Baskin v. Brown

• Decision Date: 17 May 1949
• Docket Number: No. 5861.,5861.
• Parties: BASKIN et al. v. BROWN.
• Court: U.S. Court of Appeals — Fourth Circuit

174 F.2d 391 (1949)

BASKIN et al. v. BROWN.

No. 5861.

United States Court of Appeals Fourth Circuit.

Argued April 8, 1949.

Decided May 17, 1949.

Robert McC. Figg, Jr., Charleston, S. C. (Eugene S. Blease, Newberry S. C., Sidney S. Tison, Bennettsville, S. C., and George Warren, Hampton, S. C., on the brief), for appellants.

Thurgood Marshall, New York City (Harold R. Boulware, Columbia, S. C., Robert L. Carter and Constance Baker Motley, New York City, on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This appeal presents another chapter in the effort to exclude Negro citizens from any effective participation in elections in South Carolina, where the vote in the Democratic Primary controls, to all practical intents and purposes, the choice in general elections. Prior to the decision in Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110, Negroes were excluded from voting in the Democratic Primary in South Carolina, which was conducted pursuant to state law. Following the decision in that case, which upheld the right of Negroes to vote in primary elections, the Governor of South Carolina convened the Legislature in special session and recommended that all primary laws of the state be repealed, with the avowed purpose of preventing Negroes from participating in the Democratic primaries. Pursuant to this recommendation the primary laws were repealed and the Democratic primaries were conducted thereafter under rules prescribed by the Democratic Party of South Carolina but in the same manner and in such way as to produce the same results as when conducted under state law. In Elmore v. Rice, D.C., 72 F.Supp. 516, those conducting these primary elections were enjoined from denying to Negro citizens the right to vote therein; and this was affirmed by us on appeal in Rice v. Elmore, 4 Cir., 165 F.2d 387, where we gave the most careful consideration to the questions involved. Certiorari to review our decision was denied by the Supreme Court. 333 U.S. 875, 68 S.Ct. 905.

Following the denial of certiorari in Rice v. Elmore, the Democratic Party of South Carolina adopted rules under which control of the primaries in that state was vested in clubs to which Negroes were not admitted to membership, and voting in the primaries was conditioned upon the voter's taking an oath that he believed in social and educational separation of the races and was "opposed to the proposed Federal so-called F. E. P. C. law." Negroes desiring to vote in the primaries were required, in addition, to present general election certificates, a requirement not exacted of white voters.

Upon adoption of the rules mentioned, this suit was instituted against officials of the Democratic Party of South Carolina to protect the right of Negro citizens to participate in the Democratic primaries; and the right with respect to the approaching primary was protected by an interlocutory injunction (Brown v. Baskin, D. C., 78 F.Supp. 933) which was made permanent on final hearing. Brown v. Baskin, D.C., 80 F.Supp. 1017. Appeal has been taken from this final decree, which enjoins defendants from refusing to enroll Negroes as members of Democratic Clubs or denying them full participation in the Democratic Party on account of race or color, from enforcing the rule requiring Negro electors to present election certificates as a prerequisite to voting unless the same requirement is applied to other persons, and from requiring the taking of the oath to which reference has been made. The appeal before us asks that we reconsider our decision in Rice v. Elmore, supra, and attempts to defend the limitation of membership in Democratic Clubs and the oath required of voters in party primaries on the ground that these are matters for the party with which the state has no concern.

We see no reason to modify our holding in Rice v. Elmore. On the contrary, we are convinced, after further consideration, that the decision in that case was entirely correct; and little need be added to our opinion there to dispose of every question that is here presented. The gist of that decision was that primaries, under modern conditions, are a part of the election machinery of the state, and that a state cannot, by allowing a political party to take over this part of its election machinery, avoid the provisions of the Constitution forbidding racial discrimination in elections, Amend. 15, and thus deny to a part of the electorate, because of race or color, any effective voice in the government of the state. After reviewing and analyzing the applicable decisions of the Supreme Court, we summed up the rationale of our decision in the following language 165 F.2d 392:

"An essential feature of our form of government is the right of the citizen to participate in the governmental process. The political philosophy of the Declaration of Independence is that governments derive their just powers from the consent of the governed; and the right to a voice in the selection of officers of government on the part of all citizens is important, not only as a means of insuring that government shall have the strength of popular support, but also as a means of securing to the individual citizen proper consideration of his rights by those in power. The disfranchised can never speak with the same force as those who are able to vote. The Fourteenth and Fifteenth Amendments were written into the Constitution to insure to the Negro, who had recently been liberated from slavery, the equal protection of the laws and the right to full participation in the process of government. These amendments have had the effect of creating a federal basis of citizenship and of protecting the rights of individuals and minorities from many abuses of governmental power which were not contemplated at the time. Their primary purpose must not be lost sight of, however; and no election machinery can be upheld if its purpose or effect is to deny to the Negro, on account of his race or color, any effective voice in the government of his country or the state or community wherein he lives.

"The use of the Democratic primary in...