Nixon v. Condon, No. 265

• Court: United States Supreme Court
• Writing for the Court: CARDOZO
• Citation: 286 U.S. 73,88 A.L.R. 458,52 S.Ct. 484,76 L.Ed. 984
• Parties: NIXON v. CONDON et al. Re
• Docket Number: No. 265
• Decision Date: 02 May 1932

286 U.S. 73 52 S.Ct. 484 76 L.Ed. 984 NIXON

v.

CONDON et al.

No. 265. Reargued March 15, 1932. Decided May 2, 1932.

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Messrs. James Marshall, Nathan R. Margold, Arthur Spingarn, all of New York City, and Fred C. Knollenberg and E. F. Cameron, both of El Paso, Tex. (Mr. N. H. Kugelmass, of New York City, on the brief), for petitioner.

[Argument of Counsel from pages 74-78 intentionally omitted]

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Messrs. Ben R. Howell and Thornton Hardie, both of El Paso, Tex., for respondents.

[Argument of Counsel from pages 79-81 intentionally omitted]

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Messrs. J. Alston Atkins and Carter W. Wesley, both of Houston, Tex. (Messrs. J. M. Nabrit, Jr., and Nabrit, Atkins & Wesley, all of Houston, Tex., and Charles H. Houston, of Washington, D. C., of counsel), for movants.

Mr. Justice CARDOZO delivered the opinion of the Court.

The petitioner, a negro, has brought this action against judges of election in Texas to recover damages for their refusal by reason of his race or color to permit him to cast his vote at a primary election.

This is not the first time that he has found it necessary to invoke the jurisdiction of the federal courts in vindication of privileges secured to him by the Federal Constitution.

In Nixon v. Herndon, 273 U. S. 536, 47 S. Ct. 446, 71 L. Ed. 759, decided at the October term, 1926, this court had before it a statute of the state of Texas (article 3093a, Revised Statutes 1911 as added by Acts 38th Leg., 2d Called Sess. (1923), c. 32, § 1 afterwards numbered 3107 (Vernon's Ann. Civ. St.)) whereby the Legislature had said that 'in no event shall a negro be eligible to participate in a Democratic party primary election (held in that State),' and that, 'should a negro vote in a Democratic primary election, such ballot shall be void,' and election officials were directed to throw it out. While that mandate was in force, the negro was shut out from a share in primary elections, not in obedience to the will of the party speaking through the party organs, but by the command of the state itself, speaking by the voice of its chosen representatives. At the suit of this petitioner, the statute was adjudged void as an infringement of his rights and liberties under the Constitution of the United States.

Promptly after the announcement of that decision, the Legislature of Texas enacted a new statute (Acts 1927, 1st Called Sess., c. 67 (Vernon's Ann. Civ. St. art. 3107))

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repealing the article condemned by this court; declaring that the effect of the decision was to create an emergency with a need for immediate action; and substituting for the article so repealed another bearing the same number. By the article thus substituted, 'every political party in this State through its State Executive Committee shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote or otherwise participate in such political party; provided that no person shall ever be denied the right to participate in a primary in this State because of former political views or affiliations or because of membership or non-membership in organizations other than the political party.'

Acting under the new statute, the state executive committee of the Democratic party adopted a resolution 'that all white democrats who are qualified under the constitution and laws of Texas and who subscribe to the statutory pledge provided in Article 3110, Revised Civil Statutes of Texas, and none other, be allowed to participate in the primary elections to be held July 28, 1928, and August 25, 1928,' and the chairman and secretary were directed to forward copies of the resolution to the committees in the several counties.

On July 28, 1928, the petitioner, a citizen of the United States, and qualified to vote unless disqualified by the foregoing resolution, presented himself at the polls and requested that he be furnished with a ballot. The respondents, the judges of election, declined to furnish the ballot or to permit the vote on the ground that the petitioner was a negro, and that by force of the resolution of the executive committee only white Democrats were allowed to be voters at the Democratic primary. The refusal was followed by this action for damages. In the District Court there was a judgment of dismissal, 34 F.

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(2d) 464, 468, which was affirmed by the Circuit Court of Appeals for the Firth Circuit, 49 F.(2d) 1012, 1013. A writ of certiorari brings the cause here.

Barred from voting at a primary the petitioner has been, and this for the sole reason that his color is not white. The result for him is no different from what it was when his cause was here before. The argument for the respondents is, however, that identity of result has been attained through essential diversity of method. We are reminded that the Fourteenth Amendment is a restraint upon the states and not upon private persons unconnected with a state. United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664; Ex parte Virginia, 100 U. S. 339, 346, 25 L. Ed. 676; James v. Bowman, 190 U. S. 127, 136, 23 S. Ct. 678, 47 L. Ed. 979. This line of demarcation drawn, we are told that a political party is merely a voluntary association; that it has inherent power like voluntary associations generally to determine its own membership; that the new article of the statute, adopted in place of the mandatory article of exclusion condemned by this court, has no other effect than to restore to the members of the party the power that would have been theirs if the lawmakers had been silent; and that qualifications thus established are as far aloof from the impact of constitutional restraint as those for membership in a golf club or for admission to a Masonic lodge.

Whether a political party in Texas has inherent power to-day without restraint by any law to determine its own membership, we are not required at this time either to affirm or to deny. The argument for the petitioner is that, quite apart from the article in controversy, there are other provisions of the Election Law whereby the privilege of unfettered choice has been withdrawn or abridged (citing, e. g., articles 2955, 2975, 3100, 3104, 3105, 3110, 3121, Revised Civil Statutes); that nomination

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at a primary is in many circumstances required by the statute if nomination is to be made at all (article 3101); that parties and their representatives have become the custodians of official power (article 3105); and that, if heed is to be given to the realities of political life, they are now agencies of the state, the instruments by which government becomes a living thing. In that view, so runs the argument, a party is still free to define for itself the political tenets of its members, but to those who profess its tenets there may be no denial of its privileges.

A narrower base will serve for our judgment in the cause at hand. Whether the effect of Texas legislation has been to work so complete a transformation of the concept of a political party as a voluntary association, we do not now decide. Nothing in this opinion is to be taken as carrying with it an intimation that the court is ready or unready to follow the petitioner so far. As to that, decision must be postponed until decision becomes necessary. Whatever our conclusion might be if the statute had remitted to the party the untrammeled power to prescribe the qualifications of its members, nothing of the kind was done. Instead, the statute lodged the power in a committee, which excluded the petitioner and others of his race, not by virtue of any authority delegated by the party, but by virtue of an authority originating or supposed to originate in the mandate of the law.

We recall at this point the wording of the statute invoked by the respondents. 'Every political party in this State through its State Executive Committee shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote or otherwise participate in such political party.' Whatever inherent power a state political party has to determine the content of its membership resides in the state convention. Bryce, Modern Democracies, vol.

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2, p. 40. There platforms of principles are announced and the tests of party allegiance made known to the world. What is true in that regard of parties generally is true more particularly in Texas, where the statute is explicit in committing to the state convention the formulation of the party faith (article 3139). The state executive committee, if it is the sovereign organ of the party, is not such by virtue of any powers inherent in its being. It is, as its name imports, a committee and nothing more, a committee to be chosen by the convention and to consist of a chairman and thirty-one members, one from each senatorial district of the state (article 3139). To this committee the statute here in controversy has attempted to confide authority to determine of its own motion the requisites of party membership and in so doing to speak for the party as a whole. Never has the state convention made declaration of a will to bar negroes of the state from admission to the party ranks. Counsel for the respondents so conceded upon the hearing in this court. Whatever power of exclusion has been exercised by the members of the committee has come to them, therefore, not as the delegates of the party, but as the delegates of the state. Indeed, adherence to the statute leads to the conclusion that a resolution once adopted by the committee must continue to be binding upon the judges of election though the party in convention may have sought to override it, unless the committee, yielding to the moral force of numbers, shall revoke its earlier action and obey the party will. Power so intrenched is statutory, not inherent. If the...