King v. Chapman

• Citation: 62 F. Supp. 639
• Decision Date: 12 October 1945
• Docket Number: Civ. A. No. 143.
• Parties: KING v. CHAPMAN et al.
• Court: U.S. District Court — Middle District of Georgia

62 F. Supp. 639

KING v. CHAPMAN et al.

Civ. A. No. 143.

District Court, M. D. Georgia, Columbus Division.

October 12, 1945.

Oscar D. Smith, of Columbus, Ga., and Harry S. Strozier, of Macon, Ga., for plaintiff.

A. Edward Smith, of Columbus, Ga. and Hall & Bloch, of Macon, Ga. (Chas. J. Bloch and Ellsworth Hall, Jr., both of Macon, Ga., of counsel), for defendants.

DAVIS, District Judge.

This case arises under Sections 31 and 43 of Title 8 U.S.C.A.¹ and plaintiff seeks damages of the defendants for the alleged deprivation of his civil rights guaranteed to him by the Constitution and laws of the United States; viz., the right to vote in Muscogee County in the Democratic Primary held on July 4, 1944, for the nomination of United States Senator and a member of the House of Representatives, as well as state officers.

Inasmuch as candidates for the offices of United States Senator and members of the National House of Representatives were nominated at this primary, it is unnecessary to pass on the question of whether or not this action would lie had the primary been one merely for the nomination of state or local officers.

The facts are stipulated by the parties. Such as are material to a consideration and determination of this case are, as follows:

Plaintiff is a member of the negro race, and at the time of the primary election held on July 4, 1944 was a duly qualified and registered voter of Muscogee County, Georgia, and of the State of Georgia, and a resident and citizen of said state and county.

The defendant, J. E. Chapman, Jr., was at the time of said primary election the duly elected Chairman of the Democratic Executive Committee of Muscogee County, Georgia. The other defendants at said time were the remaining members of said committee and were selected thereto by appointment. The defendants at the time of the filing of this suit were residents and citizens of Muscogee County, Georgia.

The Democratic Party in Muscogee County polled more than ten per cent of the entire vote cast in the county in the preceding primary for the candidate receiving the greatest number of votes.

On July 4, 1944, there was held throughout the State of Georgia and in Muscogee County, Georgia, a primary election for the nomination of Democratic candidates for United States Senator, Representatives in the House of Representatives of the United States, and various state officers. Said primary election was held in conformity with the rules and regulations of the State Democratic Executive Committee, adopted January 27, 1944, and under the immediate supervision of the defendants and under the laws of Georgia relating to primary elections.

Defendants, as members of said Democratic Executive Committee of Muscogee County, Georgia, held the election of July 4, 1944, in Muscogee County, Georgia, and in such capacity they appointed the clerks, tabulators and managers therefor and publicized the rules and regulations which governed said election.

On said date of July 4, 1944, during the regular hours of voting, plaintiff presented himself at the Muscogee County court-house in the City of Columbus, in the precinct in which he was registered, and expressed a desire to vote. Defendant advised plaintiff that, solely on account of his race, he was not qualified to be a member of the Democratic Party of the State of Georgia and was, therefore, not qualified to vote in said primary, by reason of Rule Two of the rules governing said primary as adopted by the State Democratic Executive Committee, and for that reason alone defendants refused to permit plaintiff to vote. Plaintiff was a believer in the tenets of the Democratic Party and was willing to support the Democratic nominees in the ensuing general election.

Since 1900, the Democratic nominees for United States Senator, Representatives in Congress, Governor and other State-House offices nominated at primaries have been elected in the ensuing general election.

All State and County officers upon whom the law devolves any duty or duties in connection with primary elections perform such duties without expense to the Democratic Party or its candidates or nominees.

All of the Democratic candidates nominated in the primary of July 4, 1944 were elected to office in the General Election in November, 1944.

No other party than the Democratic Party has held a state-wide primary in Georgia during the past forty years, though there have been candidates in the general elections other than the Democratic nominees.

The State Democratic Executive Committee acting on July 4, 1944 was selected pursuant to a resolution adopted by the State Democratic Convention held on October 7, 1942.²

The delegates to this Convention were selected in accordance with a party custom, which permitted the candidate for Governor prevailing in a given county to name the delegates to the Convention, each county being permitted by this custom to two votes for each representative to which such county was entitled in the lower House of the General Assembly.

The expense of holding primaries is defrayed by assessment against candidates in such amounts as are determined by the Party authorities.

In all counties of the State, other than Muscogee, the selection of members of the Democratic Executive Committees of the respective counties is governed by the rules of the party.

The defendants, in refusing to permit plaintiff to vote as above stated, were acting in their capacity as members of the Democratic Executive Committee of Muscogee County, Georgia.

Since 1908 the Democratic Party in Georgia has always held a State-wide primary biennially in the years in which by law a general election is held in November.

The election law known as the Australian Ballot Law, which is codified in the Code of Georgia as Chapter 34-19, has been put into effect in a number of counties in the State and was in effect in Muscogee County on July 4, 1944.

Paragraph 1 of the resolution, adopted by the State Democratic Executive Committee on January 27, 1944, provides: "That a Democratic Primary Election be held on July 4, 1944, in each of the counties of this State for the nomination of candidates of the Democratic Party for the following offices, whether for full or unexpired terms, or both, to-wit: United States Senator, Justices of the Supreme Court, Judge of the Court of Appeals, Representatives in the Congress of the United States from the various Congressional Districts of the State * * * (and other state offices). * * * The entries for said primary shall close April 1st, 1944 at 12:00 o'clock noon, Central War Time".

Paragraph 2 of said resolution provides: "The Primary Election shall be conducted in accordance with the laws of this State and the customs of the party insofar as they do not conflict with existing laws and these rules. All white electors who are Democrats and qualified to vote in the General Election and who in good faith will pledge themselves to support the Democratic candidates for all offices to be voted on this year, are hereby declared qualified to vote in said primary."

It was conceded in the arguments that the right of a qualified elector to vote in a Primary for the selection of candidates for United States Senator and members of the House of Representatives to be voted on in the General Election, when such primary is an integral part, by law or in fact of the electoral process of the state, is a right secured by the Constitution and laws of the United States.

It was also conceded that the deprivation of such right, to be the basis of a cause of action under Title 8 U.S.C.A. Section 43, must be by state action.

That brings us then to this question: When a political party in Georgia determines to hold and does hold a primary for the selection of candidates for United States Senator and members of the House of Representatives, is such primary an integral part of the election system of the state, by law or in fact; and, if so, is it action by the State? In order to determine these matters, it is necessary to look to the Constitution and statutes of the State of Georgia and to the stipulations of fact.

The Constitution of 1877, which was of force at the time this cause arose, recognizes primaries in section 2-608, Const. art. 2, § 1, par. 8, providing: "No person shall be allowed to participate in a primary of any political party or a convention of any political party in this State who is not a qualified voter."

It might be noted here that a new constitution was ratified on August 7, 1945, wherein no mention is made of primaries.

Title 34 of the Georgia Code of 1933 embraces all of the statutes touching elections. Sections 34-101 through 34-115 provide for the registration of voters, the duties imposed upon the Tax Collectors with reference thereto, and the form of oath required to qualify an elector.

§ 34-111 requires that the race of the registrant be noted on the voters' book.

§ 34-201 requires the tax collectors of the several counties to make registration lists of qualified electors; and § 34-202 provides that such lists shall be filed with the county registrar. § 34-203 provides that the tax collector, the ordinary and the clerk of the superior court shall prepare a list of disqualified voters, and § 34-204 the method to be used. § 34-301 provides for the appointment of three registrars in each county by the judge of the superior court, and their appointment entered on the minutes of the court. § 34-303 prescribes the oath they shall take.

Sections 34-401 to 34-404, inclusive, prescribe their duties. § 34-405 provides: "Each person whose name is upon the registration list for the general election provided for in the foregoing section shall be entitled to vote at the general State election for said year and all primaries to nominate candidates for offices to be filled at said general State election and also at the Federal election in November of said year * * *."

§ 34-406 provides for supplemental...