1. A negro who is denied by state registration officials the
right of registration, prerequisite to the right to vote, under
color of a state registration statute which, in violation of the
Fifteenth Amendment, works discrimination against the colored race,
has a right of action in the federal court for damages against such
officials under R.S.1979; 8 U.S.C. § 43. Giles v. Harris,
189 U. S. 475
distinguished. P. 307 U. S.
2. This resort to the federal court may be had without first
exhausting the judicial (distinguished from administrative)
remedies of the state courts. P. 307 U. S.
3. Oklahoma statutes made registration prerequisite to voting,
and provided generally that all citizens qualified to vote in 1916
who failed to register between April 30 and May 11, 1916, should be
perpetually disfranchised, excepting those who voted in 1914. The
effect was that white people who were on the lists in 1914 in
virtue of the provision of the Oklahoma Constitution called the
"Grandfather Clause" which this Court in 1915 adjudged
unconstitutional, Guinn v. United States, 238 U.
, were entitled to vote; whereas colored people
kept from registering and voting by that clause would remain
forever disfranchised unless they applied for registration during
the limited period of not more than 12 days. Held
repugnant to the Fifteenth Amendment. P. 307 U. S.
98 F.2d 980, reversed.
CERTIORARI, 305 U.S. 591, to review the affirmance of a
judgment, on a verdict directed for defendants in an action for
damages, under R.S.1979.
Page 307 U. S. 269
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
The case is here on certiorari to review the judgment of the
Circuit Court of Appeals for the Tenth Circuit affirming that of
the United States District Court for the Eastern District of
Oklahoma, entered upon a directed verdict in favor of the
defendants. The action was one for $5,000 damages brought under §
1979 of the Revised Statutes (8 U.S.C. § 43), by a colored citizen
claiming discriminatory treatment resulting from electoral
legislation of Oklahoma, in violation of the Fifteenth Amendment.
Certiorari was granted, 305 U.S. 591, because of the importance of
the question and an asserted conflict with the decision in
Guinn v. United States, 238 U. S. 347
The constitution under which Oklahoma was admitted into the
Union regulated the suffrage by Article III, whereby its "qualified
electors" were to be "citizens of the State . . . who are over the
age of twenty-one years" with disqualifications in the case of
felons, paupers and lunatics. Soon after its admission, the
suffrage provisions of the Oklahoma Constitution were radically
amended by the addition of a literacy test from which white voters
were in effect relieved through the operation of a "grandfather
clause." The clause was stricken down by this Court as violative of
the prohibition against discrimination "on account of race, color
or previous condition of servitude" of the Fifteenth Amendment.
This outlawry occurred on June 21, 1915. In the meantime, the
Oklahoma general election of 1914 had been based on the
Page 307 U. S. 270
offending "grandfather clause." After the invalidation of that
clause, a special session of the Oklahoma legislature enacted a new
scheme for registration as a prerequisite to voting. Oklahoma Laws
of 1916, Act of February 26, 1916, c. 24. Section 4 of this statute
(now § 5654, Oklahoma Statutes 1931, 26 Okla. St.Ann. 74) [Footnote 1
] was obviously
Page 307 U. S. 271
directed towards the consequences of the decision in Guinn
v. United States, supra.
Those who had voted in the general
election of 1914 automatically remained qualified voters. The new
registration requirements affected only others. These had to apply
for registration between April 30, 1916, and May 11, 1916, if
qualified at that time, with an extension to June 30, 1916, given
only to those
"absent from the county . . . during such period of time, or . .
. prevented by sickness or unavoidable misfortune from registering
. . . within such time."
The crux of the present controversy is the validity of this
registration scheme, with its dividing line between white citizens
who had voted under the "grandfather clause" immunity prior to
Guinn v. United States, supra,
and citizens who were
outside it, and the not more than 12 days as the normal period of
registration for the theretofore proscribed class.
The petitioner, a colored citizen of Oklahoma, who was the
plaintiff below and will hereafter be referred to as such, sued
three county election officials for declining to register him on
October 17, 1934. He was qualified for registration in 1916, but
did not then get on the registration list. The evidence is in
conflict whether he presented himself in that year for registration
and, if so, under what circumstances registration was denied him.
The fact is that plaintiff did not get on the register in 1916.
Under the terms of the statute, he thereby permanently lost the
right to register, and hence the right to vote. The central claim
of plaintiff is that of the unconstitutionality of § 5654. The
defendants joined issue on this claim, and further insisted that,
if there had been illegality
Page 307 U. S. 272
in a denial of the plaintiff's right to registration, his proper
recourse was to the courts of Oklahoma. The District Court took the
case from the jury, and its action was affirmed by the Circuit
Court of Appeals. It found no proof of discrimination against
negroes in the administration of § 5654, and denied that the
legislation was in conflict with the Fifteenth Amendment. 98 F.2d
The defendants urge two bars to the plaintiff's recovery, apart
from the constitutional validity of § 5654. They say that, on the
plaintiff's own assumption of its invalidity, there is no Oklahoma
statute under which he could register, and therefore no right to
registration has been denied. Secondly, they argue that the state
procedure for determining claims of discrimination must be employed
before invoking the federal judiciary. These contentions will be
considered first, for the disposition of a constitutional question
must be reserved to the last.
The first objection derives from a misapplication of Giles
v. Harris, 189 U. S. 475
that case, a bill in equity was brought by a colored man on behalf
of himself "and on behalf of more than five thousand negroes,
citizens of the county of Montgomery, Alabama, similarly situated"
which, in effect, asked the federal court "to supervise the voting
in that State by officers of the court." What this Court called a
"new and extraordinary situation" was found "strikingly" to
reinforce "the argument that equity cannot undertake now, any more
than it has in the past, to enforce political rights." See
189 U.S. at 189 U. S. 487
] Apart from this
traditional restriction upon the exercise of equitable
jurisdiction, there was another difficulty in Giles v.
The plaintiff there was, in effect, asking for
specific performance of his right under
Page 307 U. S. 273
Alabama electoral legislation. This presupposed the validity of
the legislation under which he was claiming. But the whole theory
of his bill was the invalidity of this legislation. Naturally
enough, this Court took his claim at its face value and found no
legislation on the basis of which specific performance could be
decreed. [Footnote 3
This case is very different from Giles v. Harris
difference having been explicitly foreshadowed by Giles v.
itself. In that case, this Court declared "we are not
prepared to say that an action at law could not be maintained on
the facts alleged in the bill." 189 U.S. at 189 U. S. 485
That is precisely the basis of the present action, brought under
the following "appropriate legislation" of Congress to enforce the
"Every person who, under color of any statute, . . . of any
State or Territory, subjects, or causes to be subjected, any
citizen of the United States . . . 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. . . . [Footnote 4
Page 307 U. S. 274
The Fifteenth Amendment secures freedom from discrimination on
account of race in matters affecting the franchise. Whosoever
"under color of any statute" subjects another to such
discrimination thereby deprives him of what the Fifteenth Amendment
secures and, under § 1979, becomes "liable to the party injured in
an action at law." The theory of the plaintiff's action is that the
defendants, acting under color of § 5654, did discriminate against
him because that Section inherently operates discriminatorily. If
this claim is sustained, his right to sue under R.S. § 1979
follows. The basis of this action is inequality of treatment,
though under color of law, not denial of the right to vote.
Compare Nixon v. Herndon, 273 U.
The other preliminary objection to the maintenance of this
action is likewise untenable. To vindicate his present grievance,
the plaintiff did not have to pursue whatever remedy may have been
open to him in the state courts. Normally, the state legislative
process, sometimes exercised through administrative powers
conferred on state courts, must be completed before resort to the
federal courts can be had. Prentis v. Atlantic Coast Line
Co., 211 U. S. 210
the state procedure open for one in the plaintiff's situation (§
5654) has all the indicia of a conventional judicial proceeding,
and does not confer upon the Oklahoma courts any of the
discretionary or initiatory functions that are characteristic of
administrative agencies. See
Section 1 of Article IV of
the Oklahoma Constitution; Oklahoma Cotton Ginners' Assn. v.
State, 174 Okla. 243
51 P.2d 327
Barring only exceptional circumstances, see e.g., Gilchrist v.
Interborough Rapid Transit Co., 279 U.
, or explicit statutory requirements,
48 Stat. 775; 50 Stat. 738; 28 U.S.C. § 41(1),
resort to a federal court may be had without first exhausting the
judicial remedies of state courts. Bacon v.
Page 307 U. S. 275
R. Co., 232 U. S. 134
Pacific Tel. & Tel. Co. v. Kuykenall, 265 U.
We therefore cannot avoid passing on the merits of plaintiff's
constitutional claims. The reach of the Fifteenth Amendment against
contrivances by a state to thwart equality in the enjoyment of the
right to vote by citizens of the United States regardless of race
or color has been amply expounded by prior decisions. Guinn v.
United States, 238 U. S. 347
Myers v. Anderson, 238 U. S. 36
The Amendment nullifies sophisticated as well as simple-minded
modes of discrimination. It hits onerous procedural requirements
which effectively handicap exercise of the franchise by the colored
race although the abstract right to vote may remain unrestricted as
to race. When, in Guinn v. United States, supra,
Oklahoma "grandfather clause" was found violative of the Fifteenth
Amendment, Oklahoma was confronted with the serious task of
devising a new registration system consonant with her own political
ideas but also consistent with the Federal Constitution. We are
compelled to conclude, however reluctantly, that the legislation of
1916 partakes too much of the infirmity of the "grandfather clause"
to be able to survive.
Section 5652 of the Oklahoma statutes makes registration a
prerequisite to voting. [Footnote
] By §§ 5654 and 5659, [Footnote 6
Page 307 U. S. 276
citizens who were qualified to vote in 1916 but had not voted in
1914 were required to register, save in the exceptional
circumstances, between April 30 and May 11, 1916, and, in default
of such registration, were perpetually disenfranchised. Exemption
from this onerous provision was enjoyed by all who had registered
in 1914. But this registration was held under the statute which was
condemned in the Guinn
case. Unfair discrimination was
thus retained by automatically granting voting privileges for life
to the white citizens whom the constitutional "grandfather clause"
had sheltered while subjecting colored citizens to a new burden.
The practical effect of the 1916 legislation was to accord to the
members of the negro race who had been discriminated against in the
outlawed registration system of 1914 not more than 12 days within
which to reassert constitutional rights which this Court found in
case to have been improperly taken from them. We
believe that the opportunity thus given negro voters to free
themselves from the effects of discrimination to which they should
never have been subjected was too cabined and confined. The
restrictions imposed must be judged with reference to those for
whom they were designed. It must be remembered that we are dealing
with a body of citizens lacking the habits and traditions of
political independence and otherwise living in circumstances which
do not encourage initiative and enterprise. To be sure, in
exceptional cases, a supplemental
Page 307 U. S. 277
period as available. But the narrow basis of the supplemental
registration, the very brief normal period of relief for the
persons and purposes in question, the practical difficulties, of
which the record in this case gives glimpses, inevitable in the
administration of such strict registration provisions, leave no
escape from the conclusion that the means chosen as substitutes for
the invalidated "grandfather clause" were themselves invalid under
the Fifteenth Amendment. They operated unfairly against the very
class on whose behalf the protection of the Constitution was here
The judgment of the Circuit Court of Appeals must, therefore, be
reversed, and the cause remanded to the District Court for further
proceedings in accordance with this opinion.
MR. JUSTICE McREYNOLDS and MR. JUSTICE BUTLER think that the
court below reached the right conclusion, and that its judgment
should be affirmed.
MR. JUSTICE DOUGLAS took no part in the consideration or
disposition of this case.
"It shall be the duty of the precinct registrar to register each
qualified elector of his election precinct who makes application
between the thirtieth day of April, 1916, and the eleventh day of
May, 1916, and such person applying shall at the time he applies to
register be a qualified elector in such precinct and he shall
comply with the provisions of this act, and it shall be the duty of
every qualified elector to register within such time; provided, if
any elector should be absent from the county of his residence
during such period of time, or is prevented by sickness or
unavoidable misfortune from registering with the precinct registrar
within such time, he may register with such precinct registrar at
any time after the tenth day of May, 1916, up to and including the
thirtieth day of June, 1916, but the precinct registrar shall
register no person under this provision unless he be satisfied that
such person was absent from the county or was prevented from
registering by sickness or unavoidable misfortune, as hereinbefore
provided. And provided that it shall be the mandatory duty of every
precinct registrar to issue registration certificates to every
qualified elector who voted at the general election held in this
state on the first Tuesday after the first Monday in November,
1914, without the application of said elector for registration,
and, to deliver such certificate to such elector if he is still a
qualified elector in such precinct and the failure to so register
such elector who voted in such election held in November, 1914,
shall not preclude or prevent such elector from voting in any
election in this state, and provided further, that, wherever any
elector is refused registration by any registration officer such
action may be reviewed by the district court of the county by the
aggrieved elector by his filing within ten days a petition with the
Clerk of said court, whereupon summons shall be issued to said
registrar requiring him to answer within ten days, and the district
court shall be a expeditious hearing and from his judgment an
appeal will lie at the instance of either party to the Supreme
Court of the State as in civil cases, and provided further, that
the provisions of this act shall not apply to any school district
elections. Provided further, that each county election board in
this state shall furnish to each precinct election board in the
respective counties a list of the voters who voted at the election
in November, 1914, and such list shall be conclusive evidence of
the right of such person to vote."
See also In re Sawer, 124 U. S. 200
Walton v. House of Rep., 265 U. S. 487
POMEROY, EQUITY § 1743 et seq.;
Pound, Equitable Relief
Against Defamation and Injuries to Personality, 29 HARV.L.REV 640,
"If the sections of the constitution concerning registration
were illegal in their inception, it would be a new doctrine in
constitutional law that the original invalidity could be cured by
an administration which defeated their intent. We express no
opinion as to the alleged fact of their unconstitutionality beyond
saying that we are not willing to assume that they are valid in the
face of the allegations and main object of the bill, for the
purpose of granting the relief which it was necessary to pray in
order that that object should be secured."
189 U.S. at 189 U. S. 487
Recognition of the difference between an action for damages and the
equitable relief prayed for in Giles v. Harris
repeated at the close of the opinion. See
189 U.S. at
189 U. S. 488
Justices Harlan, Brewer, and Brown were of the opinion that it was
competent for a federal court to grant even the equitable relief
asked for in Giles v. Harris.
The Act of April 20, 1871, c. 22, 17 Stat. 13, which became §
1979 of the Revised Statutes, and is now 8 U.S.C. § 43.
"It shall be the duty of every qualified elector in this state
to register as an elector under the provisions of this Act, and no
elector shall be permitted to vote at any election unless he shall
register as herein provided, and no elector shall be permitted to
vote in any primary election of any political party except of the
political party of which his registration certificate shows him to
be a member."
§ 2, Oklahoma Laws of 1916, c. 24.
"Any person who may become a qualified elector in any precinct
in this State after the tenth day of May, 1916, or after the
closing of any other registration period, may register as an
elector by making application to the registrar of the precinct in
which he is a qualified voter, not more than twenty nor less than
ten days before the day of holding any election and upon complying
with all the terms and provisions of this Act, and it shall be the
duty of precinct registrars to register such qualified electors in
their precinct under the terms and provisions of this Act,
beginning twenty days before the date of holding any election and
continuing for a period of ten days. Precinct registrars shall have
no authority to register electors at any other time except as
provided in this Act, and no registration certificate issued by any
precinct registrar at any other time except as herein provided
shall be valid."
§ 9, Oklahoma Laws of 1916, c. 24.