|Terry v. Adams
193 F.2d 600, reversed.
[ Black ]
[ Frankfurter ]
[ Clark ]
[ Minton ]
Terry v. Adams
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
MR. JUSTICE CLARK, with whom THE CHIEF JUSTICE, MR. JUSTICE REED, and MR. JUSTICE JACKSON join, concurring.
The issue is whether the Jaybird Democratic Association of Fort Bend County, Texas, by excluding Negroes from its primaries, has denied to Negro citizens of the county a right to vote secured by the Fifteenth Amendment. [p478] On March 16, 1950, petitioners, on behalf of themselves and similarly situated Negro citizens in Fort Bend County, instituted a class action against respondents, individually and as officers of the Jaybird Democratic Association. [n1] The complaint, in substance, charged that the Negro petitioners were duly qualified voters of the State of Texas who, for many years and solely because of their race and color, had been denied the right to vote in the primaries of the Association, a political party. Contending that these practices transgressed the Constitution and laws of the United States, [n2] petitioners sought declaratory and injunctive relief. [n3] Respondents insisted [p479] that the Jaybird Democratic Association was not a political party regulated by Texas statutes, but merely a private voluntary group. The District Court held that the Jaybird Democratic Association was a political party, and ruled its discriminatory exclusion of Negroes from the primary invalid. [n4] Judgment accordingly entered declared petitioners legally entitled to vote in the Jaybird primary. The District Court refused an injunction, but retained jurisdiction to grant further appropriate relief. [n5] The Court of Appeals reversed; in [p480] its view, the discriminatory exclusions were not reached by the terms of the Constitution and congressional enactments. [n6]
An old pattern in new guise is revealed by the record. [n7] The Jaybird Democratic Association of Fort Bend County was founded in 1889 to promote "good government" in the post-Reconstruction period. During its entire lifespan, the Association has restricted membership to whites. In earlier years, the members, at mass meetings, determined their choice of candidates to support at forthcoming official elections. Subsequently, the Association developed a system closely paralleling the structure of the Democratic Party. The Association is governed by an Executive Committee of twenty-two persons, one from each voting precinct in the county. The Committee in each election year sets the date of the Jaybird primary for selecting by ballot the candidates to be endorsed by the Association for public office in the county. The machinery of the Jaybird Democratic Association primary now differs from the state-regulated Democratic Party primary mainly in the Association's prohibition of more than two consecutive terms for officeholders, the absence of a pledge on the ballot at the Jaybird primary, and the Association's practice of not officially filing as a ticket the names of candidates successful in its balloting. And, for more than a half century, the Association has adhered to its guiding principle: to deny the Negro voters of Fort Bend County any effective voice in their government.
The Court of Appeals, in reversing the District Court, largely relied on what it deemed
the settled course of decision culminating in Collins v. Hardyman, 341 U.S. [p481] 651, . . . that it was not against individual, but against state, action that the Fourteenth and Fifteenth Amendments and 8 U.S.C.A. §§ 43 and 47 were, and are, directed. [n8]
But Collins dealt not with racial discrimination at the ballot box, but merely "a lawless political brawl, precipitated by a handful of white citizens against other white Citizens." 341 U.S. at 662. In any event, Collins adjudicated that Congress, in the narrow class of conspiracies defined by the Civil Rights Statutes, had not included the conspiracy charged in that particular complaint; expressly refraining from constitutional questions, ibid., that case cannot be held controlling here. [n9]
In our view, the Court of Appeals has misconceived the thrust of our recent decisions. The Fifteenth Amendment secures the franchise exercised by citizens of the United States against abridgment by any state on the basis of race or color. In Smith v. Allwright, 321 U.S. 649 (1944), this Court held that the Democratic Party of itself, and perforce any other political party, is prohibited by that Amendment from conducting a racially discriminatory primary election. By the rule of that case, any "part of the machinery for choosing officials" becomes subject to the Constitution's restraints. Id. at 664. There, as here, we dealt with an organization that took the form of "voluntary association" of unofficial character. But because, in fact, it functioned as a part of the state's electoral machinery, we held it controlled [p482] by the same constitutional limitations that ruled the official general election.
We agree with Chief District Judge Kennerly that the Jaybird Democratic Association is a political party [n10] whose activities fall within the Fifteenth Amendment's self-executing ban. See Guinn v. United States, 238 U.S. 347, 363 (1915); Myers v. Anderson, 238 U.S. 368, 379-380 (1915). [n11] Not every private club, association or league organized to influence public candidacies or political action must conform to the Constitution's restrictions on political parties. Certainly, a large area of freedom permits peaceable assembly and concerted private action for political purposes to be exercised separately by white and colored citizens alike. More, however, is involved here.
The record discloses that the Jaybird Democratic Association operates as part and parcel of the Democratic Party, an organization existing under the auspices of Texas law. [n12] Each maintains the same basic qualification for membership: eligibility to vote under Texas law. Although the state Democratic Party in Texas since Smith v. Allwright, supra, no longer can restrict its membership to whites, the Jaybird Democratic Association bars Negroes from its ranks. In May of each election year, it conducts a full-scale white primary in which each candidate campaigns for his candidacy subject to the action of that primary and the Democratic primary of July, linking [p483] the two primaries together. After gaining the Jaybird Democratic Association's endorsement, the announced winners after full publicity then file in the July Democratic primary. The record reveals that 3,910 eligible voters were listed in Fort Bend County in the presidential year 1944; though only 2,032 participated in the July primary under the Democratic banner, 3,790 members voted in the May balloting of the Jaybird Democratic Association. In 1946, an off-year for presidential balloting, eligible voters numbered 4,460; the Association's May primary polled 3,309 votes, and the Democratic July primary counted but 2,996. And while the lists in 1948, again a presidential year, show only 3,856 eligible electors in the County, the Jaybird primary mustered a total vote of 4,055, compared with 3,108 in the primary voting in July. Significantly, since 1889, the winners of the Jaybird Democratic Association balloting, with but a single exception shown by this record, [n13] ran unopposed, and invariably won in the Democratic July primary and the subsequent general elections for county-wide office.
Quite evidently, the Jaybird Democratic Association operates as an auxiliary of the local Democratic Party organization, selecting its nominees and using its machinery for carrying out an admitted design of destroying the weight and effect of Negro ballots in Fort Bend [p484] County. To be sure, the Democratic primary and the general election are nominally open to the colored elector. But his must be an empty vote cast after the real decisions are made. And because the Jaybird-indorsed nominee meets no opposition in the Democratic primary, the Negro minority's vote is nullified at the sole stage of the local political process where the bargaining and interplay of rival political forces would make it count.
The Jaybird Democratic Association device, as a result, strikes to the core of the electoral process in Fort Bend County. Whether viewed as a separate political organization or as an adjunct of the local Democratic Party, the Jaybird Democratic Association is the decisive power in the county's recognized electoral process. Over the years, its balloting has emerged as the locus of effective political choice. Consonant with the broad and lofty aims of its Framers, the Fifteenth Amendment, as the Fourteenth, "refers to exertions of state power in all forms." Shelley v. Kraemer, 334 U.S. 1, 20 (1948). Accordingly, when a state structures its electoral apparatus in a form which devolves upon a political organization the uncontested choice of public officials, that organization itself, in whatever disguise, takes on those attributes of government which draw the Constitution's safeguards into play. Smith v. Allwright, supra, at 664; cf. United States v. Classic, 313 U.S. 299, 324 (1941); Lane v. Wilson, 307 U.S. 268, 275 (1939).
In sum, we believe that the activities of the Jaybird Democratic Association fall within the broad principle laid down in Smith v. Allwright, supra. For that reason, we join the judgment of the Court.
1. See Fed.Rules Civ.Proc. 23.
2. Petitioners mainly rested their claims on the Fourteenth and Fifteenth Amendments, and 8 U.S.C. § 31.
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.
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.
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.
3. 28 U.S.C. (Supp. V) §§ 1331, 2201. Petitioners abandoned a claim to money damages, apparently grounded on 8 U.S.C. §§ 43 47.
4. 490 F.Supp. 595 (D.C.S.D.Tex.1950). The District Judge supported his conclusions by reference to Art. 3163, Vernon's Texas Civil Statutes (1925):
Art. 3163. Parties without State organization
Any political party without a State organization desiring to nominate candidates for county and precinct offices only may nominate such candidates therefor under the provisions of this title by primary elections or by a county convention held on the legal primary election day, which convention shall be composed of delegates from various election precincts in said county, elected therein at primary conventions held in such precincts between the hours of eight a.m. and ten p.m. of the preceding Saturday. All nominations made by any such parties shall be certified to the county clerk by the chairman of the county committee of such party, and, after taking the same course as nominations of other parties so certified, shall be printed on the official ballot in a separate column, headed by the name of the party; provided, a written application for such printing shall have been made to the county judge, signed and sworn to by three percent of the entire vote cast in such county at the last general election.
This provision has been substantially recodified as Art. 13.54, Vernon's Texas Election Code (1952).
Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.
28 U.S.C. (Supp. V) § 2202.
The District Judge refused injunctive relief because the affairs of the Jaybird Democratic Association are controlled by an Executive Committee of twenty-two persons; the four named defendants before the court had not the power to permit petitioners to vote in the Jaybird balloting.
6. 193 F.2d 600 (C.A. 5th Cir.1952).
7. Cf. Nixon v. Herndon, 273 U.S. 536 (1927); Nixon v. Condon, 286 U.S. 3 (1932); Smith v. Allwright, 321 U.S. 649 (1944).
8. 193 F.2d at 602. And see id. at 605.
9. Since, in this case, we deem the activities of the Jaybird Democratic Association unlawful under the independent reach of the Fifteenth Amendment, the applicability of 8 U.S.C. § 31 need not be considered now. See United States v. Reese, 92 U.S. 214, 218 (1876); United States v. Cruikshank, 92 U.S. 542, 555-556 (1876). Cf. James v. Bowman, 190 U.S. 127 (1903), with Ex parte Yarbrough, 110 U.S. 651 (1884), and Myers v. Anderson, 238 U.S. 368, 379 (1915).
10. See Smith v. Allwright, 321 U.S. 649, 662 (1944); Nixon v. Condon, 286 U.S. 73, 88-89 (1932). See note 4, supra.
11. See also Neal v. Delaware, 103 U.S. 370, 389-390 (1881); Ex parte Yarbrough, 110 U.S. 651, 665 (1884).
12. The record in this case comprises not only a concise stipulation of facts, but also 43 additional pages of directly relevant testimony. Obviously the whole of the record underlay the determinations of the courts below, and must be considered in an appellate review of their decisions.
13. In 1944, Mr. Charles Schultz emerged victorious from the Jaybird balloting and was indorsed as its candidate for County Judge. In the July Democratic primary, Schultz triumphed by a vote of 2,025 to 1 for Mr. Mike Dornak. Schultz held office for two terms until 1948. In that year, in accord with a Jaybird Association rule prohibiting more than two consecutive terms in office, Mr. Baker received the Jaybird indorsement for the county judgeship. Schultz, however, insisted on running in the Democratic primary; he lost out to Baker by a vote of 2,209 to 803. See R. 34, 79. The record reveals, however, that the Jaybird-indorsed candidates for precinct office were not quite as consistently successful.