A statute of Texas provided:
"every political party in the 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.
. . ."
Acting under this statute, and not under any authorization from
the convention of their party, the Executive Committee of the
Democratic Party in Texas adopted a resolution that only white
Democrats should participate in the primary elections, thereby
excluding Negroes.
Held:
1. Whatever inherent power a state political party has to
determine the qualifications of its members resides in the party
convention, and not in any committee. P.
286 U. S.
84.
2. The power exercised by the Executive Committee in this
instance was not the power of the party as a voluntary
organization, but came from the statute. P.
286 U. S.
85.
3. The committee's action was therefore state action within the
meaning of the Fourteenth Amendment. P.
286 U. S.
88.
4. The resulting discrimination violates that Amendment. P.
286 U. S.
89.
5. Whether, in given circumstances, parties or their committees
are agencies of Government within the Fourteenth or the
Fifteenth
Page 286 U. S. 74
Amendment is a question which this Court must determine for
itself. P.
286 U. S.
88.
49 F.2d 1012 reversed.
Certiorari, 284 U.S. 601, to review the affirmance of a judgment
dismissing the complaint,
34 F.2d
464, in an action for damages against judges of a primary
election who refused to allow the plaintiff to vote.
Page 286 U. S. 81
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,
decided at the October term, 1926, this Court had before it a
statute of the State of Texas (Article 3093a, Revised Statutes,
afterwards numbered 3107) 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 (L 1927, c. 67)
Page 286 U. S. 82
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 nonmembership 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.2d
Page 286 U. S. 83
464, which was affirmed by the Circuit Court of Appeals for the
Firth Circuit, 49 F.2d 1012. 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;
Strauder v. West Virginia, 100 U.
S. 303;
Ex parte Virginia, 100 U.
S. 339,
100 U. S. 346;
James v. Bowman, 190 U. S. 127,
190 U. S. 136.
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 today
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 Laws); that nomination
Page 286 U. S. 84
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.
Page 286 U. S. 85
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 State had not conferred it, there would be
hardly color of right to give a basis for its exercise.
Our conclusion in that regard is not affected by what was ruled
by the Supreme Court of Texas in
Love v. Wilcox, 119 Tex.
256, 28 S.W.2d 515, 523, or by the Court of Civil Appeals in
White v. Lubbock, 30 S.W.2d 722.
Page 286 U. S. 86
The ruling in the first case was directed to the validity of the
provision whereby neither the party nor the committee is to be
permitted to make former political affiliations the test of party
regularity. There were general observations in the opinion as to
the functions of parties and committees. They do not constitute the
decision. The decision was merely this -- that
"the committee, whether viewed as an agency of the State or as a
mere agency of the party, is not authorized to take any action
which is forbidden by an express and valid statute."
The ruling in the second case, which does not come from the
highest court of the State, upholds the constitutionality of
section 3107 as amended in 1927, and speaks of the exercise of the
inherent powers of the party by the act of its proper officers.
There is nothing to show, however, that the mind of the court was
directed to the point that the members of a committee would not
have been the proper officers to exercise the inherent powers of
the party if the statute had not attempted to clothe them with that
quality. The management of the affairs of a group already
associated together as members of a party is obviously a very
different function from that of determining who the members of the
group shall be. If another view were to be accepted, a committee
might rule out of the party a faction distasteful to itself, and
exclude the very men who had helped to bring it into existence. In
any event, the Supreme Court of Texas has not yet spoken on the
subject with clearness or finality, and nothing in its
pronouncements brings us to the belief that, in the absence of a
statute or other express grant, it would recognize a mere committee
as invested with all the powers of the party assembled in
convention. Indeed, its latest decision dealing with any aspect of
the statute here in controversy, a decision handed down on April
21, 1932 (
Love v. Buckner, 49 S.W.2d 425), describes the
statute as constituting "a grant of power" to the State Executive
Committee
Page 286 U. S. 87
to determine who shall participate in the primary elections.
* What was
questioned in that case was the validity of a pledge exacted from
the voters that it was their
bona fide purpose to support
the party nominees. The court, in upholding the exaction, found a
basis for its ruling in another article of the Civil Statutes
(Article 3167), in an article of the Penal Code (Article 340), and
in the inherent power of the Committee to adopt regulations
reasonably designed to give effect to the obligation assumed by an
elector in the very act of voting. To clinch the argument, the
court then added that, if all these sources of authority were
inadequate, the Legislature had made in Article 3107 an express
"grant of power" to determine qualifications generally. There is no
suggestion in the opinion that the inherent power of the committee
was broad enough (apart from legislation) to permit it to prescribe
the extent of party membership, to say to a group of voters, ready
as was the petitioner to take the statutory pledge, that one class
should be eligible, and another not. On the contrary, the whole
opinion is instinct with the concession that pretensions so
extraordinary must find their warrant in a statute. The most that
can be said for the respondents is that the inherent powers of the
committee are still unsettled in the local courts. Nothing in the
state of the decisions requires us to hold that they have been
settled in a manner that would be subversive of the fundamental
postulates of party organization. The suggestion is offered that,
in default of inherent
Page 286 U. S. 88
power or of statutory grant the committee may have been armed
with the requisite authority by vote of the convention. Neither at
our bar nor on the trial was the case presented on that theory. At
every stage of the case the assumption has been made that
authority, if there was any, was either the product of the statute
or was inherent in the committee under the law of its creation.
We discover no significance, and surely no significance
favorable to the respondents, in earlier acts of legislation
whereby the power to prescribe additional qualifications was
conferred on local committees in the several counties of the state.
Laws 1903, c. 101, § 94. The very fact that such legislation was
thought necessary is a token that the committees were without
inherent power. We do not impugn the competence of the Legislature
to designate the agencies whereby the party faith shall be declared
and the party discipline enforced. The pith of the matter is simply
this, that, when those agencies are invested with an authority
independent of the will of the association in whose name they
undertake to speak, they become to that extent the organs of the
State itself, the repositories of official power. They are then the
governmental instruments whereby parties are organized and
regulated to the end that government itself may be established or
continued. What they do in that relation, they must do in
submission to the mandates of equality and liberty that bind
officials everywhere. They are not acting in matters of merely
private concern like the directors or agents of business
corporations. They are acting in matters of high public interest,
matters intimately connected with the capacity of government to
exercise its functions unbrokenly and smoothly. Whether in given
circumstances parties or their committees are agencies of
government within the Fourteenth or the Fifteenth Amendment is a
question which this Court will determine
Page 286 U. S. 89
for itself. It is not concluded upon such an inquiry by
decisions rendered elsewhere. The test is not whether the members
of the Executive Committee are the representatives of the State in
the strict sense in which an agent is the representative of his
principal. The test is whether they are to be classified as
representatives of the State to such an extent and in such a sense
that the great restraints of the Constitution set limits to their
action.
With the problem thus laid bare and its essentials exposed to
view, the case is seen to be ruled by
Nixon v. Herndon,
supra. Delegates of the State's power have discharged their
official functions in such a way as to discriminate invidiously
between white citizens and black.
Ex parte Virginia, supra;
Buchanan v. Warley, 245 U. S. 60,
245 U. S. 77.
The Fourteenth Amendment, adopted as it was with special solicitude
for the equal protection of members of the Negro race, lays a duty
upon the court to level by its judgment these barriers of
color.
The judgment below is reversed, and the cause remanded for
further proceedings in conformity with this opinion.
* "We are bound to give effect to a grant of power to the State
Executive Committee of a party to determine who shall participate
in the acts of the party otherwise than by voting in a primary,
when the Legislature grants the power in language too plain to
admit of controversy, and when the determination of the Committee
conflicts with no other statutory requirement or prohibition,
especially when the Committee's determination makes effectual the
public policy of the State as revealed in its statutes." Love v.
Buckner supra.
Separate opinion of MR. JUSTICE McREYNOLDS.
March 15, 1929, petitioner here brought suit for damages in the
United States District Court, Western Division of Texas, against
Condon and Kolle, theretofore judges in a Democratic primary
election. He claims they wrongfully deprived him of rights
guaranteed by the Fourteenth and Fifteenth Amendments, Federal
Constitution, by denying him the privilege of voting therein. Upon
motion, the trial court dismissed the petition, holding that it
failed to state a cause of action; the Circuit Court of Appeals
sustained this ruling. The matter is here by certiorari.
The original petition, or declaration, alleges:
L. A. Nixon, a Negro citizen of the United States and of Texas,
duly registered and qualified to vote in precinct
Page 286 U. S. 90
No. 9, El Paso County at the general election, and a member of
the Democratic party, was entitled to participate in the primary
election held by that party July 28, 1928, for nominating
candidates for state and other offices. He duly presented himself
and sought to cast his ballot. Defendants, the judges, refused his
request by reason of the following resolution theretofore adopted
by the State Democratic Executive Committee:
"Resolved: 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 further, that
the Chairman and Secretary of the State Democratic Executive
Committee be directed to forward to each Democratic County Chairman
in Texas a copy of this resolution for observance."
That the quoted resolution "was adopted by the State Democratic
Executive Committee of Texas under authority of the Act of the
Legislature" -- Ch. 67, approved June 7, 1927. Ch. 67 undertook to
repeal former Article 3107, [
Footnote 1] Ch. 13, Rev.Civil Stat. 1925, which had been
adopted in 1923, Ch. 32, § 1 (Article 3093a) and in lieu thereof to
enact the following:
"Article 3107 (Ch. 67, Acts 1927). 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
Page 286 U. S. 91
because of former political views or affiliations or because of
membership or nonmembership in organizations other than the
political party."
That, in 1923, prior to enactment of Chapter 67, the Legislature
adopted Article 3093a, [
Footnote
2] Revised Civil Statutes, declaring that no Negro should be
eligible to participate in a Democratic party primary election.
This was held invalid state action by
Nixon v. Herndon,
273 U. S. 536.
That, when Chapter 67 was adopted, only the Democratic party
held primary elections in Texas, and the legislative purpose was
thereby to prevent Nixon and other Negroes from participating in
such primaries.
That Chapter 67 and the above-quoted resolution of the Executive
Committee are inoperative, null, and void insofar as they exclude
Negroes from primaries. They conflict with the Fourteenth and
Fifteenth Amendments to the Federal Constitution and laws of the
United States.
That there are many thousand Negro Democratic voters in Texas.
The State is normally overwhelmingly Democratic, and nomination by
the primaries of that party is equivalent to an election.
Practically, there is no contest for state offices except amongst
candidates for such nominations.
That the defendants' action in denying petitioner the right to
vote was unlawful, deprived him of valuable political rights, and
damaged him $5,000. And for this sum he asks judgment.
Page 286 U. S. 92
The trial court declared [p. 468]:
"The court here holds that the State Democratic Executive
Committee of the State of Texas, at time of the passage of the
resolution here complained of, was not a body corporate to which
the Legislature of the State of Texas could delegate authority to
legislate, and that the members of said committee were not
officials of the State of Texas, holding position as officers of
the State of Texas, under oath, or drawing compensation from the
State, and not acting as a state governmental agency within the
meaning of the law, but only as private individuals holding such
position as members of said state Executive Committee by virtue of
action taken upon the part of members of their respective political
party; and this is also true as to defendants, they acting only as
representatives of such political party, viz. the Democratic party,
in connection with the holding of a Democratic primary election for
the nomination of candidates on the ticket of the Democratic party
to be voted on at the general election, and in refusing to permit
plaintiff to vote at such Democratic primary election defendants
were not acting for the State of Texas, or as a governmental agency
of said State."
Also [p. 469]
"that the members of a voluntary association, such as a
political organization, members of the Democratic party in Texas,
possess inherent power to prescribe qualifications regulating
membership of such organization, or political party. That this is,
and was, true without reference to the passage by the Legislature
of the State of Texas of said Article 3107, and is not affected by
the passage of said act, and such inherent power remains and exists
just as if said act had never been passed."
The Circuit Court of Appeals said [p. 1013]:
"The distinction between appellant's cases, the one under the
1923 statute and the other under the 1927 statute, is that he was
denied permission to vote in the former by
Page 286 U. S. 93
state statute, and in the latter by resolution of the State
Democratic Executive Committee. It is argued on behalf of appellant
that this is a distinction without a difference, and that the
State, through its Legislature, attempted by the 1927 act to do
indirectly what the Supreme Court had held it was powerless to
accomplish directly by the 1923 act."
"We are of opinion, however, that there is a vast difference
between the two statutes. The Fourteenth Amendment is expressly
directed against prohibitions and restraints imposed by the States,
and the Fifteenth protects the right to vote against denial or
abridgment by any State or by the United States; neither operates
against private individuals or voluntary associations.
United
States v. Cruikshank, 92 U. S. 542;
Virginia v.
Rives, 100 U. S. 313;
James v.
Bowman, 190 U. S. 127."
"A political party is a voluntary association, and, as such, has
the inherent power to prescribe the qualifications of its members.
The act of 1927 was not needed to confer such power; it merely
recognized a power that already existed.
Waples v.
Marrast, 108 Tex. 5;
White v. Lubbock, (Tex. Civ.
App.) 30 S.W.2d W.2d 722;
Grigsby v.
Harris, 27 F.2d
942. It did not attempt, as did the 1923 act, to exclude any
voter from membership in any political party. Precinct judges of
election are appointed by party Executive Committees, and are paid
for their services out of funds that are raised by assessments upon
candidates. Revised Civil Statutes of Texas, Sections 3104,
3108."
I think the judgment below is right, and should be affirmed.
The argument for reversal is this:
The statute -- Chapter 67, present Article 3107 -- declares that
every political party through its state Executive Committee
"shall have the power to prescribe the qualifications of its own
members and shall in its own
Page 286 U. S. 94
way determine who shall be qualified to vote or otherwise
participate in such political party."
The result, it is said, is to constitute the Executive Committee
an instrumentality of the State with power to take action,
legislative in nature, concerning membership in the party.
Accordingly, the attempt of the Democratic Committee to restrict
voting in primaries to white people amounted to state action to
that effect within the intendment of the Federal Constitution, and
was void under
Nixon v. Herndon, supra.
This reasoning rests upon an erroneous view of the meaning and
effect of the statute.
In
Nixon v. Herndon, the Legislature in terms forbade
all Negroes from participating in Democratic primaries. The
exclusion was the direct result of the statute, and this was
declared invalid because in conflict with the Fourteenth
Amendment.
The act now challenged withholds nothing from any Negro; it
makes no discrimination. It recognizes power in every political
party, acting through its Executive Committee, to prescribe
qualifications for membership, provided only that none shall be
excluded on account of former political views or affiliations, or
membership or nonmembership in any nonpolitical organization. The
difference between the two pronouncements is not difficult to
discover.
Nixon's present complaint rests upon the asserted invalidity of
the resolution of the Executive Committee, and, in order to
prevail, he must demonstrate that it amounted to direct action by
the State.
The plaintiff's petition does not attempt to show what powers
the Democratic party had entrusted to its state Executive
Committee. It says nothing of the duties of the committee as a
party organ; no allegation denies that, under approved rules and
resolutions, it may determine
Page 286 U. S. 95
and announce qualifications for party membership. We cannot
lightly suppose that it undertook to act without authority from the
party. Ordinarily, between conventions, party executive committees
have general authority to speak and act in respect to party
matters. There is no allegation that the questioned resolution
failed to express the party will. For present purposes, the
Committee's resolution must be accepted as the voice of the
party.
Petitioner insists that the Committee's resolution was
authorized by the State; the statute only recognizes party action,
and he may not now deny that the party had spoken. The exclusion
resulted from party action, and, on that footing, the cause must be
dealt with. Petitioner has planted himself there. Whether the cause
would be more substantial if differently stated, we need not
inquire.
As early as 1895 -- Ch. 34, Acts 1895 -- the Texas Legislature
undertook through penal statutes to prevent illegal voting in
political primaries, also false returns, bribery, etc. And later,
many, if not all, of the general safeguards designed to secure
orderly conduct of regular elections were extended to party
primaries.
By Acts of 1903 and 1905 and subsequent amendments, the
Legislature directed that only official ballots should be used in
all general elections. These are prepared, printed, and distributed
by public officials at public expense.
With adoption of the official ballot, it became necessary to
prescribe the methods for designating the candidates whose names
might appear on such ballot. Three or more have been authorized. A
party whose last candidate for Governor received 100,000 votes must
select its candidate through a primary election. Where a party
candidate has received less than 100,000, and more than 10,000,
votes, it may designate candidates through convention or primary,
as its Executive Committee may determine.
Page 286 U. S. 96
A written petition by a specified number of voters may be used
in behalf of an independent or nonpartisan candidate.
Some of the States have undertaken to convert the direct primary
into a legally regulated election. In others, Texas included, the
primary is conducted largely under party rules. Expenses are borne
by the party; they are met chiefly from funds obtained by
assessments upon candidates. A number of States (eleven perhaps)
leave the determination of one's right to participate in a primary
to the party, with or without certain minimum requirements stated
by statute. In "Texas, the party is free to impose and enforce the
qualifications it sees fit," subject to some definite restrictions.
See Primary Elections, Merriam and Overacker, pp. 66, 72,
73.
A "primary election," within the meaning of the Chapter of the
Texas Rev.Civil Stat. relating to nominations,
"means an election held by the members of an organized political
party for the purpose of nominating the candidates of such party to
be voted for at a general or special election, or to nominate the
county executive officers of a party."
Article 3100; General Laws 1905 (1st C.S.) Ch. 11, § 102. The
statutes of the State do not and never have undertaken to define
membership -- who shall be regarded as a
member -- in a
political party. They have said that
membership shall not
be denied to certain specified persons; otherwise, the matter has
been left with the party organization.
Since 1903 (Acts 1903, Ch. CI, § 94, [
Footnote 3] p. 150, 28th Leg.; Acts 1905, Ch. 11, §
103, p. 543, 29th Leg.), the statutes of Texas have recognized the
power of party Executive Committees to define the qualifications
for membership. The Act of 1923, Ch. 32, § 1 (Article 3093a), and
the Act
Page 286 U. S. 97
of 1927, Ch. 67, § 1 (Article 3107), recognize the authority of
the party through the Executive Committee, or otherwise, to specify
such qualifications throughout the State.
See Love v.
Wilcox, 119 Tex. 256, 28 S.W.2d 515, 523.
These acts and amendments also recognize the right of state and
county Executive Committees generally to speak and act for the
party concerning primaries. These committees appoint the necessary
officials, provide supplies, canvass the votes, collect
assessments, certify the successful candidates, pay expenses, and
do whatever is required for the orderly conduct of the primaries.
Their members are not state officials; they are chosen by those who
compose the party; they receive nothing from the State.
By the amendment of 1923, the Legislature undertook to declare
that
"all qualified voters under the laws and Constitution of the
State of Texas who are bona fide members of the Democratic party
shall be eligible to participate in any Democratic party primary
election, provided such voter complies with all laws and rules
governing party primary elections; however, in no event shall a
Negro be eligible to participate in a Democratic party primary
election held in the State of Texas."
Love v. Wilcox, supra, 274, 523. This enactment, held
inoperative by
Nixon v. Herndon, supra, (1927), was
promptly repealed.
The courts of Texas have spoken concerning the nature of
political primary elections and their relationship to the State.
And, as our present concern is with parties and legislation of that
State, we turn to them for enlightenment, rather than to general
observations by popular writers on public affairs.
In
Waples v. Marrast, 108 Tex. 5, 11, 12, decided in
1916, the Supreme Court declared:
"A political party is nothing more or less than a body of men
associated for the purpose of furnishing and maintaining
Page 286 U. S. 98
the prevalence of certain political principles or beliefs in the
public policies of the government. As rivals for popular favor they
strive at the general elections for the control of the agencies of
the Government as the means of providing a course for the
Government in accord with their political principles and the
administration of those agencies by their own adherents. According
to the soundness of their principles and the wisdom of their
policies, they serve a great purpose in the life of a Government.
But the fact remains that the objects of political organizations
are intimate to those who compose them. They do not concern the
general public. They directly interest, both in their conduct and
in their success, only so much of the public as are comprised in
their membership, and then only as members of the particular
organization. They perform no governmental function. They
constitute no governmental agency. The purpose of their primary
elections is merely to enable them to furnish their nominees as
candidates for the popular suffrage. In the interest of fair
methods and a fair expression by their members of their preference
in the selection of their nominees, the State may regulate such
elections by proper laws, as it has done in our general primary
law, and as it was competent for the Legislature to do by a proper
act of the character of the one here under review. But the payment
of the expenses of purely party elections is a different matter. On
principle, such expenses cannot be differentiated from any other
character of expense incurred in carrying out a party object, since
the attainment of a party purpose -- the election of its nominees
at the general elections through the unified vote of the party
membership, is necessarily the prime object of a party primary. . .
."
"To provide nominees of political parties for the people to vote
upon in the general elections is not the
Page 286 U. S. 99
business of the State. It is not the business of the State
because, in the conduct of the Government, the State knows no
parties, and can know none. If it is not the business of the State
to see that such nominations are made, as it clearly is not, the
public revenues cannot be employed in that connection. To furnish
their nominees as claimants for the popular favor in the general
elections is a matter which concerns alone those parties that
desire to make such nominations. It is alone their concern, because
they alone are interested in the success of their nominees. The
State, as a government, cannot afford to concern itself in the
success of the nominees of any political party, or in the elective
offices of the people being filled only by those who are the
nominees of some political party. Political parties are political
instrumentalities. They are in no sense governmental
instrumentalities. The responsible duties of the State to all the
people are to be performed and its high objects effected without
reference to parties, and they have no part or place in the
exercise by the State of its great province in governing the
people."
Koy v. Schneider, 110 Tex. 369, 376, 218 S.W. 479, 221
S.W. 880 (April 21, 1920):
"The act of the Legislature deals only with suffrage within the
party primary or convention, which is but an instrumentality of a
group of individuals for the accomplishment of party ends."
And see id., pages 394
et seq.
Cunningham v. McDermett, 277 S.W. 218 (Texas Court of
Civil Appeals, Oct. 22, 1925):
"Appellant contends that the Legislature, by prescribing how
party primaries must be conducted, turned the party into a
governmental agency, and that a candidate of a primary, being the
candidate of the governmental agency, should be protected from the
machinations of evilly disposed persons."
"With this proposition we cannot agree, but consider them as
they were held to be by our Supreme Court in
Page 286 U. S. 100
the case of
Waples v. Marrast, 108 Tex. 5, 184 S.W.
180, L. R. A. 1917A, 253, in which Chief Justice Phillips said:
'Political parties are political instrumentalities. They are in no
sense governmental instrumentalities.'"
Briscoe v. Boyle, 286 S.W. 275, 276 (Texas Court of
Civil Appeals, July 2, 1926): this case was decided by an inferior
court while the Act of 1923, Ch. 32, § 1, amending Article 3093,
was thought to be in force -- before
Nixon v. Herndon,
supra, ruled otherwise. It must be read with that fact in
mind. Among other things, the court said:
"In fine, the Legislature has in minute detail laid out the
process by which political parties shall operate the statute-made
machinery for making party nominations, and has so hedged this
machinery with statutory regulations and restrictions as to deprive
the parties and their managers of all discretion in the
manipulation of that machinery."
Love v. Wilcox, supra, 272 (Sup. Ct. May 17, 1930):
"We are not called upon to determine whether a political party
has power, beyond statutory control, to prescribe what persons
shall participate as voters or candidates in its conventions or
primaries. We have no such state of facts before us. The
respondents claim that the State Committee has this power, by
virtue of its general authority, to manage the affairs of the
party. The statute, Article 3107, Complete Tex.St. 1928 (Vernon's
Ann.Civ.St. art. 3107), recognizes this general authority of the
State Committee, but places a limitation on the discretionary power
which may be conferred on that committee by the party by declaring
that, though the party, through its State Executive Committee,
shall have the power to prescribe the qualifications of its own
members, and to determine who shall be qualified to vote and
otherwise participate, yet the committee shall not exclude any one
from participation in the party primaries because of former
political views or affiliations, or because of membership
Page 286 U. S. 101
or nonmembership in organizations other than the political
party. The committee's discretionary power is further restricted by
the statute directing that a single, uniform pledge be required of
the primary participants. The effect of the statutes is to decline
to give recognition to the lodgment of power in a State Executive
Committee, to be exercised at its discretion. The statutes have
recognized the right of the party to create an Executive Committee
as an agency of the party, and have recognized the right of the
party to confer upon that committee certain discretionary powers,
but have declined to recognize the right to confer upon the
Committee the discretionary power to exclude from participation in
the party's affairs any one because of former political views or
affiliations, or because of refusal to take any other than the
statutory pledge. It is obvious, we think, that the party itself
never intended to confer upon its Executive Committee any such
discretionary power. The party, when it selected its State
Committee, did so with full knowledge of the statutory limitations
on that Committee's authority, and must be held to have selected
the Committee with the intent that it would act within the powers
conferred, and within the limitations declared by the statute.
Hence, the Committee, whether viewed as an agency of the State or
as a mere agency of the party, is not authorized to take any action
which is forbidden by an express and valid statute."
Love v. Buckner 49 S.W.2d 425 (Sup.Ct., Texas, April
21, 1932).
The Court of Civil Appeals certified to the Supreme Court for
determination the question:
"Whether the Democratic State Executive Committee had lawful
authority to require otherwise lawfully qualified and eligible
Democratic voters to take the pledge specified in the resolution
adopted by the Committee at its meeting in March,"
1932.
Page 286 U. S. 102
The resolution directed that no person should be permitted to
participate in any precinct or county Democratic convention held
for the purpose of selecting delegates to the state convention at
which delegates to the National Democratic Convention are selected
unless such person shall take a written pledge to support the
nominees for President and Vice President.
"The Court answers that the Executive Committee was authorized
to require the voters to take the specified pledge."
It said:
"The Committee's power to require a pledge is contested on the
ground that the Committee possesses no authority over the
conventions of its party not granted by statute, and that the
statutes of Texas do not grant, but negative, the Committee's power
to exact such a pledge."
"We do not think it consistent with the history and usages of
parties in this State nor with the course of our legislation to
regard the respective parties or the state Executive Committees as
denied all power over the party membership, conventions, and
primaries save where such power may be found to have been expressly
delegated by statute. On the contrary, the statutes recognize party
organizations including the state committees, as the repositories
of party power, which the Legislature has sought to control or
regulate only so far as was deemed necessary for important
governmental ends, such as purity of the ballot and integrity in
the ascertainment and fulfillment of the party will as declared by
its membership."
"Without either statutory sanction or prohibition, the party
must have the right to adopt reasonable regulations for the
enforcement of such obligations to the party from its members as
necessarily arise from the nature and purpose of party government.
. . . "
Page 286 U. S. 103
"We are forced to conclude that it would not be beyond the power
of the party, through a customary agency such as its state
Executive Committee, to adopt regulations designed merely to
enforce an obligation arising from the very act of a voter in
participating in party control and party action, though the
statutes were silent on the subject. . . ."
"The decision in
Love v. Wilcox, 119 Tex. 256, gave
effect to the legislative intent by vacating action of the State
Committee violative of express and valid statutes. Our answer to
the certified question likewise gives effect to the legislative
intent in upholding action of the State Committee in entire accord
with the governing statutes, as well as with party custom."
The reasoning advanced by the court to support its conclusion
indicates some inadvertence or possibly confusion. The difference
between statutes which recognize and those which confer power is
not always remarked --
e.g.,
"With regard to the state committee's power to exact this
pledge, the statutes are by no means silent. The statutes do not
deny the power, but plainly recognize and confer same."
But the decision itself is a clear affirmation of the general
powers of the state Executive Committee under party custom to speak
for the party and especially to prescribe the prerequisites for
membership and for "voters of said political party," in the absence
of statutory inhibition. The point actually ruled is inconsistent
with the notion that the Executive Committee does not speak for the
organization; also inconsistent with the view that the committee's
powers derive from state statutes.
If statutory recognition of the authority of a political party
through its Executive Committee to determine who shall participate
therein gives to the resolves of such party or committee the
character and effect of action by the State, of course the same
rule must apply when party
Page 286 U. S. 104
conventions are so treated, and it would be difficult logically
to deny like effect to the rules and bylaws of social or business
clubs, corporations, and religious associations, etc., organized
under charters or general enactments. The State acts through duly
qualified officers, and not through the representatives of mere
voluntary associations.
Such authority as the State of Texas has to legislate concerning
party primaries is derived in part from her duty to secure order,
prevent fraud, etc., and in part from obligation to prescribe
appropriate methods for selecting candidates whose names shall
appear upon the official ballots used at regular elections.
Political parties are fruits of voluntary action. Where there is
no unlawful purpose, citizens may create them at will, and limit
their membership as seems wise. The State may not interfere. White
men may organize; blacks may do likewise. A woman's party may
exclude males. This much is essential to free government.
If any political party as such desires to avail itself of the
privilege of designating candidates whose names shall be placed on
official ballots by the State, it must yield to reasonable
conditions precedent laid down by the statutes. But its general
powers are not derived from the State, and proper restrictions or
recognition of powers cannot become grants.
It must be inferred from the provisions in her statutes and from
the opinions of her courts that the State of Texas has intended to
leave political parties free to determine who shall be admitted to
membership and privileges, provided that none shall be excluded for
reasons which are definitely stated and that the prescribed rules
in respect of primaries shall be observed in order to secure
official recognition of nominees therein for entry upon the ballots
intended for use at general elections.
Page 286 U. S. 105
By the enactment now questioned, the Legislature refrained from
interference with the essential liberty of party associations and
recognized their general power to define membership therein.
The words of the statute disclose such purpose, and the
circumstances attending its passage add emphasis. The act of 1923
had
forbidden Negroes to participate in Democratic
primaries.
Nixon v. Herndon (March, 1927)
supra,
held the inhibition invalid. Shortly thereafter (June, 1927), the
Legislature repealed it and adopted the Article now numbered 3107
(Rev. Stats. 1928) and here under consideration. The fair
conclusion is that, accepting our ruling as conclusive, the
lawmakers intended expressly to rescind action adjudged beyond
their powers, and then clearly to announce recognition of the
general right of political parties to prescribe qualifications for
membership. The contrary view disregards the words that "every
political
party . . . shall in its own way determine who
shall be qualified to vote or otherwise participate in such
political party," and really imputes to the Legislature an attempt
indirectly to circumvent the judgment of this Court. We should
repel this gratuitous imputation; it is vindicated by no
significant fact.
The notion that the statute converts the Executive Committee
into an agency of the State also lacks support. The language
employed clearly imports that the political party, not the State,
may act through the Committee. As shown above, since the act of
1903, the Texas laws have recognized the authority of Executive
Committees to announce the party will touching membership.
And if to the considerations already stated there be added the
rule announced over and over again that, when possible, statutes
must be so construed as to avoid unconstitutionality, there can
remain no substantial reason for upsetting the Legislature's
laudable effort to retreat from
Page 286 U. S. 106
an untenable position by repealing the earlier act, and then
declare the existence of party control over membership therein to
the end that there might be orderly conduct of party affairs,
including primary elections.
The resolution of the Executive Committee was the voice of the
party, and took from appellant no right guaranteed by the Federal
Constitution or laws. It was incumbent upon the judges of the
primary to obey valid orders from the Executive Committee. They
inflicted no wrong upon Nixon.
A judgment of affirmance should be entered.
I am authorized to say that MR. JUSTICE VAN DEVANTER, MR.
JUSTICE SUTHERLAND, and MR. JUSTICE BUTLER concur in this
opinion.
[
Footnote 1]
Original Act. 3107 -- Rev.Civ.Stats. 1925:
"In no event shall a Negro be eligible to participate in a
Democratic party primary election held in the State of Texas, and
should a Negro vote in a Democratic primary election, such ballot
shall be void and election officials are herein directed to throw
out such ballot and not count the same."
[
Footnote 2]
[Acts 2d C.S. 1923, p. 74] Article 3093a from Acts 1923.
"All qualified voters under the laws and constitution of the
State of Texas who are bona fide members of the Democratic party
shall be eligible to participate in any Democratic party primary
election, provided such voter complies with all laws and rules
governing party primary elections; however, in no event shall a
Negro be eligible to participate in a Democratic party primary
election held in the State of Texas, and should a Negro vote in a
Democratic primary election, such ballot shall be void and election
officials are herein directed to throw out such ballot and not
count the same."
[
Footnote 3]
Acts 1903, c. 101.
"Sec. 94. . . . provided, that the county Executive Committee of
the party holding any primary election may prescribe additional
qualifications necessary to participate therein."