Richmond planet. [volume] (Richmond, Va.) 1883-1938, 1929-07-06

n1airtiY is a citizen of the United
Stl-es and resides in the first pre-
rinrr ii Madison Ward in the city
~ Richmond. Virginia. That the first
two algye named defendants we're
the duly appointed judges and the
last named the duly appointed clerk
at q primary election held in the city
of Richmond on the Bird Of April,
1928. for the purposes Of nominating
candidates on the Democratic ticket
for mayor. councilman, and alder
man. That the plaintiff, who IS q
Negro. was on that day male citizen
of the United States, over twenty
one years Of age, in all respects Quai-
fled to vote in the ensuing genera!
election. and that he was and had
been tcr some time past bona tlde
member OF The Democratic party OF
the State o. Virginia.
To Recover Damages
TIE action is brought to recover
damages for the refusal by the de-
PENDANTS to permit the plaintiff to
vo.a IN the above mentioned primary
s2.e'y because ne was Negro. De-
PENDANTS have filed a demurrer to the
declaration. This raises the question
whether the action of the defendants
in excluding the plaintiff from voting
was an infringement of the rights
guaranteed to him by the Fourteenth
and Fifteenth Amendments OF the
Federal Constitution. The action IS
Trough: under Section As Of Title 8
Of U. S. c. A.
Virginia Constitution
Section 3G of the Constitution OF
VIRGINIA provides as follows:
"Tae General Assembly shall
enact such laws as are necessary
and proper for the purpose Of
securing the regularity and pur-
isy Of general, local and primary
elections. and preventing and
p-r'saing any corrupt practices
in connection herewith; and
shall have power, in addition 70
other penalties and punishments
now or hereafter prescribed by
law for such offences, to provide
that persons convicted Of them
shall thereafter be disqualified
from voting or holding office"
Pursuant to this authority the Gen
eral Assembly of Virginia has provid-
ed (Code 1924, Chapter Is, Section
22D a comprehensive plan in reia-
ton to primary elections, providing
therein for participation by any po-
litical party which shall at the pre-
ceding presidential election have
oolIad az least ona-fourth OF the tOta,
vote east in such election.
Applies to All Nominations
The provisions of this chapter APP
ply to the nominations Of al candl-
dates for Office 10 be nominated by a
direct primary. The right is granted
to the party authorities of any pollti-
cal party qualified to participate. IN
such a primary, 20 adopt some other
method for the nomination Of candl-
dates for Office, but when partlclpa--
ton in the direct primary is decided
on by such party authorities, the time
when the same is to be held, the con-
duct of same, the appointments OF
Judges and clerks, the method OF
holding the election and returning the
ballots, tha appointment of commits
sioners ~ canvass the vote, the duty
Of the State Board OF Canvassers IN
relation 70 declaring the result, the
provision for securing order at the
polls. the prevention of frauds IN the
election, are all provided for in like
manner as in the general election, in
Guiding provision for the payment OF
the expenses of holding and conduct
ing the primary, payment OF judges
and clerks of election, furnishing nee
essary stationery and supplies, rent
of polling places, furnishing and dis
tributing ballot boxes and poll books,
etc. in the same way and to the same
extent as in . general election.
Who May Vote
Section 228 provides who may vote
and includes "all persons qualified to
vote at the election for which the
primary is held, and not disqualified
by reasons Of other requirements an
the lar Of the party to aVhich he be-
longS" Qtalics added.) 1t further
provides that no person shall vote
except for the candidates Of the par
~ to which he belongs and which he
supported in the preceding election.
The declaration alleges and the de-
murrer admits that the plaintiff was
excluded from voting in the direct
primary because of resolution
adopted by the State Democratic
Convention in 1924, pursuant to the
authority of the Statute, declaring
that only white persons should par
ticipate in Democratic primary.
Admission of Counsel
Counsel for defendants admit, as
of course they must, that statute OF
a State which attempted to exclude
Negroes from voting in Democratic
primary would be in conflict with the
Fourteenth Amendment Of the Fed
eral Constitution nixon v. Herndon,
273 U. S. 1867, but insist that the
discrimination against the plaintiff
complained of here was the act of an
individual or a group of individuals
acting as such, and therefore not
within the purview of the Federal
Constitution.
History and Circumstances
The history and circumstances OF
the adoption of the Fourteenth and
Fifteenth Amendments to the Con-
stitution have no place in this dis
cussion. For the present it is suf-
icient TO point out that the Four
tenth Amendment determines that
persons born in or naturalized ac-
cording to law are citizens of the
United States and of the State where
they reside. That no State shall
abridge the privileges and immuni-
ties of any citizen or deny him equal