Petitioners, qualified Negro voters of a Texas County, sued to
determine the legality of their being excluded, solely because of
their race and color, from voting in elections held by an
Association consisting of all qualified white voters in the County.
The Association held an election in each election year to select
candidates for county offices to run for nomination in the official
Democratic primary. The Association's elections were not governed
by state laws, and did not utilize state elective machinery or
funds. Candidates elected by the Association were not certified by
the Association as its candidates in the Democratic primary, but
filed their own names as candidates. However, for more than 60
years, the Association's county-wide candidates had invariably been
nominated in the Democratic primaries and elected to office. The
District Court found that the Association was a political
organization or party, and that its chief object had always been to
deny Negroes any voice or part in the election of county
officials.
Held:
1. The combined election machinery of the Association and the
Democratic Party deprives petitioners of their right to vote on
account of their race and color, contrary to the Fifteenth
Amendment. P.
345 U. S.
470.
2. The case is remanded to the District Court to enter such
orders and decrees as are necessary and proper under the
jurisdiction it has retained under 28 U.S.C. § 2202. P.
345 U. S.
470.
3. In exercising this jurisdiction, the District Court is left
free to hold hearings to consider and determine what provisions are
essential to afford Negro citizens of the County full protection
from such future discriminatory election practices which deprive
citizens of voting rights because of their color. P.
345 U. S.
470.
193 F.2d 600, reversed.
For opinion of MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS
and MR. JUSTICE BURTON,
see post, p.
345 U. S. 462.
For opinion of MR. JUSTICE FRANKFURTER,
see post, p.
345 U. S.
470.
Page 345 U. S. 462
For concurring opinion of MR. JUSTICE CLARK, joined by THE CHIEF
JUSTICE, MR. JUSTICE REED and MR. JUSTICE JACKSON,
see
post, p.
345 U. S.
477.
For dissenting opinion of MR. JUSTICE MINTON,
see post,
p.
345 U. S.
484.
The District Court issued a declaratory judgment holding invalid
racial discriminations in a pre-primary election in a Texas County,
declined to issue an injunction, but retained jurisdiction to grant
further appropriate relief.
90 F. Supp.
595. The Court of Appeals reversed. 193 F.2d 600. This Court
granted certiorari. 344 U.S. 883. Judgment of the Court of Appeals
reversed, and cause remanded to the District Court for further
proceedings, p.
345 U. S.
470.
MR. JUSTICE BLACK announced the judgment of the Court and an
opinion in which MR. JUSTICE DOUGLAS and MR. JUSTICE BURTON
join.
In
Smith v. Allwright, 321 U.
S. 649, we held that rules of the Democratic Party of
Texas excluding Negroes from voting in the party's primaries
violated the Fifteenth Amendment. While no state law directed such
exclusion, our decision pointed out that many party activities were
subject to considerable statutory control. This case raises
questions concerning the constitutional power of a Texas county
political organization called the Jaybird Democratic Association or
Jaybird Party to exclude Negroes from its primaries on racial
grounds. The Jaybirds deny that their racial exclusions violate
the
Page 345 U. S. 463
Fifteenth Amendment. They contend that the Amendment applies
only to elections or primaries held under state regulation, that
their association is not regulated by the state at all, and that it
is not a political party, but a self-governing voluntary club. The
District Court held the Jaybird racial discriminations invalid, and
entered judgment accordingly.
90 F. Supp.
595. The Court of Appeals reversed, holding that there was no
constitutional or congressional bar to the admitted discriminatory
exclusion of Negroes, because Jaybird's primaries were not to any
extent state controlled. 193 F.2d 600. We granted certiorari. 344
U.S. 883.
There was evidence that:
The Jaybird Association or Party was organized in 1889. Its
membership was then and always has been limited to white people;
they are automatically members if their names appear on the
official list of county voters. It has been run like other
political parties, with an executive committee named from the
county's voting precincts. Expenses of the party are paid by the
assessment of candidates for office in its primaries. Candidates
for county offices submit their names to the Jaybird Committee in
accordance with the normal practice followed by regular political
parties all over the country. Advertisements and posters proclaim
that these candidates are running subject to the action of the
Jaybird primary. While there is no legal compulsion on successful
Jaybird candidates to enter Democratic primaries, they have nearly
always done so, and, with few exceptions since 1889, have run and
won without opposition in the Democratic primaries and the general
elections that followed. Thus, the party has been the dominant
political group in the county since organization, having endorsed
every county-wide official elected since 1889.
It is apparent that Jaybird activities follow a plan
purposefully designed to exclude Negroes from voting and,
Page 345 U. S. 464
at the same time, to escape the Fifteenth Amendment's command
that the right of citizens to vote shall neither be denied nor
abridged on account of race. These were the admitted party purposes
according to the following testimony of the Jaybird's
president:
"Q. . . . Now Mr. Adams, will you tell me specifically what is
the specific purpose of holding these elections and carrying on
this organization like you do?"
"A. Good government."
"Q. Now I will ask you to state whether or not it is the opinion
and policy of the Association that to carry on good government they
must exclude negro citizens?"
"A. Well, when we started, it was, and it is still that way, I
think."
"Q. And then one of the purposes of your organization is for the
specific purpose of excluding negroes from voting, isn't it?"
"A. Yes."
"Q. And that is your policy?"
"A. Yes."
"Q. I will ask you, that is the reason you hold your election in
May, rather than in June or July, isn't it?"
"A. Yes."
"Q. Because if you held it in July, you would have to abide by
the statutes and the law by letting them vote?"
"A. They do vote in July."
"Q. And if you held yours at that time, they would have to vote
too, wouldn't they?"
"A. Why sure."
"Q. And you hold it in May so they won't have to?"
"A. Well, they don't vote in ours, but they can vote on anybody
in the July election they want to. "
Page 345 U. S. 465
"Q. But you are not answering my question. My question is that
you hold yours in May so you won't have to let them vote, don't
you?"
"A. Yes."
"Q. And that is your purpose?"
"A. Yes."
"Q. And your intention?"
"A. Yes."
"Q. And to have a vote of the white population at a time when
the negroes can't vote, isn't that right?"
"A. That's right."
"Q. That is the whole policy of your Association?"
"A. Yes."
"Q. And that is its purpose?"
"A. Yes."
The District Court found that the Jaybird Association was a
political organization or party; that the majority of white voters
generally abide by the results of its primaries and support in the
Democratic primaries the persons endorsed by the Jaybird primaries,
and that the chief object of the Association has always been to
deny Negroes any voice or part in the election of Fort Bend County
officials.
The facts and findings bring this case squarely within the
reasoning and holding of the Court of Appeals for the Fourth
Circuit in its two recent decisions about excluding Negroes from
Democratic primaries in South Carolina.
Rice v. Elmore,
165 F.2d 387, and
Baskin v. Brown, 174 F.2d 391. [
Footnote 1] South Carolina had
repealed
Page 345 U. S. 466
every trace of statutory or constitutional control of the
Democratic primaries. It did this in the hope that, thereafter, the
Democratic Party or Democratic "Clubs" of South Carolina would be
free to continue discriminatory practices against Negroes as
voters. The contention there was that the Democratic "Clubs" were
mere private groups; the contention here is that the Jaybird
Association is a mere private group. The Court of Appeals, in
invalidating the South Carolina practices, answered these
formalistic arguments by holding that no election machinery could
be sustained if its purpose or effect was to deny Negroes on
account of their race an effective voice in the governmental
affairs of their country, state, or community. In doing so, the
Court relied on the principle announced in
Smith v. Allwright,
supra, 321 U.S. at
321 U. S. 664,
that the constitutional right to be free from racial discrimination
in voting
". . . is not to be nullified by a state through casting its
electoral process in a form which permits a private organization to
practice racial discrimination in the election."
The South Carolina cases are in accord with the commands of the
Fifteenth Amendment and the laws passed pursuant to it. That
Amendment provides as follows:
"The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account
of race, color, or previous condition of servitude. "
Page 345 U. S. 467
The Amendment bans racial discrimination in voting by both state
and nation. It thus establishes a national policy, obviously
applicable to the right of Negroes not to be discriminated against
as voters in elections to determine public governmental policies or
to select public officials, national, state, or local. Shortly
after its adoption Mr. Chief Justice Waite speaking for this Court
said:
"It follows that the amendment has invested the citizens of the
United States with a new constitutional right which is within the
protecting power of Congress. That right is exemption from
discrimination in the exercise of the elective franchise on account
of race, color, or previous condition of servitude."
United States v. Reese, 92 U. S.
214,
92 U. S. 218.
Other cases have reemphasized the Fifteenth Amendment's specific
grant of this new constitutional right. [
Footnote 2] Not content to rest congressional power to
protect this new constitutional right on the necessary and
proper
Page 345 U. S. 468
clause of the Constitution, the Fifteenth Amendment's framers
added § 2, reading:
"The Congress shall have power to enforce this article by
appropriate legislation."
And Mr. Justice Miller speaking for this Court declared that the
Amendment's granted right to be free from racial discrimination " .
. . should be kept free and pure by congressional enactments
whenever that is necessary."
Ex parte Yarbrough,
110 U. S. 651,
110 U. S. 665.
See also United States v. Reese, supra, at
92 U. S. 218.
And see Mr. Justice Bradley's opinion on circuit in
United States v. Cruikshank, 1 Woods 308, 314-316,
320-323. Acting pursuant to the power granted by the second section
of the Fifteenth Amendment, Congress in 1870 provided as
follows:
"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."
8 U.S.C. § 31.
The Amendment, the congressional enactment, and the cases make
explicit the rule against racial discrimination in the conduct of
elections. Together, they show the meaning of "elections." Clearly
the Amendment includes any election in which public issues are
decided or public officials selected. [
Footnote 3] Just as clearly, the Amendment
Page 345 U. S. 469
excludes social or business clubs. And the statute shows the
congressional mandate against discrimination whether the voting on
public issues and officials is conducted in community, state or
nation. Size is not a standard.
It is significant that precisely the same qualifications as
those prescribed by Texas entitling electors to vote at
county-operated primaries are adopted as the sole qualifications
entitling electors to vote at the county-wide Jaybird primaries
with a single proviso -- Negroes are excluded. Everyone concedes
that such a proviso in the county-operated primaries would be
unconstitutional. The Jaybird Party thus brings into being and
holds precisely the kind of election that the Fifteenth Amendment
seeks to prevent. When it produces the equivalent of the prohibited
election, the damage has been done.
For a state to permit such a duplication of its election
processes is to permit a flagrant abuse of those processes to
defeat the purposes of the Fifteenth Amendment. The use of the
county-operated primary to ratify the result of the prohibited
election merely compounds the offense. It violates the Fifteenth
Amendment for a state, by such circumvention, to permit within its
borders the use of any device that produces an equivalent of the
prohibited election.
The only election that has counted in this Texas county for more
than fifty years has been that held by the Jaybirds from which
Negroes were excluded. The Democratic primary and the general
election have become no more than the perfunctory ratifiers of the
choice that has already been made in Jaybird elections from which
Negroes have been excluded. It is immaterial that the state does
not control that part of this elective process which it leaves for
the Jaybirds to manage. The Jaybird primary has become an integral
part, indeed the only effective part, of the elective process that
determines who shall rule and govern in the county. The effect of
the whole
Page 345 U. S. 470
procedure, Jaybird primary plus Democratic primary plus general
election, is to do precisely that which the Fifteenth Amendment
forbids -- strip Negroes of every vestige of influence in selecting
the officials who control the local county matters that intimately
touch the daily lives of citizens.
We reverse the Court of Appeals' judgment reversing that of the
District Court. We affirm the District Court's holding that the
combined Jaybird-Democratic-general election machinery has deprived
these petitioners of their right to vote on account of their race
and color. The case is remanded to the District Court to enter such
orders and decrees as are necessary and proper under the
jurisdiction it has retained under 28 U.S.C. § 2202. In exercising
this jurisdiction, the Court is left free to hold hearings to
consider and determine what provisions are essential to afford
Negro citizens of Fort Bend County full protection from future
discriminatory Jaybird-Democratic-general election practices which
deprive citizens of voting rights because of their color.
Reversed and remanded.
[
Footnote 1]
It has been suggested that there is a crucial distinction
between this case and the South Carolina primary cases. There, it
is said, the names of Democratic nominees were placed on the
state's general election ballots as Democratic nominees. Here,
Jaybird nominees are not put on any ballot as Jaybird nominees;
they enter their own names as candidates in the Democratic primary.
This distinction is not one of substance, but of form, and a
statement of this Court in
Smith v. Allwright, supra, at
321 U. S. 661,
seems appropriate:
"
Such a variation in the result from so slight a change in
form influences us to consider anew the legal validity of the
distinction which has resulted in barring Negroes from
participating in the nominations of candidates of the Democratic
party in Texas."
(Emphasis supplied.) The same may be said about the attempted
distinction between the "two-step" exclusion process in South
Carolina and the "three-step" exclusion process in Texas.
[
Footnote 2]
"In
United States v. Reese, supra, p.
92 U. S.
214, we hold that the Fifteenth Amendment has invested
the citizens of the United States with a new constitutional right
which is exemption from discrimination in the exercise of the
elective franchise on account of race, color, or previous condition
of servitude. From this, it appears that the right of suffrage is
not a necessary attribute of national citizenship, but that
exemption from discrimination in the exercise of that right on
account of race, &c, is. The right to vote in the States comes
from the States, but the right of exemption from the prohibited
discrimination comes from the United States. The first has not been
granted or secured by the Constitution of the United States, but
the last has been."
United States v. Cruikshank, 92 U. S.
542,
92 U. S.
555-556. To the same effect,
see Ex parte
Yarbrough, 110 U. S. 651,
110 U. S.
664-665;
Logan v. United States, 144 U.
S. 263,
144 U. S. 286.
The Amendment has been held "self-executing."
See Guinn v.
United States, 238 U. S. 347,
238 U. S.
362-363.
[
Footnote 3]
"We may mystify anything. But if we take a plain view of the
words of the Constitution, and give to them a fair and obvious
interpretation, we cannot fail in most cases of coming to clear
understanding of its meaning. We shall not have far to seek. We
shall find it on the surface, and not in the profound depths of
speculation."
Ex parte Siebold, 100 U. S. 371,
100 U. S.
393.
MR. JUSTICE FRANKFURTER.
Petitioners are Negroes who claim that they and all Negroes
similarly situated in Fort Bend County, Texas, are denied all voice
in the primary elections for county offices by the activities of
respondent association, the Jaybird Democratic Association. The
Jaybird Association was organized in 1889, and from that time until
the present has selected, first in mass meetings but for some time
by ballot of its members, persons whom the organization indorses
for election in the Democratic primary for county office. The
Association has never permitted Negroes to participate in its
selection of the candidates to be indorsed; balloting is open only
to all white citizens
Page 345 U. S. 471
of the county qualified under State law to vote. The District
Court granted a declaratory judgment that Negroes in the county be
allowed to participate in the balloting of the Association. The
Court of Appeals reversed, saying that, although the white voters
in the county are "vainly holding" to "outworn and outmoded"
practices, the action of the Association was not "action under
color of state law," and therefore not in violation of federal
law.
The evidence, summarized by formal stipulation, shows that all
rules of the Association are made by its members themselves or by
its Executive Committee. Membership, defined by the rules of the
Association, consists of the entire white voting population as
shown in poll lists prepared by the county. The time of balloting,
in what are called the Jaybird primaries, is set by the Executive
Committee of the Association for a day early in May of each
election year. The expenses of these primaries, the officiating
personnel, the balloting places, the determination of the
winner-all aspects of these primaries, are exclusively controlled
by the Association. The balloting rules in general follow those
prescribed by the State laws regulating primaries.
See
Vernon's Tex.Stat. 1948 (Rev.Civ.Stat.) Tit. 50, c. 13, now
revised, 9 Vernon's Tex.Civ.Stat., 1952, c. 13. But formal State
action, either by way of legislative recognition or official
authorization, is wholly wanting.
The successful candidates in the Jaybird primaries, in formal
compliance with State rules in that regard, file individually as
candidates in the Democratic primary held on the fourth Saturday in
July. No mention is made in the filing or in the listing of the
candidates on the Democratic primary ballot that they are the
Jaybird indorsees. That fact is conveyed to the public by word of
mouth, through newspapers, and by other private means. There is no
restriction on filing by anyone else
Page 345 U. S. 472
as a candidate in the Democratic primary, nor on voting by
Negroes in that official primary.
For the sixty years of the Association's existence, the
candidate ultimately successful in the Democratic primary for every
county-wide office was the man indorsed by the Jaybird Association.
Indeed, other candidates almost never file in the Democratic
primary. This continuous success over such a period of time has
been the result of action by practically the entire qualified
electorate of the county, barring Negroes.
This case is for me by no means free of difficulty. Whenever the
law draws a line between permissive and forbidden conduct, cases
are bound to arise which are not obviously on one side or the
other. These dubious situations disclose the limited utility of the
figure of speech, a "line," in the law. Drawing a "line" is
necessarily exercising a judgment, however confined the
conscientious judgment may be within the bounds of constitutional
and statutory provisions, the course of decisions, and the
presuppositions of the judicial process. If "line" is in the main a
fruitful tool for dividing the sheep from the goats, it must not be
forgotten that, since the "line" is figurative, the place of this
or that case in relation to it cannot be ascertained externally,
but is a matter of the mind.
Close analysis of what it is that the Fifteenth Amendment
prohibits must be made before it can be determined what the
relevant line is in the situation presented by this case. The
Fifteenth Amendment, not the Fourteenth, outlawed discrimination on
the basis of race or color with respect to the right to vote.
Concretely, of course, it was directed against attempts to bar
Negroes from having the same political franchise as white folk.
"The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account
of race, color, or previous condition of
Page 345 U. S. 473
servitude."
U.S.Const., Amend. XV, § 1. The command against such denial or
abridgment is directed to the United States and to the individual
States. Therefore, violation of this Amendment and the enactments
passed in enforcement of it must involve the United States or a
State. In this case, the conduct that is assailed pertains to the
election of local Texas officials. To find a denial or abridgment
of the guaranteed voting right to colored citizens of Texas solely
because they are colored, one must find that the State has had a
hand in it.
The State, in these situations, must mean not private citizens,
but those clothed with the authority and the influence which
official position affords. The application of the prohibition of
the Fifteenth Amendment to "any State" is translated by legal
jargon to read "state action." This phrase gives rise to a false
direction in that it implies some impressive machinery or
deliberative conduct normally associated with what orators call a
sovereign state. The vital requirement is State responsibility --
that somewhere, somehow, to some extent, there be an infusion of
conduct by officials, panoplied with State power, into any scheme
by which colored citizens are denied voting rights merely because
they are colored.
As the action of the entire white voting community, the Jaybird
primary is, as a practical matter, the instrument of those few in
this small county who are politically active -- the officials of
the local Democratic party and, we may assume, the elected
officials of the county. As a matter of practical politics, those
charged by State law with the duty of assuring all eligible voters
an opportunity to participate in the selection of candidates at the
primary -- the county election officials who are normally leaders
in their communities -- participate by voting in the Jaybird
primary. They join the white voting community in proceeding with
elaborate formality, in almost all respects parallel to the
procedures dictated by Texas
Page 345 U. S. 474
law for the primary itself, to express their preferences in a
wholly successful effort to withdraw significance from the
State-prescribed primary, to subvert the operation of what is
formally the law of the State for primaries in this county.
The legal significance of the Jaybird primary must be tested
against the cases which, in an endeavor to screen what is
effectively an exertion of State authority in preventing Negroes
from exercising their constitutional right of franchise, have
pierced the various manifestations of astuteness. In the last of
the series,
Smith v. Allwright, 321 U.
S. 649, we held that the State regulation there of
primaries conducted by a political party made the party "required
to follow these legislative directions an agency of the state
insofar as it determines the participants in a primary election."
Id. at
321 U. S. 663.
Alternative routes have been suggested for concluding that the
Jaybird primary is "so slight a change in form,"
id. at
321 U. S. 661,
that the result should not differ in substance from that of
Smith v. Allwright. The District Court found that the
Jaybird Association is a political party within the meaning of the
Texas legislation regulating the administration of primaries by
political parties; it said that the Association could not avoid
that result by holding its primary on a different date and by
utilizing different methods than those prescribed by the
statutes.
Whether the Association is a political party regulated by Texas,
and thus subject to a duty of nondiscrimination, or is, as it
claims, clearly not a party within the meaning of that legislation,
failing as it does to attempt to comply with a number of the State
requirements, particularly as to the date of the "primary," is a
question of State law not to be answered in the first instance by a
federal court. We do not know what the Texas Supreme Court would
say. An operation such
Page 345 U. S. 475
as the Jaybird primary may be found by the Texas court to
satisfy Texas law although it does not come within the formal
definition; it may so be found because long accepted customs and
the habits of a people may generate "law" as surely as a formal
legislative declaration, and indeed, sometimes even in the face of
it.
See, e.g., Nashville, Chattanooga & St. Louis R. Co. v.
Browning, 310 U. S. 362,
310 U. S. 369.
But even if the Jaybird Association is a political party, a federal
court cannot say that a political party in Texas is to hold a
primary open to all on a day other than that fixed by Texas
statute. This would be an inadmissible intervention of the federal
judiciary into the political process of a State. If such a remedy
is to be derived from a finding that the Jaybird Association is a
political party, it is one that must be devised by the Texas
courts. For the same reason, we cannot say that the Jaybird primary
is a "primary" within the meaning of Texas law, and so regulated by
Texas law that
Smith v. Allwright would apply.
But assuming, as I think we must, that the Jaybird Association
is not a political party holding a state-regulated primary, we
should nonetheless decide this case against respondents on the
ground that, in the precise situation before us, the State
authority has come into play.
The State of Texas has entered into a comprehensive scheme of
regulation of political primaries, including procedures by which
election officials shall be chosen. The county election officials
are thus clothed with the authority of the State to secure
observance of the State's interest in "fair methods and a fair
expression" of preferences in the selection of nominees.
Cf.
Waples v. Marrast, 108 Tex. 5, 12, 184 S.W. 180, 183. If the
Jaybird Association, although not a political party, is a device to
defeat the law of Texas regulating primaries, and if the electoral
officials, clothed with State power in the county, share in that
subversion, they cannot divest themselves of the State
authority
Page 345 U. S. 476
and help as participants in the scheme. Unlawful administration
of a State statute fair on its face may be shown
"by extrinsic evidence showing a discriminatory design to favor
on individual or class over another not to be inferred from the
action itself,"
Snowden v. Hughes, 321 U. S. 1,
321 U. S. 8; here,
the county election officials aid in this subversion of the State's
official scheme of which they are trustees, by helping as
participants in the scheme.
This is not a case of occasional efforts to mass voting
strength. Nor is this a case of boss control, whether crudely or
subtly exercised. Nor is this a case of spontaneous efforts by
citizens to influence votes or even continued efforts by a fraction
of the electorate in support of good government. This is a case in
which county election officials have participated in and condoned a
continued effort effectively to exclude Negroes from voting. Though
the action of the Association as such may not be proscribed by the
Fifteenth Amendment, its role in the entire scheme to subvert the
operation of the official primary brings it "within reach of the
law. . . . [T]hey are bound together as the parts of a single plan.
The plan may make the parts unlawful." Mr. Justice Holmes, speaking
for the Court, in
Swift and Company v. United States,
196 U. S. 375,
196 U. S.
396.
The State here devised a process for primary elections. The
right of all citizens to share in it, and not to be excluded by
unconstitutional bars, is emphasized by the fact that, in Texas,
nomination in the Democratic primary is tantamount to election. The
exclusion of the Negroes from meaningful participation in the only
primary scheme set up by the State was not an accidental, unsought
consequence of the exercise of civic rights by voters to make their
common viewpoint count. It was the design, the very purpose, of
this arrangement that the Jaybird primary in May exclude Negro
participation in July. That it was the action in part of the
election officials charged by
Page 345 U. S. 477
Texas law with the fair administration of the primaries, brings
it within the reach of the law. The officials made themselves party
to means whereby the machinery with which they are entrusted does
not discharge the functions for which it was designed.
It does not follow, however, that the relief granted below was
proper. Since the vice of this situation is not that the Jaybird
primary itself is the primary discriminatorily conducted under
State law, but is that the determination there made becomes, in
fact, the determination in the Democratic primary by virtue of the
participation and acquiescence of State authorities, a federal
court cannot require that petitioners be allowed to vote in the
Jaybird primary. The evil here is that the State, through the
action and abdication of those whom it has clothed with authority,
has permitted white voters to go through a procedure which
predetermines the legally devised primary. To say that Negroes
should be allowed to vote in the Jaybird primary would be to say
that the State is under a duty to see to it that Negroes may vote
in that primary. We cannot tell the State that it must participate
in and regulate this primary; we cannot tell the State what
machinery it will use. But a court of equity can free the lawful
political agency from the combination that subverts its capacity to
function. What must be done is that this county be rid of the means
by which the unlawful "usage," R.S. § 2004, 8 U.S.C. § 31, in this
case asserts itself.
MR. JUSTICE CLARK, with whom the CHIEF JUSTICE, MR. JUSTICE
REED, and MR. JUSTICE JACKSON join, concurring.
The issue is whether the Jaybird Democratic Association of Fort
Bend County, Texas, by excluding Negroes from its primaries, has
denied to Negro citizens of the county a right to vote secured by
the Fifteenth Amendment.
Page 345 U. S. 478
On March 16, 1950, petitioners, on behalf of themselves and
similarly situated Negro citizens in Fort Bend County, instituted a
class action against respondents individually and as officers of
the Jaybird Democratic Association. [
Footnote 2/1] The complaint, in substance, charged that
the Negro petitioners were duly qualified voters of the Texas who,
for many years and solely because of their race and color, had been
denied the right to vote in the primaries of the Association, a
political party. Contending that these practices transgressed the
Constitution and laws of the United States, [
Footnote 2/2] petitioners sought declaratory and
injunctive relief. [
Footnote 2/3]
Respondents insisted
Page 345 U. S. 479
that the Jaybird Democratic Association was not a political
party regulated by Texas statutes, but merely a private voluntary
group. The District Court held that the Jaybird Democratic
Association was a political party, and ruled its discriminatory
exclusion of Negroes from the primary invalid. [
Footnote 2/4] Judgment accordingly entered declared
petitioners legally entitled to vote in the Jaybird primary. The
District Court refused an injunction, but retained jurisdiction to
grant further appropriate relief. [
Footnote 2/5] The Court of Appeals reversed; in
Page 345 U. S. 480
its view the discriminatory exclusions were not reached by the
terms of the Constitution and congressional enactments. [
Footnote 2/6]
An old pattern in new guise is revealed by the record. [
Footnote 2/7] The Jaybird Democratic
Association of Fort Bend County was founded in 1889 to promote
"good government" in the post-Reconstruction period. During its
entire life span, the Association has restricted membership to
whites. In earlier years, the members at mass meetings determined
their choice of candidates to support at forthcoming official
elections. Subsequently, the Association developed a system closely
paralleling the structure of the Democratic Party. The Association
is governed by an Executive Committee of twenty-two persons, one
from each voting precinct in the county. The Committee in each
election year sets the date of the Jaybird primary for selecting by
ballot the candidates to be endorsed by the Association for public
office in the county. The machinery of the Jaybird Democratic
Association primary now differs from the state-regulated Democratic
Party primary mainly in the Association's prohibition of more than
two consecutive terms for officeholders, the absence of a pledge on
the ballot at the Jaybird primary, and the Association's practice
of not officially filing as a ticket the names of candidates
successful in its balloting. And, for more than a half century, the
Association has adhered to its guiding principle: to deny the Negro
voters of Fort Bend County any effective voice in their
government.
The Court of Appeals, in reversing the District Court, largely
relied on what it deemed
"the settled course of decision culminating in
Collins v.
Hardyman, 341 U.S.
Page 345 U. S. 481
651, that it was not against individual, but against state,
action that the Fourteenth and Fifteenth Amendments and 8 U.S.C. §§
43 and 47 were, and are, directed. [
Footnote 2/8]"
But
Collins dealt not with racial discrimination at the
ballot box, but merely "a lawless political brawl, precipitated by
a handful of white citizens against other white citizens." 341 U.S.
at
341 U. S. 662.
In any event,
Collins adjudicated that Congress, in the
narrow class of conspiracies defined by the Civil Rights Statutes,
had not included the conspiracy charged in that particular
complaint; expressly refraining from constitutional questions,
ibid., that case cannot be held controlling here.
[
Footnote 2/9]
In our view, the Court of Appeals has misconceived the thrust of
our recent decisions. The Fifteenth Amendment secures the franchise
exercised by citizens of the United States against abridgment by
any state on the basis of race or color. In
Smith v.
Allwright, 321 U. S. 649
(1944), this Court held that the Democratic Party of itself, and
perforce any other political party, is prohibited by that Amendment
from conducting a racially discriminatory primary election. By the
rule of that case, any "part of the machinery for choosing
officials" becomes subject to the Constitution's restraints.
Id. at
321 U. S. 664.
There, as here, we dealt with an organization that took the form of
"voluntary association" of unofficial character. But because, in
fact, it functioned as a part of the state's electoral machinery,
we held it controlled
Page 345 U. S. 482
by the same constitutional limitations that ruled the official
general election.
We agree with Chief District Judge Kennery that the Jaybird
Democratic Association is a political party [
Footnote 2/10] whose activities fall within the
Fifteenth Amendment's self-executing ban.
See Guinn v. United
States, 238 U. S. 347,
238 U. S. 363
(1915);
Myers v. Anderson, 238 U.
S. 368,
238 U. S.
379-380 (1915). [
Footnote
2/11] Not every private club, association or league organized
to influence public candidacies or political action must conform to
the Constitution's restrictions on political parties. Certainly a
large area of freedom permits peaceable assembly and concerted
private action for political purposes to be exercised separately by
white and colored citizens alike. More, however, is involved
here.
The record discloses that the Jaybird Democratic Association
operates as part and parcel of the Democratic Party, an
organization existing under the auspices of Texas law. [
Footnote 2/12] Each maintains the same
basic qualification for membership: eligibility to vote under Texas
law. Although the state Democratic Party in Texas, since
Smith
v. Allwright, supra, no longer can restrict its membership to
whites, the Jaybird Democratic Association bars Negroes from its
ranks. In May of each election year, it conducts a full-scale white
primary in which each candidate campaigns for his candidacy subject
to the action of that primary and the Democratic primary of July,
linking
Page 345 U. S. 483
the two primaries together. After gaining the Jaybird Democratic
Association's endorsement, the announced winners after full
publicity then file in the July Democratic primary. The record
reveals that 3,910 eligible voters were listed in Fort Bend County
in the presidential year 1944; though only 2,032 participated in
the July primary under the Democratic banner, 3,790 members voted
in the May balloting of the Jaybird Democratic Association. In
1946, an off-year for presidential balloting, eligible voters
numbered 4,460; the Association's May primary polled 3,309 votes,
and the Democratic July primary counted but 2,996. And while the
lists in 1948, again a presidential year, show only 3,856 eligible
electors in the County, the Jaybird primary mustered a total vote
of 4,055, compared with 3, 108 in the primary voting in July.
Significantly, since 1889, the winners of the Jaybird Democratic
Association balloting, with but a single exception shown by this
record, [
Footnote 2/13] ran
unopposed and invariably won in the Democratic July primary and the
subsequent general elections for county-wide office.
Quite evidently, the Jaybird Democratic Association operates as
an auxiliary of the local Democratic Party organization, selecting
its nominees and using its machinery for carrying out an admitted
design of destroying the weight and effect of Negro ballots in Fort
Bend
Page 345 U. S. 484
County. To be sure, the Democratic primary and the general
election are nominally open to the colored elector. But his must be
an empty vote case after the real decisions are made. And because
the Jaybird-indorsed nominee meets no opposition in the Democratic
primary, the Negro minority's vote is nullified at the sole stage
of the local political process where the bargaining and interplay
of rival political forces would make it count.
The Jaybird Democratic Association device, as a result, strikes
to the core of the electoral process in Fort Bend County. Whether
viewed as a separate political organization or as an adjunct of the
local Democratic Party, the Jaybird Democratic Association is the
decisive power in the county's recognized electoral process. Over
the years, its balloting has emerged as the locus of effective
political choice. Consonant with the broad and lofty aims of its
Framers, the Fifteenth Amendment, as the Fourteenth, "refers to
exertions of state power in all forms."
Shelley v. Kramer,
334 U. S. 1,
334 U. S. 20
(1948). Accordingly, when a state structures its electoral
apparatus in a form which devolves upon a political organization
the uncontested choice of public officials, that organization
itself, in whatever disguise, takes on those attributes of
government which draw the Constitution's safeguards in play.
Smith v. Allwright, supra, at
321 U. S. 664;
cf. United States v. Classic, 313 U.
S. 299,
313 U. S. 324
(1941);
Lane v. Wilson, 307 U. S. 268,
307 U. S. 275
(1939).
In sum, we believe that the activities of the Jaybird Democratic
Association fall within the broad principle laid down in
Smith
v. Allwright, supra. For that reason we join the judgment of
the Court.
[
Footnote 2/1]
See Fed.Rules Civ.Proc. 23.
[
Footnote 2/2]
Petitioners mainly rested their claims on the Fourteenth and
Fifteenth Amendments and 8 U.S.C. § 31.
Article XIV.
"SECTION 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws."
Article XV.
"SECTION 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of
servitude."
"SECTION 2. The Congress shall have power to enforce this
article by appropriate legislation."
8 U.S.C. § 31:
"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."
[
Footnote 2/3]
28 U.S.C. (Supp. V) §§ 1331, 2201. Petitioners abandoned a claim
to money damages, apparently grounded on 8 U.S.C. §§ 43, 47.
[
Footnote 2/4]
90 F. Supp.
595. The District Judge supported his conclusions by reference
to Art. 3163, Vernon's Texas Civil Statutes:
"Art. 3163. Parties without State organization"
"Any political party without a State organization desiring to
nominate candidates for county and precinct offices only may
nominate such candidates therefor under the provisions of this
title by primary elections or by a county convention held on the
legal primary election day, which convention shall be composed of
delegates from various election precincts in said county, elected
therein at primary conventions held in such precincts between the
hours of eight a.m. and ten p.m. of the preceding Saturday. All
nominations made by any such parties shall be certified to the
county clerk by the chairman of the county committee of such party,
and, after taking the same course as nominations of other parties
so certified, shall be printed on the official ballot in a separate
column, headed by the name of the party; provided, a written
application for such printing shall have been made to the county
judge, signed and sworn to by three percent of the entire vote cast
in such county at the last general election."
This provision has been substantially recodified as Art. 13.54,
Vernon's Texas Election Code (1952).
[
Footnote 2/5]
"Further necessary or proper relief based on a declaratory
judgment or decree may be granted, after reasonable notice and
hearing, against any adverse party whose rights have been
determined by such judgment."
28 U.S.C. (Supp. V) § 2202.
The District Judge refused injunctive relief because the affairs
of the Jaybird Democratic Association are controlled by an
Executive Committee of twenty-two persons; the four named
defendants before the court had not the power to permit petitioners
to vote in the Jaybird balloting.
[
Footnote 2/6]
193 F.2d 600 (1952).
[
Footnote 2/7]
Cf. Nixon v. Herndon, 273 U. S. 536
(1927);
Nixon v. Condon, 286 U. S. 73
(1932);
Smith v. Allwright, 321 U.
S. 649 (1944).
[
Footnote 2/8]
193 F.2d at 602.
And see id., 193 F.2d at 605.
[
Footnote 2/9]
Since, in this case, we deem the activities of the Jaybird
Democratic Association unlawful under the independent reach of the
Fifteenth Amendment, the applicability of 8 U.S.C. § 31 need not be
considered now.
See United States v. Reese, 92 U. S.
214,
92 U. S. 218
(1876);
United States v. Cruikshank, 92 U. S.
542,
92 U. S.
555-556 (1876).
Cf. James v. Bowman,
190 U. S. 127
(1903),
with Ex parte Yarbrough, 110 U.
S. 651 (1884),
and Myers v. Anderson,
238 U. S. 368,
238 U. S. 379
(1915).
[
Footnote 2/10]
See Smith v. Allwright, 321 U.
S. 649,
321 U. S. 662
(1944);
Nixon v. Condon, 286 U. S. 73,
286 U. S. 88-89
(1932).
See 345
U.S. 461fn2/4|>note 4,
supra.
[
Footnote 2/11]
See also Neal v. Delaware, 103 U.
S. 370,
103 U. S.
389-390 (1881);
Ex parte Yarbrough,
110 U. S. 651,
110 U. S. 665
(1884).
[
Footnote 2/12]
The record in this case comprises not only a concise stipulation
of facts, but also 43 additional pages of directly relevant
testimony. Obviously the whole of the record underlay the
determinations of the courts below, and must be considered in an
appellate review of their decisions.
[
Footnote 2/13]
In 1944, Mr. Charles Schultz emerged victorious from the Jaybird
balloting and was indorsed as its candidate for County Judge. In
the July Democratic primary, Schultz triumphed by a vote of 2,025
to 1 for Mr. Mike Dornak. Schultz held office for two terms, until
1948. In that year, in accord with a Jaybird Association rule
prohibiting more than two consecutive terms in office, Mr. Baker
received the Jaybird indorsement for the county judgeship. Schultz,
however, insisted on running in the Democratic primary; he lost out
to Baker by a vote of 2,209 to 803.
See R. 34, 79. The
record reveals, however, that the Jaybird-indorsed candidates for
precinct office were not quite as consistently successful.
MR. JUSTICE MINTON, dissenting.
I am not concerned in the least as to what happens to the
Jaybirds or their unworthy scheme. I am concerned about what this
Court says is "state action" within the
Page 345 U. S. 485
meaning of the Fifteenth Amendment to the Constitution. For,
after all, this Court has power to redress a wrong under that
Amendment only if the wrong is done by the State. That has been the
holding of this Court since the earliest cases. THE CHIEF JUSTICE
for a unanimous Court in the recent case of
Shelley v.
Kraemer, 334 U. S. 1,
334 U. S. 13,
stated the law as follows:
"Since the decision of this Court in the
Civil Rights
Cases, 109 U. S. 3 (1883), the principle
has become firmly embedded in our constitutional law that the
action inhibited by the first section of the Fourteenth Amendment
is only such action as may fairly be said to be that of the States.
That Amendment erects no shield against merely private conduct,
however discriminatory or wrongful."
(Emphasis supplied.)
*
As I understand MR. JUSTICE BLACK's opinion, he would have this
Court redress the wrong even if it was individual action alone. I
can understand that praiseworthy position, but it seems to me it is
not in accord with the Constitution. State action must be
shown.
MR. JUSTICE FRANKFURTER recognizes that it must be state action,
but he seems to think it is enough to constitute state action if a
state official participates in the Jaybird primary. That I cannot
follow. For it seems clear to me that everything done by a person
who is an official is not done officially, and as a representative
of the State. However, I find nothing in this record that shows the
state or county officials participating in the Jaybird primary.
MR. JUSTICE CLARK seems to recognize that state action must be
shown. He finds state action in assumption, not in facts. This
record will be searched in vain for
Page 345 U. S. 486
one iota of state action sufficient to support an anemic
inference that the Jaybird Association is in any way associated
with, or forms a part of or cooperates in any manner with, the
Democratic Party of the County or State, or with the State. It
calls itself the Jaybird Democratic Association because its
interest is only in the candidates of the Democratic Party in the
county, a position understandable in Texas. It is a gratuitous
assumption on the part of MR. JUSTICE CLARK that:
"Quite evidently the Jaybird Democratic Association operates as
an auxiliary of the local Democratic Party organization, selecting
its nominees and using its machinery for carrying out an admitted
design of destroying the weight and effect of Negro ballots in Fort
Bend County."
The following stipulation in the record shows the
unsubstantiality of that statement just quoted from MR. JUSTICE
CLARK's opinion. I quote the stipulation:
"There is no compulsion upon any person who receives the
indorsement of the Jaybird Democratic Association of Fort Bend
County, Texas, for a particular office, to run for that office or
any other office. In the event such indorsee of the Association
does desire to run for such office, he may do so, but if he does so
run for such office, he must himself file his application with the
Executive Chairman or Committee of the Democratic Party for the
position on the Democratic Party ballot for the July primary of
such Democratic Party, and must himself pay the fee as provided by
law. Neither the Jaybird Democratic Association nor its Executive
Committee files an application with the Democratic Party Executive
Committee or Chairman that the Jaybird Democratic Association
nominee be placed on the ballot for the Democratic Party July
primary election.
Page 345 U. S. 487
There is nothing on the ballot of the Democratic Party primary
to indicate that any person appearing thereon does or does not have
the indorsement of the Jaybird Democratic Association."
"The name of the applicant for a place on the Democratic Party
ballot is not placed on said ballot unless he complies with the
laws of the Texas, even though such applicant were indorsed by the
Jaybird Democratic Association, and every qualified applicant who
makes the required application to the Democratic Executive
Committee and pays the requisite fee is placed on the Democratic
Party primary ballot for the July Democratic primary, though not
indorsed by the Jaybird Democratic Association."
"No member of the Negro race, nor any other person qualified
under the laws of the Texas to become a candidate, has been refused
a place on the Democratic Party primary ballot for Fort Bend
County, Texas, by the Democratic Party."
Neither is there any more evidence that the Jaybird Association
avails itself of or conforms in any manner to any law of the Texas.
As to the Jaybird Association's relation to the State, I again
quote the stipulation in the record:
"There is no political organization in Fort Bend County, Texas,
by the official name or designation 'Jaybird Party.' At all times
since 1889, however, there has been and still is, an organization
in Fort Bend County, Texas, by the name of 'Jaybird Democratic
Association of Fort Bend County, Texas.' Said Association, however,
has not since 1938, and it does not: (a) have a State organization;
(b) follow or attempt to comply with any of the provisions of
Article 3163 of the Revised Statutes of Texas, or
Page 345 U. S. 488
of any other statutes of the Texas with reference to primary
elections or general elections; (c) hold any convention or 'primary
election' on the legal primary election day, to-wit: the fourth
Saturday in July or the fourth Saturday in August, of any year; (d)
hold any primary convention in any precinct on the Saturday
preceding a legal primary election day; (e) by the chairman of a
county committee or otherwise, certify to the County Clerk of Fort
Bend County, Texas, or to the County Judge thereof, or to any
official committee or other representative of the Democratic or
Republican party, any nominations or indorsements made by the
Association; (f) have, or cause to be, printed in a separate column
headed by the Association name any nominations on any official
ballot used, or for use in, a primary or general election held on a
legal primary election day or general election day; (nor does the
name, Jaybird Democratic Association of Fort Bend County, Texas, or
any part or indication thereof, appear on any ballot in any
election other than the primaries, or other special voting
occasions, held by the Association itself and alone); (g) make, or
cause to be made, a written application to the County Judge for
such printing, signed and sworn to by 3% of the entire vote cast in
Fort Bend County at the last preceding general election."
"
* * * *"
"No officer nor Committee of such Association certifies the
result of the Association membership vote, nor any nominations of
the Association, to the County Clerk of Fort Bend County, Texas,
nor to the Democratic Party Executive Committee nor to the
Committee or official of any party with a state-wide
organization."
"
* * * *
Page 345 U. S.
489
"
"In the last few years, some of the members of the Negro race
have offered to vote in the Democratic Party primaries, and no
member of the Negro race who had qualified under the laws of the
Texas to vote has been refused the right to vote. Some of the
members of the Negro race have offered to vote in a general
election in Fort Bend County, Texas, and no member of the Negro
race qualified to vote has been refused a vote."
"
* * * *"
"The Jaybird Democratic Association of Fort Bend County, Texas,
is not, and does not have, a state organization, but limits its May
and June Association primaries to only the county and precinct
offices, except that the membership of the Association does vote
its preference for the office of District Clerk in Fort Bend
County."
"The persons seeking the indorsement of the Jaybird Democratic
Association of Fort Bend County Texas at its May or June Primaries
are not required by the Association to file any expense account and
do not file expense accounts with any State or local official,
Committee or Board."
These stipulations from the record show the complete absence of
any compliance with the state law or practice, or cooperation by or
with the State. Even if it be said to be a political organization,
the Jaybird Association avails itself of no state law open to
political organizations, such as Art. 3163.
However, its action is not forbidden by the law of the Texas.
Does such failure of the State to act to prevent individuals from
doing what they have the right as individuals to do amount to state
action? I venture the opinion it does not.
Page 345 U. S. 490
MR. JUSTICE CLARK's opinion agrees with District Judge Kennerly
that this Jaybird Democratic Association is a political party whose
activities fall within the Fifteenth Amendment's self-executing
ban. In the same paragraph, he admits that not all meetings for
political action come under the constitutional ban. Surely white or
colored members of any political faith or economic belief may hold
caucuses. It is only when the State, by action of its legislative
bodies or action of some of its officials in their official
capacity, cooperates with such political party or gives it
direction in its activities that the Federal Constitution may come
into play. A political organization not using state machinery or
depending upon state law to authorize what it does could not be
within the ban of the Fifteenth Amendment. As the stipulation
quoted shows, the Jaybird Association did not attempt to conform or
in any way to comply with the statutes of Texas covering primaries.
No action of any legislative or
quasi-legislative body or
of any state official or agency ever in any manner denied the vote
to Negroes, even in the Jaybird primaries.
So it seems to me clear there is no state action, and the
Jaybird Democratic Association is in no sense a part of the
Democratic Party. If it is a political organization, it has made no
attempt to use the State, or the State to use it, to carry on its
poll.
Rice v. Elmore, 165 F.2d 387, is cited as authority for
the position of the petitioners. In that case, South Carolina had
repealed all its laws relating to the conduct of primaries. The
only primary conducted was by the Democratic Party of South
Carolina in accordance with rules adopted by the Party. It was
stipulated on the trial of that case that the Democratic Party
"conducts nominating primaries and thereafter prints its ballots
for use in the General Elections with the names of its nominees
Page 345 U. S. 491
thereon which ballots are distributed by party officials and
placed at the General Election precincts in South Carolina for use
by any electors who choose to use such ballots in voting in any
such General Election in South Carolina."
The District Court specifically found in Finding 19:
"There is no General Election ballot in South Carolina. The only
printed ballots available in General Elections in South Carolina
are ballots prepared by the political parties giving only the names
of their respective candidates."
Finding 14 stated:
"During the past 25 years, the Democratic Party of South
Carolina has been the only political party in South Carolina which
has held state-wide primaries for nomination of candidates for
Federal and State offices."
Thus, it will be seen that there, the Democratic Party furnished
not only the candidate in the general election, but it also
furnished the only ballot one could vote in that election. So the
State in the general election accepted the ballot of the Democratic
Party as its official ballot, and on that ballot no Negro had been
permitted to vote. Clearly, the State adopted the Democratic
Party's procedure as its action. The State and the Democratic Party
effectively cooperated to carry on this two-step election
procedure.
No such action is taken by the Jaybird Association. It neither
files, certifies, nor supplies anything for the primary or
election. The winner of the poll in the Jaybird Association contest
files in the Democratic primary, where he may and sometimes has
received opposition, and successful opposition, in precinct
contests for County Commissioner, Justice of the Peace, and
Constable. There is no rule of the Jaybird Association that
requires the successful party in its poll to file in the Democratic
primary or elsewhere. It is all individual, voluntary action.
Neither the State nor the Democratic Party
Page 345 U. S. 492
avails itself of the action of or cooperates in any manner with
the Jaybird Association.
Smith v. Allwright, 321 U. S. 649, is
in no manner controlling. In that case, the State had set up the
machinery for the Democratic Party to conduct its primary. The
State of Texas made the Democratic Party its agent for the
conducting of a Democratic primary. Of course, the Democratic Party
could not run that primary, set up under the auspices of the State,
in a manner to exclude citizens of Texas therefrom because of their
race. That such is the basis of the Court's opinion in
Smith v.
Allwright, supra, is apparent from the following quotation
taken from that case:
"Primary elections are conducted by the party under state
statutory authority. The county executive committee selects
precinct election officials and the county, district, or state
executive committees, respectively, canvass the returns. These
party committees or the state convention certify the party's
candidates to the appropriate officers for inclusion on the
official ballot for the general election. No name which has not
been so certified may appear upon the ballot for the general
election as a candidate of a political party. . . ."
"
* * * *"
"We think that this statutory system for the selection of party
nominees for inclusion on the general election ballot makes the
party
which is required to follow these legislative
directions an agency of the state insofar as it determines the
participants in a primary election. The party takes its character
as a state agency from the duties imposed upon it by state
statutes; the duties do not become matters of private law because
they are performed by a political party."
321 U.S.
649,
321 U. S. 663.
(Emphasis supplied.)
Page 345 U. S. 493
This case does not hold that a group of Democrats, white, black,
male, female, native-born or foreign, economic royalists or
workingmen, may not caucus or conduct a straw vote. What the
Jaybird Association did here was to conduct as individuals,
separate and apart from the Democratic Party or the State, a straw
vote as to who should receive the Association's endorsement for
county and precinct offices. It has been successful in seeing that
those who receive its endorsement are nominated and elected. That
is true of concerted action by any group. In numbers there is
strength. In organization there is effectiveness. Often a small
minority of stockholders control a corporation. Indeed, it is
almost an axiom of corporate management that a small, cohesive
group may control, especially in the larger corporations, where the
holdings are widely diffused.
I do not understand that concerted action of individuals which
is successful somehow becomes state action. However, the candidates
endorsed by the Jaybird Association have several times been
defeated in primaries and elections. Usually, but not always, since
1938, only the Jaybird-endorsed candidate has been on the
Democratic official ballot in the County.
In the instant case, the State of Texas has provided for
elections and primaries. This is separate and apart and wholly
unrelated to the Jaybird Association's activities. Its activities
are confined to one County where a group of citizens have appointed
themselves the censors of those who would run for public offices.
Apparently, so far they have succeeded in convincing the voters of
this County in most instances that their supported candidates
should win. This seems to differ very little from situations common
in many other places far north of the Mason-Dixon line, such as
areas where a candidate must obtain the approval of a religious
group. In other localities, candidates are carefully selected by
both parties to
Page 345 U. S. 494
give proper weight to Jew, Protestant, and Catholic, and certain
posts are considered the sole possession of certain ethnic groups.
The propriety of these practices is something the courts sensibly
have left to the good or bad judgment of the electorate. It must be
recognized that elections and other public business are influenced
by all sorts of pressures from carefully organized groups. We have
pressure from labor unions, from the National Association of
Manufacturers, from the Silver Shirts, from the National
Association for the Advancement of Colored People, from the Ku Klux
Klan, and others. Far from the activities of these groups being
properly labeled as state action, under either the Fourteenth or
the Fifteenth Amendment, they are to be considered as attempts to
influence or obtain state action.
The courts do not normally pass upon these pressure groups,
whether their causes are good or bad, highly successful or only
so-so. It is difficult for me to see how this Jaybird Association
is anything but such a pressure group. Apparently it is believed in
by enough people in Fort Bend County to obtain a majority of the
votes for its approved candidates. This differs little from the
situation in many parts of the "Bible Belt" where a church stamp of
approval or that of the Anti-Saloon League must be put on any
candidate who does not want to lose the election.
The State of Texas, in its elections and primaries, takes no
cognizance of this Jaybird Association. The State treats its
decisions apparently with the same disdain as it would the approval
or condemnation of judicial candidates by a bar association poll of
its members.
In this case, the majority have found that this pressure group's
work does constitute state action. The basis of this conclusion is
rather difficult to ascertain. Apparently it derives mainly from a
dislike of the goals of the Jaybird Association. I share that
dislike. I fail to see how it makes state action. I would
affirm.
* The Fifteenth Amendment, as here involved, is also directed at
State action only.