Elmore v. Rice

• Decision Date: 12 July 1947
• Docket Number: Civil Action No. 1702.
• Citation: 72 F. Supp. 516
• Court: U.S. District Court — District of South Carolina
• Parties: ELMORE v. RICE et al.

72 F. Supp. 516

ELMORE v. RICE et al.

Civil Action No. 1702.

District Court, E. D. South Carolina, Columbia Division.

July 12, 1947.

Harold R. Boulware, of Columbia, S. C., and Thurgood Marshall and Robert L. Carter, both of New York City, for plaintiff.

Charles B. Elliott, Irvine F. Belser, and Christie Benet, all 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., William P. Baskin, of Bishopville, S. C., and Yancey A. McLeod, of Columbia, S. C., for defendants.

WARING, District Judge.

Plaintiff, George Elmore, is a duly and legally qualified elector under the Constitution and laws of the United States and of the State of South Carolina and is subject to none of the disqualifications for voting thereunder. This suit is brought by him to test the legality of the action of the defendants in not permitting him and other qualified Negro electors to vote in the Democratic Party's Primary held on August 13, 1946, in Richland County, which Primary was held for the purpose of nominating candidates on the Democratic ticket for the House of Representatives of the United States, and for various State offices. The rules of the Democratic Party restrict voting in its primaries to white persons. The plaintiff, George Elmore, is a Negro. Some of the defendants are election managers of Ward 9 Precinct in Richland County, South Carolina, and the others are members of the Richland County Democratic Executive Committee which has general charge and supervision of the conduct of the primaries and other functions of the Democratic Party in Richland County. This action is brought by the plaintiff on behalf of himself and others similarly situated.

The action is based upon the alleged rights of the plaintiff under the Constitution of the United States and particularly under Article 1, Sections 2 and 4, and the Fourteenth, Fifteenth, and Seventeenth Amendments. The jurisdiction of the court is invoked under Title 28 U.S.C.A. § 41 (1, 11, 14), and a declaratory judgment with injuction is prayed for under Title 28 U.S. C.A. § 400. It is alleged that the plaintiff and others in like situation have been deprived of the civil rights guaranteed them under Title 8 U.S.C.A. § 31, which is as follows:

"Race, color, or previous condition not to affect right to vote

"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."

And Title 8 U.S.C.A. § 43, which is as follows:

"Civil action for deprivation of rights

"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."

It is admitted and stipulated that the plaintiff George Elmore and certain other Negroes who were qualified to vote under the Constitution of the State of South Carolina presented themselves on August 13, 1946, at the regular polling place of Ward 9 Precinct in Richland County, South Carolina, during the regular hours that the polling place was open and requested ballots and permission to vote in the Democratic Primary, and that these requests were refused on the ground that they were not enrolled because they were not white Democrats; and that this refusal by the Primary Managers was in pursuance of the rules and instructions of the Chairman of the Richland County Democratic Executive Committee and the members of such Committee who were acting pursuant to the rules of the Democratic Party of South Carolina then in force, particularly because such rules limited membership to persons of the white race.

Upon the hearing of the case it was decided that the Court would first pass upon the question of a declaratory judgment and injunction, and that the prayer for money damages (alleged in the complaint to be $5,000) would be deferred for future submission to a jury in case it was determined that the plaintiff had stated and shown a cause of action.

Under Title 28 U.S.C.A. Section 41(11), the District Courts are given original jurisdiction of all suits "to enforce the right of citizens of the United States to vote in the several States," and the Federal Courts have undoubted jurisdiction over the right to vote in a primary provided it is determined to be an integral part of the election machinery of the State. United States v. Classic 313 U.S. 299, 61 S.Ct. 1031, 85 L. Ed. 1368; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110. On the question of jurisdiction, see also Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484. 76 L.Ed. 984, 88 A.L.R. 458; Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; Chapman v. King, 5 Cir., 154 F.2d 460.

Of course there has never been any serious question that the constitution of the United States recognized the right of the Federal Government to control General Elections in which Federal Officers were chosen. However, it was for many years a doubtful question as to whether the federal jurisdiction and federal laws extended to primary elections. The issue was squarely faced in the famous case of Newberry v. United States, 256 U.S. 232, 41 S.Ct. 469, 65 L.Ed. 913 where the Court had to determine whether legislation attempting to regulate primaries was constitutional. The Court was evenly divided, four to four, on the question as to whether the federal government could regulate primaries. But the Justices voted five to four in declaring the act then under consideration unconstitutional, it having been passed before the Seventeenth Amendment was adopted. But even at so early a date, four of the Justices, in an opinion by Mr. Justice Pitney, took the position that a primary election should not be treated as a thing separate from the final election but should be considered as so closely related to the final election that proper regulation is essential.

The dissenting opinion discusses the matter at some length, is enlightening, and sounds as though it were enunciated by the present Supreme Court in view of its recent decisions to which I hereinafter advert.

Over the course of years, there has been a constant flow of litigation relative to the right to vote in elections as well as in primaries. This has been particularly true in certain of the states wherein various restrictions were imposed in attempts to impede the right of Negroes to vote. A number of cases which have been discussed at length and cited in briefs submitted to me denied the right of the Federal government to supervise primary elections even though they were created and regulated by state statutes. It might be interesting to follow and discuss many of these, but since the decisions in the Classic and Smith cases, supra, these older cases have really become of interest only from an historic standpoint. Perhaps the outstanding one of these is Grovey v. Townsend, 295 U.S. 45, 55 S.Ct. 622, 79 L.Ed. 1292, 97 A.L.R. 680. And under the law as laid down by that case, confirming and supplementing many other cases (which I deem unnecessary to cite for reasons above stated) a state had the right to enact laws governing primary elections and a political party operating thereunder might restrict the voters in the primary conducted by it according to racial distinctions. The Court there took the definite position that the privilege of membership in a party, with the right to vote for its nominees, is different from the right to vote in a General Election.

But the views of the Supreme Court of the United States in regard to these matters has suffered a drastic and complete change. And so far as we are at present concerned with the law of the land, except for an interest in prior views showing changes and development of the law, we need hardly look back of 1941 when the famous case of United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, was decided, and a few years later in 1944 Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987. These two cases now completely control and govern the matters under discussion.

In South Carolina for many years the Democratic Party has conducted primary elections for the choice of municipal, county, state and federal officers. It is a matter of common knowledge that for a great many years the Democratic Party has completely controlled the filling of offices in the State of South Carolina. For the purpose of this case and as shown by the stipulations, certain dates are fixed, and it is agreed that since 1900 every Governor, member of the General Assembly, United States Representative and United States Senator for the State of South Carolina, elected by the people of this State in the General Elections, was the nominee of the then existing Democratic Party of South Carolina, and that during the past 25 years the Democratic Party of South Carolina has been the only political party in this State to hold State-wide primaries for the nomination of candidates for Federal and State offices. The Constitution of South Carolina of 1895 recognized the primary as a part of the election machinery of the State and authorized the General Assembly to enact laws to govern these primaries. Article II, Section 10...