jurisdiction, and the Court
of Civil Appeals has appellate jurisdiction. The state courts are
also authorized to issue writs of mandamus to require executive
committees, committeemen, and primary officers to discharge the
duties imposed by the statute. Art. 3142;
cf. Art.
3124.
The official ballot is required to contain parallel columns for
the nominees of the respective parties, a column for independent
candidates, and a blank column for such names as the voters care to
write in. Arts. 2978, 2980. The names of nominees of a party
casting more than 100,000 votes at the last preceding general
election may not be printed on the ballot unless they were chosen
at a primary election. Art. 2978. Candidates who are not party
nominees may have their names printed on the ballot by complying
with Arts. 3159-62. These sections require applications to be filed
with the Secretary of State, county judge, or mayor, for state and
district, county, and city offices, respectively. The applications
must be signed by qualified voters to the number of from one to
five percent of the ballots cast at the preceding election,
depending on the office. Each signer must take an oath to the
effect that he did not participate in a primary at which a
candidate for the office in question was nominated. While this
requirement has been held to preclude one who has voted in the
party primary from appearing on the ballot as an independent,
Westerman v. Mims, 111 Tex. 29, 227 S.W. 178;
see
Cunningham v. McDermett, (Civ.App.), one who lost at the
primary may still be elected at the general election by a write-in
vote.
Cunningham v. McDermett, supra.
The operations of the party are restricted by the state in one
other important respect. By Act. 3139, 1939 Supp., the state
convention can announce a platform of principles, but its
submission at the primary is a prerequisite to party advocacy of
specific legislation. Art. 3133.
[
Footnote 7]
Cf. Parker v. Brown, 317 U. S. 341,
317 U. S.
359-360.
[
Footnote 8]
Cf. Pollock v. Farmers Loan & Trust Co.,
157 U. S. 429,
157 U. S.
652.
[
Footnote 9]
See cases collected in the dissenting opinion in
Burnet v. Coronado Oil & Gas Co., 285 U.
S. 393,
285 U. S.
410.
[
Footnote 10]
See e.g., United States v. Darby, 312 U.
S. 100,
overruling Hammer v. Dagenhart,
247 U. S. 251;
California v. Thompson, 313 U. S. 109,
overruling Di Santo v. Pennsylvania, 273 U. S.
34;
West Coast Hotel Co. v. Parrish,
300 U. S. 379,
overruling Adkins v. Children's Hospital, 261 U.
S. 525;
Helvering v. Mountain Producers Corp.,
303 U. S. 376,
overruling Gillespie v. Oklahoma, 257 U.
S. 501,
and Burnet v. Coronado Oil & Gas
Co., 285 U. S. 393;
Erie R. Co. v. Tompkins, 304 U. S. 64,
overruling 41 U. S. Tyson,
16 Pet. 1;
Graves v. New York ex rel. O'Keefe,
306 U. S. 466,
overruling 78 U. S. Day and
New York ex rel. Rogers v. Graves, 299 U.
S. 401;
O'Malley v. Woodrough, 307 U.
S. 277,
overruling Miles v. Graham,
268 U. S. 501;
Madden v. Kentucky, 309 U. S. 83,
overruling Colgate v. Harvey, 296 U.
S. 404;
Helvering v. Hallock, 309 U.
S. 106,
overruling Helvering v. St. Louis Union
Trust Co., 296 U. S. 39,
and Becker v. St. Louis Union Trust Co., 296 U. S.
48;
Nye v. United States, 313 U. S.
33,
overruling Toledo Newspaper Co. v. United
States, 247 U. S. 402;
Alabama v. King & Boozer, 314 U. S.
1,
overruling Panhandle Oil Co. v. Knox,
277 U. S. 218,
and Graves v. Texas Co., 298 U. S. 393;
Williams v. North Carolina, 317 U.
S. 287,
overruling Haddock v. Haddock,
201 U. S. 562;
State Tax Commission v. Aldrich, 316 U.
S. 174,
overruling First National Bank v.
Maine, 284 U. S. 312;
West Virginia State Board of Education v. Barnette,
319 U. S. 624,
overruling Minersville School District v. Gobitis,
310 U. S. 586.
[
Footnote 11]
Cf. dissent in
Burnet v. Coronado Oil & Gas
Co., 285 U. S. 393 at
285 U. S.
410.
MR. JUSTICE ROBERTS.
In
Mahnich v. Southern Steamship Co., 321 U. S.
96, I have expressed my views with respect to the
present policy of the court freely to disregard and to overrule
considered decisions and the rules of law announced in them. This
tendency, it seems to me, indicates an intolerance for what those
who have composed this court in the past have conscientiously and
deliberately concluded, and involves an assumption that knowledge
and wisdom reside in us which was denied to our predecessors. I
shall not repeat what I there said, for I consider it fully
applicable to the instant decision, which but points the moral
anew.
A word should be said with respect to the judicial history
forming the background of
Grovey v. Townsend, 295 U. S.
45, which is now overruled.
In 1923, Texas adopted a statute which declared that no negro
should be eligible to participate in a Democratic Primary election
in that State. A negro, a citizen of the United States and of
Texas, qualified to vote, except for the provisions of the statute,
was denied the opportunity to vote in a primary election at which
candidates were to be chosen for the offices of senator and
representative in the Congress of the United States. He brought
action against the judges of election in a United States court
for
Page 321 U. S. 667
damages for their refusal to accept his ballot. This court
unanimously reversed a judgment dismissing the complaint and held
that the judges acted pursuant to State law and that the State of
Texas, by its statute, had denied the voter the equal protection
secured by the Fourteenth Amendment.
Nixon v. Herndon,
273 U. S. 536
(1927).
In 1927, the legislature of Texas repealed the provision
condemned by this court and enacted that every political party in
the State might, through its Executive Committee, prescribe the
qualifications of its own members and determine in its own way who
should be qualified to vote or participate in the party, except
that no denial of participation could be decreed by reason of
former political or other affiliation. Thereupon, the State
Executive Committee of the Democratic Party in Texas adopted a
resolution that white Democrats, and no other, should be allowed to
participate in the party's primaries.
A negro whose primary ballot was rejected pursuant to the
resolution sought to recover damages from the judges who had
rejected it. The United States District Court dismissed his action
and the Circuit Court of Appeals affirmed, but this court reversed
the judgment and sustained the right of action by a vote of 5 to 4.
Nixon v. Condon, 286 U. S. 73
(1932).
The opinion was written with care. The court refused to decide
whether a political party in Texas had inherent power to determine
its membership. The court said, however: "Whatever inherent power a
state political party has to determine the content of its
membership resides in the state convention," and referred to the
statutes of Texas to demonstrate that the State had left the
Convention free to formulate the party faith. Attention was
directed to the fact that the statute under attack did not leave to
the party convention the definition of party membership, but placed
it in the party's State Executive Committee, which could not, by
any stretch of reasoning, be
Page 321 U. S. 668
held to constitute the party. The court held, therefore, that
the State Executive Committee acted solely by virtue of the
statutory mandate and as delegate of State power, and again struck
down the discrimination against negro voters as deriving force and
virtue from State action -- that is, from statute.
In 1932, the Democratic Convention of Texas adopted a resolution
that
"all white citizens of the State of Texas who are qualified to
vote under the Constitution and laws of the state shall be eligible
to membership in the Democratic party, and, as such, entitled to
participate in its deliberations."
A negro voter qualified to vote in a primary election, except
for the exclusion worked by the resolution, demanded an absentee
ballot which he was entitled to mail to the judges at a primary
election except for the resolution. The county clerk refused to
furnish him a ballot. He brought an action for damages against the
clerk in a state court. That court, which was the tribunal having
final jurisdiction under the laws of Texas, dismissed his
complaint, and he brought the case to this court for review. After
the fullest consideration by the whole court,
* an opinion was
written representing its unanimous views and affirming the
judgment.
Grovey v. Townsend, 295 U. S.
45 (1935).
I believe it will not be gainsaid the case received the
attention and consideration which the questions involved demanded,
and the opinion represented the views of all the justices. It
appears that those views do not now commend themselves to the
court. I shall not restate them. They are exposed in the opinion,
and must stand or fall on their merits. Their soundness, however,
is not a matter which presently concerns me.
Page 321 U. S. 669
The reason for my concern is that the instant decision,
overruling that announced about nine years ago, tends to bring
adjudications of this tribunal into the same class as a restricted
railroad ticket, good for this day and train only. I have no
assurance, in view of current decisions, that the opinion announced
today may not shortly be repudiated and overruled by justices who
deem they have new light on the subject. In the present term, the
court has overruled three cases.
In the present case, as in
Mahnich v. Southern S.S.
Co., the court below relied, as it was bound to, upon our
previous decision. As that court points out, the statutes of Texas
have not been altered since
Grovey v. Townsend was
decided. The same resolution is involved as was drawn in question
in
Grovey v. Townsend. Not a fact differentiates that case
from this except the names of the parties.
It is suggested that
Grovey v. Townsend was overruled
sub silentio in
United States v. Classic,
313 U. S. 299. If
so, the situation is even worse than that exhibited by the outright
repudiation of an earlier decision, for it is the fact that, in the
Classic case,
Grovey v. Townsend was
distinguished in brief and argument by the Government without
suggestion that it was wrongly decided, and was relied on by the
appellees not as a controlling decision, but by way of analogy. The
case is not mentioned in either of the opinions in the
Classic case. Again and again, it is said in the opinion
of the court in that case that the voter who was denied the right
to vote was a fully qualified voter. In other words, there was no
question of his being a person entitled under state law to vote in
the primary. The offense charged was the fraudulent denial of his
conceded right by an election officer because of his race. Here,
the question is altogether different. It is whether, in a
Democratic primary, he who tendered his vote was a member of the
Democratic Party.
Page 321 U. S. 670
I do not stop to call attention to the material differences
between the primary election laws of Louisiana under consideration
in the
Classic case and those of Texas which are here
drawn in question. These differences were spelled out in detail in
the Government's brief in the
Classic case and emphasized
in its oral argument. It is enough to say that the Louisiana
statutes required the primary to be conducted by State officials
and made it a State election, whereas, under the Texas statute, the
primary is a party election conducted at the expense of members of
the party and by officials chosen by the party. If this court's
opinion in the
Classic case discloses its method of
overruling earlier decisions, I can only protest that, in fairness,
it should rather have adopted the open and frank way of saying what
it was doing than, after the event, characterize its past action as
overruling
Grovey v. Townsend though those less sapient
never realized the fact.
It is regrettable that, in an era marked by doubt and confusion,
an era whose greatest need is steadfastness of thought and purpose,
this court, which has been looked to as exhibiting consistency in
adjudication and a steadiness which would hold the balance even in
the face of temporary ebbs and flows of opinion, should now itself
become the breeder of fresh doubt and confusion in the public mind
as to the stability of our institutions.
* The court was composed of Hughes, C.J., Van Devanter,
McReynolds, Brandeis, Sutherland, Butler, Stone, Roberts and
Cardozo, JJ.