Rice v. Elmore

• Decision Date: 30 December 1947
• Docket Number: No. 5664.,5664.
• Citation: 165 F.2d 387
• Parties: RICE et al. v. ELMORE.
• Court: U.S. Court of Appeals — Fourth Circuit

165 F.2d 387 (1947)

RICE et al. v. ELMORE.

No. 5664.

Circuit Court of Appeals, Fourth Circuit.

December 30, 1947.

Irvine F. Belser and Christie Benet, both of Columbia, S. C. (W. P. Baskin, of Bishopville, S. C., Charles B. Elliott, of Columbia, S. C., P. H. McEachin, of Florence, S. C., J. Perrin Anderson, of Greenwood, S. C., W. Brantley Harvey, of Beaufort, S. C., Edgar A. Brown, of Barnwell, S. C., and Yancey A. McLeod, of Columbia, S. C., on the brief), for appellants.

Thurgood Marshall, of New York City (Harold R. Boulware, of Columbia, S. C., and Edward R. Dudley, of New York City, on the brief), for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from a decree adjudging that Negroes are entitled to vote in Democratic primary elections in South Carolina and enjoining defendants, who conduct such elections, from denying to Negro electors the right to vote therein. Plaintiff, who has brought this as a class suit in behalf of all Negro electors similarly situated, is a Negro duly qualified to vote under the Constitution and laws of the State of South Carolina. He has been denied the right to vote in the Democratic primary of that state by rules promulgated by the Democratic Party limiting the right to vote in the primary to white persons. The defendants are officials of the Democratic Party of South Carolina, who have charge of the primary in the county and precinct where plaintiff resides.

The only question presented by the appeal is the correctness of the declaration as to the right to vote contained in the decree appealed from and the validity of the injunction therein granted. Plaintiff contends that the decree should be upheld under the Fourteenth and Fifteenth Amendments to the Constitution and the provisions of the Civil Rights Acts, 8 U.S.C.A. §§ 31, 43. Defendants contend that, because there has been no statutory regulation of primaries in South Carolina since the repeal in 1944, 44 St. at Large, p. 2231, of the statutes relating thereto, the constitutional limitations on state action relied on by plaintiff have no application and that there is consequently no jurisdiction in the court to grant declaratory or injunctive relief. They argue that defendants in the action complained of were acting, not as state officials, but as members of the Democratic Party, which, they say, is a voluntary political association which can exercise unrestricted choice of membership. There is no dispute as to the facts, which are fully and fairly set forth in the opinion of the District Judge. See Elmore et al. v. Rice et al., D.C., 72 F.Supp. 516. They may be briefly summarized as follows:

For half a century or more the Democratic Party has absolutely controlled the choice of elective officers in the State of South Carolina. The real elections within that state have been contests within the Democratic Party, the general elections serving only to ratify and give legal validity to the party choice. So well has this been recognized that only a comparatively few persons participate in the general elections. In the election of 1946, for instance, 290,223 votes were cast for Governor in the Democratic primary, only 26,326 in the general election.

In South Carolina, as in most other states of the Union, the primary had become an integral part of the election machinery recognized and regulated by law. Article II, sec. 10, of the State Constitution of 1895 directed that the Legislature provide by law for the regulation of party primary elections, and pursuant thereto a complete set of primary laws had been adopted and were in effect when the Supreme Court of the United States decided the case of Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110, holding that the right to vote in a primary election held under state law might not be denied on the ground of race or color. Immediately following this decision, the then Governor of South Carolina convened the state legislature and recommended that it repeal all laws with relation to primaries with the avowed purpose of preventing voting by Negroes in the Democratic primaries of the state. Pursuant to this recommendation, the primary laws of the state were repealed and the Democratic primary was conducted thereafter under rules prescribed by the Democratic party. That the primary when conducted by the party fulfilled the same function in the election machinery of the state and was managed in practically the same way as when conducted under state law, does not admit of doubt. With respect to this, the District Judge, after describing the procedure when the statutes regulating the primary were in effect, went on to say 72 F.Supp. 525:

"In 1944 substantially the same process was gone through, although at that time and before the State Convention assembled, the statutes had been repealed by action of the General Assembly, heretofore set out. The State Convention that year adopted a complete new set of rules and regulations, these however embodying practically all of the provisions of the repealed statutes. Some minor changes were made but these amounted to very little more than the usual change of procedure in detail from year to year. * * *

"In 1946 substantially the same procedure was used in the organization of the Democratic Party and another set of rules adopted which were substantially the same as the 1944 rules, excepting that the voting age was lowered to 18 and party officials were allowed the option of using voting machines, and the rules relative to absentee voting were simplified * * *."

The question presented for our decision is whether, by permitting a party to take over a part of its election machinery, a state can avoid the provisions of the Constitution forbidding racial discrimination in elections and can deny to a part of the electorate, because of race and color, any effective voice in the government of the state. It seems perfectly clear that this question must be answered in the negative.

The fundamental error in defendant's position consists in the premise that a political party is a mere private aggregation of individuals, like a country club,¹ and that the primary is a mere piece of party machinery. The party may, indeed, have been a mere private aggregation of individuals in the early days of the Republic, but with the passage of the years, political parties have become in effect state institutions, governmental agencies through which sovereign power is exercised by the people. Party primaries are of more recent growth. Originating in the closing years of the last century as a means of making parties more responsive to the popular will in the nomination of candidates for office, they had been adopted by 1917 in all except four of the states of the Union as a vital and integral part of the state election machinery. Encyclopedia of Social Sciences, vol. 6, p. 396. The relation of the primary to the election was well stated by Mr. Justice Pitney in his concurring opinion in Newberry v. United States, 256 U.S. 232, 285, 41 S.Ct. 469, 484, 65 L.Ed. 913, where he said: "It seems to me too clear for discussion that primary elections and nominating conventions are so closely related to the final election, and their proper regulation so essential to effective regulation of the latter, so vital to representative government that power to regulate them is within the general authority of Congress. It is matter of common knowledge that the great mass of the American electorate is grouped into political parties, to one or the other of which voters adhere with tenacity, due to their divergent views on questions of public policy, their interests, their environment, and various other influences, sentimental and historical. So strong with the great majority of voters are party associations, so potent the party slogan, so effective the party organization, that the likelihood of a candidate succeeding in an election without a party nomination is practically negligible. As a result, every voter comes to the polls on the day of the general election confined in his choice to those few candidates who have received party nominations, and constrained to consider their eligibility, in point of personal fitness, as affected by their party associations and their obligation to pursue more or less definite lines of policy, with which the voter may or may not agree. As a practical matter, the ultimate choice of the mass of voters is predetermined when the nominations have been made."

As primaries have become inbedded in the election machinery of the country, there has come gradually a recognition by the courts of the function they perform and the application to them of the laws relating to elections. In the Newberry case, supra, decided in 1921, the Supreme Court, by a bare majority, had held the Federal Corrupt Practices Act, 2 U.S.C.A. § 241 et seq., not applicable to a primary election held for United States Senator under a law adopted prior to the 17th Amendment. In United States v. Classic, 313 U. S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, decided in 1941, however, it was expressly held that a primary was an election within the meaning of art. 1 sec. 4 of the Constitution and the court pointed out that the Newberry case could not be considered authority to the contrary. In Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L. Ed. 759, a Texas statute forbidding Negroes to participate in Democratic primaries was held violative of the 14th Amendment. Following that...