Chapman v. King, 11494.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation154 F.2d 460
Docket NumberNo. 11494.,11494.
PartiesCHAPMAN et al. v. KING. KING v. CHAPMAN et al.
Decision Date01 April 1946

A. Edward Smith, of Columbus, Ga., and Charles J. Bloch, of Macon, Ga., for Joseph E. Chapman, Jr., et al.

Julian Eugene Cook, Atty. Gen. of Georgia, and Claude Shaw, Asst. Atty. Gen. of Georgia, for Joseph E. Chapman, Jr., et al. as amicus curiae.

Harry S. Strozier, of Macon, Ga., and Oscar D. Smith, of Columbus, Ga., Thurgood Marshall, of New York City, and A. P. Tureaud and Jos. A. Thornton, both of New Orleans, La., for Primus E. King as amicus curiae.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

Writ of Certiorari Denied April 1, 1946. See 66 S.Ct. 905.

SIBLEY, Circuit Judge.

The appellee King, a citizen of the United States and of the State of Georgia and a qualified and registered voter in Muscogee County according to the laws of Georgia, offered to vote in a Democratic Primary in that County in which nominees for the United States Senate and House of Representatives as well as for State offices were being chosen, and was denied the right by the appellants, who were in charge of the primary as the County Democratic Executive Committee, solely because he was of the colored or negro race. He sued for damages under the Civil Rights Act, 8 U.S.C.A. §§ 31 and 43, for the deprivation of a right secured by the Constitution of the United States, and especially by the Fifteenth Amendment. The facts were stipulated, including the amount of damages, if any are recoverable. The District Judge made an exhaustive review of the Georgia statutes touching party primary elections (King v. Chapman et al., D.C., 62 F.Supp. 639, 650) and concluded as a matter of law that this primary election "was by law an integral part of the electoral process of the State of Georgia" and the holding of it "was action by the State of Georgia acting through the Democratic Party as its instrumentality," and that King's right to vote was withheld in violation of the Fourteenth, Fifteenth and Seventeenth Amendments of the Constitution, and thereupon entered judgment for the stipulated damages. The defendants have appealed. King took an appeal also on the ground that the judgment was favorable to him only as to his right to vote for nominees for United States Senator and Representatives, but that he was equally entitled to vote for nominees for State offices.

1. A motion is made to dismiss King's appeal on the ground that he won his case, and has no cause to appeal. We agree. Neither in the facts stipulated, which the court found to be the facts in the case, nor in the conclusions of law, nor in the judgment is any such distinction drawn. The statute which is sued on (8 U.S.C.A. § 31) makes no difference between elections touching State offices and those touching federal offices, but applies in terms to all elections by the people, and the Fifteenth Amendment, to enforce which the statute was made, is broad enough to include them all. King has no ground to complain against the judgment and his appeal is dismissed.

2. George Washington in his public addresses decried parties and factions in public affairs, and the electoral college as originally set up in the Constitution did not fit party choices of President and Vice President. But parties soon arose, the Constitution was changed as to the electoral college by the Twelfth Amendment, and party organization is now fully recognized in political affairs, both State and federal. A party's candidates were at first chosen in caucuses of its leaders, those for President sometimes by the Senators and Congressmen in Washington. Mass meetings were also used to nominate local candidates, or to choose delegates to party conventions which framed platforms and nominated candidates. Latterly, in order to give the party voters a direct voice in the choice of nominees, the party primary election arose and is much used. The primaries do not and cannot elect anyone to office. A vote therein is not strictly a vote in an election. The potency and importance of the primary lies in the pledge of those who participate in it to support and vote for the nominee in the election to follow. This pledge is generally understood, is often expressed in the "rules of the primary," and has sometimes been reinforced by statute. In the present case the primary was appointed to be held July 4, 1944, by the Democratic Executive Committee of the State, according to the practice of the party; and in the call it was provided: "All white electors who are Democrats and qualified to vote in the General Election and who in good faith pledge themselves to support the Democratic candidates for all the offices to be voted on this year, are hereby qualified to vote in said primary." And it is agreed that King was a proper voter except that he was not white, but was a negro, and that he was excluded for that reason alone.

Now the federal immigration laws frown on anarchists and on organizations which advocate opposition to all government or the overthrow of the government of the United States by force or violence, 8 U.S. C.A. § 137; but we are advised of no statute, State or federal, which undertakes to limit the right of citizens who form a political party to select those who shall participate in it. Nor is there any statute which prohibits those who do participate in a party caucus, mass meeting or election from agreeing to support the result thereof. Accordingly there may be parties composed wholly of whites, or wholly of colored people, or wholly of Jews, or of men, or of women. In a pure party activity by such parties there would result an exclusion from voting in that activity of those of another race or sex, but it would not be a denial of the right to vote "at an election by the people in any State, Territory or county * * * or other territorial subdivision" in the words of 8 U.S.C.A. § 31, nor within the meaning of the Fifteenth or Nineteenth Amendments. The persons so excluded could freely vote in the election by the people in the territorial subdivision according to the statute and the Amendments, and win the election if they could muster a majority. There is indeed no way for the party to compel those who voted in its primary to support the nominee.1 Their pledge to do so might even be thought contrary to public policy in a court of law, because hindering the free expression in the election of the individual voter's judgment and will. Certainly the exclusion practiced in the primary by the party would not be an exclusion by the United States of a State prohibited by the Amendments;2 nor "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory", as is necessary under the language of 8 U.S.C.A. § 433 for a recovery of damages in this suit.

3. But the State of Georgia has not left party primaries wholly to the various parties, but has recognized the practical potency of the party pledge, and the great importance to the public of the results of a primary held by a numerous party, and has protected and regulated such primaries almost exactly in the same way as it has regulated elections by the people. Much, perhaps most, of this regulation we think in nowise commits the State to the party practices. For example, the forbidding the sale or furnishing of intoxicants on election days, whether the election is a party primary or an election by the people, Georgia Code, § 58-609, is for the peace and good order of the community, an ordinary exercise of police power. So are the statutes which are designed to prevent frauds, for the State can rightly concern itself in the prevention of fraud in any sort of proceeding. And the constitutional and statutory provisions forbidding voting in party primaries, mass meetings, and conventions by persons who are not by the State law qualified to vote in elections are aimed against the absurdity of having nominations controlled by people who cannot vote. They protect the State elections against an abuse, and standing alone would not show an adoption of the primary by the State. And it must be observed that the Georgia primary laws are not specially applicable to any particular party, but to all parties which may call a primary. The State does not require a primary in any case, nor itself choose the primary managers, nor bear any of the expenses of the primary, except that a few acts are required of the Ordinaries and Clerks of Court having to do with the prevention of...

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37 cases
  • United States v. Original Knights of Ku Klux Klan, Civ. A. No. 15793.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • December 1, 1965
    ...8 Fed.Cas. p. 716, No. 4,488. It was held to be a valid exercise of congressional power under the 15th Amendment. Chapman v. King, 5 Cir. 1946, 154 F.2d 460, cert. denied, 327 U.S. 800, 66 S.Ct. 905, 90 L.Ed. 1025; Kellogg v. Warmouth, C.C.D.La.1872, 14 Fed.Cas. p. 257, No. The Voting Right......
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    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • December 12, 1975
    ...in Gray v. Sanders, 372 U.S. 368, 374, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), the Supreme Court adopted the following language of Chapman v. King, 154 F.2d 460, 464 (5th Cir. 1946, cert. denied, 327 U.S. 800, 66 S.Ct. 905, 90 L.Ed. 1025: "Where the State . . . collaborates in the conduct of th......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 23, 1976
    ...at 106, 447 F.2d at 1275 (emphasis in original).12 372 U.S. 368, 374, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), quoting from Chapman v. king, 154 F.2d 460, 464 (5th Cir.), cert. denied, 327 U.S. 800, 66 S.Ct. 905, 90 L.Ed. 1025 (1946).13 It is, in fact, doubtful that any such scheme of state or f......
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    • United States District Courts. 11th Circuit. Middle District of Georgia
    • August 24, 1977
    ...party officials who are given or delegated authority by state law to prescribe primary election rules and regulations, Chapman v. King, 154 F.2d 460 (5th Cir. 1946), cert. denied 327 U.S. 800, 66 S.Ct. 905, 90 L.Ed. 1025; or even by withdrawal of the right to vote by gerrymander of municipa......
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1 books & journal articles
  • The County Unit System of Georgia: Facts and Prospects
    • United States
    • Political Research Quarterly No. 14-4, December 1961
    • December 1, 1961
    ...votein the recent Fifth Congressional District primary. Although having made no mention ofSmith v. Allwright or Chapman v. King (5th Cir., 154 F.2d 460: 1946), the latter decidedjust six months before, the court had pointed out that the county unit system had been im-posed by party, not by ......

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