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GROVEY v. TOWNSEND, 295 U.S. 45 No. 563.
1935
Argued March 11, 1935.
Decided April 1, 1935.
[295 U.S. 45, 46] Mr. J. Alston Atkins, of Houston, Tex., for petitioner.
Mr. Justice ROBERTS delivered the opinion of the Court.
The petitioner, by complaint filed in the justice court of Harris county,
Tex., alleged that although he is a citizen of the United States and of the
state and county, and a member of and believer in the tenets of the
Democratic Party, the respondent, the county clerk, a state officer, having
as such only public functions to perform, refused him a ballot for a
Democratic Party primary election, because he is of the negro race. He
demanded ten dollars damages. The pleading quotes articles of the Revised
Civil Statutes of Texas which require the nomination of candidates at
primary elections by any organized political party whose nominees received
100,000 votes or more at the preceding general election, and recites that
agreeably to these enactments a Democratic primary election was held on July
28, 1934, at which petitioner had the right to vote. Referring to statutes
[295 U.S. 45, 47] which regulate absentee voting at primary elections, the
complaint states the petitioner expected to be absent from the county on the
date of the primary election, and demanded of the respondent an absentee
ballot, which was refused him in virtue of a resolution of the state
Democratic Convention of Texas, adopted May 24, 1932, which is:
'Be it resolved, that all white citizens of the State of Texas who are
qualified to vote under the Constitution and laws of the state shall be
eligible to membership in the Democratic party and as such entitled to
participate in its deliberations.'
The complaint charges that the respondent acted without legal excuse and his
wrongful and unlawful acts constituted a violation of the Fourteenth and
Fifteenth Amendments of the Federal Constitution.
A demurrer, assigning as reasons that the complaint was insufficient in law
and stated no cause of action, was sustained; and a motion for a new trial,
reasserting violation of the federal rights mentioned in the complaint, was
overruled. We granted certiorari,1 because of the importance of the federal
question presented, which has not been determined by this court. 2 Our
jurisdiction is clear, as the justice court is the highest state court in
which a decision may be had,3 and the validity of the Constitution and
statutes of the state was drawn in question on the ground of their being
repugnant to the Constitution of the United States. 4 [295 U.S. 45, 48] The
charge is that respondent, a state officer, in refusing to furnish
petitioner a ballot, obeyed the law of Texas, and the consequent denial of
petitioner's right to vote in the primary election because of his race and
color was state action forbidden by the Federal Constitution; and it is
claimed that former decisions require us so to hold. The cited cases are,
however, not in point. In Nixon v. Herndon, 273 U.S. 536, 47 S. Ct. 446, a
statute which enacted that 'in no event shall a negro be eligible to
participate in a Democratic party primary election held in the State of
Texas,' was pronounced offensive to the Fourteenth Amendment. In Nixon v.
Condon, 286 U.S. 73, 52 S.Ct. 484, 485, 88 A.L.R. 458, a statute was drawn
in question which provided that '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.' We held this was a delegation of state power to the state executive
committee and made its determination conclusive irrespective of any
expression of the party's will by its convention, and therefore the
committee's action barring negroes from the party primaries was state action
prohibited by the Fourteenth Amendment. Here the qualifications of citizens
to participate in party counsels and to vote at party primaries have been
declared by the representatives of the party in convention assembled, and
this action upon its face is not state action. The question whether under
the Constitution and laws of Texas such a declaration as to party membership
amounts to state action was expressly reserved in Nixon v. Condon, supra,
pages 84, 85, of 286 U.S., 52 S.Ct. 484. Petitioner insists that for various
reasons the resolution of the state convention limiting membership in the
Democratic Party in Texas to white voters does not relieve the exclusion of
negroes from participation in Democratic primary elections of its true
nature as the act of the state. [295 U.S. 45, 49] First. An argument pressed
upon us in Nixon v. Condon, supra, which we found it unnecessary to
consider, is again presented. It is that the primary election was held under
statutory compulsion; is wholly statutory in origin and incidents; those
charged with its management have been deprived by statute and judicial
decision of all power to establish qualifications for participation therein
inconsistent with those laid down by the laws of the state, save only that
the managers of such elections have been given the power to deny negroes the
vote. It is further urged that while the election is designated that of the
Democratic Party, the statutes not only require this method of selecting
party nominees, but define the powers and duties of the party's
representatives and of those who are to conduct the election so completely,
and make them so thoroughly officers of the state, that any action taken by
them in connection with the qualifications of members of the party is in
fact state action and not party action.
In support of this view petitioner refers to title 50 of the Revised Civil
Statutes of Texas of 1925,5 which by article 3101 requires that any party
whose members cast more than 100,000 ballots at the previous election shall
nominate candidates through primaries, and fixes the date at which they are
to be held; by article 2939 requires primary election officials to be
qualified voters; by article 2955 declares the same qualifications for
voting in such an election as in the general elections; by article 2956, as
amended (Vernon's Ann. Civ. St. art. 2956), permits absentee voting as in a
general election; by article 2978 requires that only an official ballot
shall be used, as in a general election; by articles 2980, 2981 specifies
the form of ballot and how it shall be marked, as other sections do for
general elections; by article 2984 fixes the number of ballots to be
provided, as another article does [295 U.S. 45, 50] for general elections;
by articles 2986, 2987, and 2990 permits the use of voting booths, guard
rails, and ballot boxes which by other statutes are provided for general
elections; by articles 2998 and 3104 requires the officials of primary
elections to take the same oath as officials at the general elections; by
article 3002 defines the powers of judges at primary elections; by articles
3003-3025 provides elaborately for the purity of the ballot box; by article
3028 commands that the sealed ballot boxes be delivered to the county clerk
after the election, as is provided by another article for the general
election; and by article 3041 confers jurisdiction of election contests upon
district courts, as is done by another article with respect to general
elections. A perusal of these provisions so it is said will convince that
the state has prescribed and regulated party primaries as fully as general
elections, and has made those who manage the primaries state officers
subject to state direction and control.
While it is true that Texas has by its laws elaborately provided for the
expression of party preference as to nominees, has required that preference
to be expressed in a certain form of voting, and has attempted in minute
detail to protect the suffrage of the members of the organization against
fraud, it is equally true that the primary is a party primary; the expenses
of it are not borne by the state, but by members of the party seeking
nomination (article 3108, as amended by Acts 1931, c. 105, 2 (Vernon's Ann.
Civ. St. art. 3108)) and article 3116, as amended by Acts 1927, c. 54, 1
(Vernon's Ann. Civ. St. art. 3116); the ballots are furnished not by the
state, but by the agencies of the party (Rev. St. arts. 3109, 3119); the
votes are counted and the returns made by instrumentalities created by the
party (articles 3123-3125, 3127, as amended (Vernon's Ann Civ. St. arts.
3123-3125, 3127)); and the state recognizes the state convention as the
organ of the party for the declaration of principles and the formulation of
policies (articles 3136, 3139, as amended (Vernon's Ann. Civ. St. arts.
3136, 3139)).
We are told that in Love v. Wilcox, 119 Tex. 256, 28 S.W.(2d) 515, 522, the
Supreme Court of Texas held the state was within its province in prohibiting
a party from [295 U.S. 45, 51] establishing past party affiliations or
membership in nonpolitical organizations as qualifications or tests for
participation in primary elections, and in consequence issued its writ of
mandamus against the members of the state executive committee of the
Democratic Party on the ground that they were public functionaries
fulfilling duties imposed on them by law. But in that case it was said, page
272 of 119 Tex., 28 S.W.( 2d) 515, 522:
'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.'
After referring to article 3107, as amended by Acts 1927, 1st Called Sess.
c. 67, 1 (Vernon's Ann. Civ. St. art. 3107), which limits the power of the
state executive committee of a party to determine who shall be qualified to
vote at primary elections, the court said:
'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.'
Although it did not pass upon the constitutionality of section 3107, as we
did in Nixon v. Condon, supra, the Court thus recognized the fact upon which
our decision turned, that the effort was to vest in the state executive
committee the power to bind the party by its decision as to who might be
admitted to membership.
In Bell v. Hill, 74 S.W.(2d) 113, the same court, in a mandamus proceeding
instituted after the adoption by the state convention of the resolution of
May 24, 1932, restricting eligibility for membership in the Democratic Party
to white persons, held the resolution valid and effective. After a full
consideration of the nature of political parties in the United States, the
court concluded that [295 U.S. 45, 52] such parties in the state of Texas
arise from the exercise of the free will and liberty of the citizens
composing them; that they are voluntary associations for political action,
and are not the creatures of the state; and further decided that sections 2
and 27 of article 1 of the state Constitution guaranteed to citizens the
liberty of forming political associations, and the only limitation upon this
right to be found in that instrument is the clause which requires the
maintenance of a republican form of government. The statutes regulating the
nomination of candidates by primaries were related by the court to the
police power, but were held not to extend to the denial of the right of
citizens to form a political party and to determine who might associate with
them as members thereof. The court declared that a proper view of the
election laws of Texas, and their history, required the conclusion that the
Democratic Party in that state is a voluntary political association and, by
its representatives assembled in convention, has the power to determine who
shall be eligible for membership and, as such, eligible to participate in
the party's primaries.
We cannot, as petitioner urges, give weight to earlier expressions of the
state courts said to be inconsistent with this declaration of the law. The
Supreme Court of the state has decided, in a case definitely involving the
point, that the Legislature of Texas has not essayed to interfere, and
indeed may not interfere, with the constitutional liberty of citizens to
organize a party and to determine the qualifications of its members. If in
the past the Legislature has attempted to infringe that right and such
infringement has not been gainsaid by the courts, the fact constitutes no
reason for our disregarding the considered decision of the state's highest
court. The legislative assembly of the state, so far as we are advised, has
never attempted to prescribe or to limit the membership of a [295 U.S. 45,
53] political party, and it is now settled that it has no power so to do.
The state, as its highest tribunal holds, though it has guaranteed the
liberty to organize political parties, may legislate for their governance
when formed, and for the method whereby they may nominate candidates, but
must do so with full recognition of the right of the party to exist, to
define its membership, and to adopt such policies as to it shall seem wise.
In the light of the principles so announced, we are unable to characterize
the managers of the primary election as state officers in such sense that
any action taken by them in obedience to the mandate of the state convention
respecting eligibility to participate in the organization's deliberations.
is state action.
Second. We are told that sections 2 and 27 of the Bill of Rights of the
Constitution of Texas as construed in Bell v. Hill, supra, violate the
Federal Constitution, for the reason that so construed they fail to forbid a
classification based upon race and color, whereas in Love v. Wilcox, supra,
they were not held to forbid classifications based upon party affiliations
and membership or nonmembership in organizations other than political
parties, which classifications were by article 3107 of Revised Civil
Statutes, 1925, as amended, prohibited. But, as above said, in Love v.
Wilcox the court did not construe or apply any constitutional provision and
expressly reserved the question as to the power of a party in convention
assembled to specify the qualications for membership therein.
Third. An alternative contention of petitioner is that the state Democratic
Convention which adopted the resolution here involved was a mere creature of
the state and could not lawfully do what the Federal Constitution prohibits
to its creator. The argument is based upon the fact that article 3167 of the
Revised Civil Statutes of Texas, 1925, requires a political party desiring
to elect [295 U.S. 45, 54] delegates to a national convention to hold a
state convention on the fourth Tuesday of May, 1928, and every four years
thereafter; and provides for the election of delegates to that convention at
primary conventions, the procedure of which is regulated by law. In Bell v.
Hill, supra, the Supreme Court of Texas held that article 3167 does not
prohibit declarations of policy by a state Democratic Convention called for
the purpose of electing delegates to a national convention. While it may be,
as petitioner contends, that we are not bound by the state court's decision
on the point, it is entitled to the highest respect, and petitioner points
to nothing which in any wise impugns its accuracy. If, as seems to be
conceded, the Democratic Party in Texas held conventions many years before
the adoption of article 3167, nothing is shown to indicate that the
regulation of the method of choosing delegates or fixing the times of their
meetings was intended to take away the plenary power of conventions in
respect of matters as to which they would normally announce the party's
will. Compare Nixon v. Condon, supra, page 84 of 286 U.S., 52 S.Ct. 484. We are not prepared to hold that in Texas the state convention of a party has
become a mere instrumentality or agency for expressing the voice or will of
the state.
Fourth. The complaint states that candidates for the offices of Senator and
Representative in Congress were to be nominated at the primary election of
July 9, 1934, and that in Texas nomination by the Democratic Party is
equivalent to election. These facts (the truth of which the demurrer
assumes) the petitioner insists, without more, make out a forbidden
discrimination. A similar situation may exist in other states where one or
another party includes a great majority of the qualified electors. The
argument is that as a negro may not be denied a [295 U.S. 45, 55] ballot at
a general election on account of his race or color, if exclusion from the
primary renders his vote at the general election insignificant and useless,
the result is to deny him the suffrage altogether. So to say is to confuse
the privilege of membership in a party with the right to vote for one who is
to hold a public office. With the former the state need have no concern,
with the latter it is bound to concern itself, for the general election is a
function of the state government and discrimination by the state as respects
participation by negroes on account of their race or color is prohibited by
the Federal Constitution.
Fifth. The complaint charges that the Democratic Party has never declared a
purpose to exclude negroes. The premise upon which this conclusion rests is
that the party is not a state body but a national organization, whose
representative is the national Democratic Convention. No such convention, so
it is said, has resolved to exclude negroes from membership. We have no
occasion to determine the correctness of the position, since even if true it
does not tend to prove that the petitioner was discriminated against or
denied any right to vote by the state of Texas. Indeed the contention
contradicts any such conclusion, for it assumes merely that a state
convention, the representative and agent of a state association, has usurped
the rightful authority of a national convention which represents a larger
and superior country-wide association.
We find no ground for holding that the respondent has in obedience to the
mandate of the law of Texas discriminated against the petitioner or denied
him any right guaranteed by the Fourteenth and Fifteenth Amendments.
Judgment affirmed.
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The U. S. Constitution
