Richmond planet. [volume] (Richmond, Va.) 1883-1938, 1929-06-08
JUDGE GrOner.

ana 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 a general election.
Who May Vote
Section 22S provides who may vote
and includes "all persons qualified to
vote ct the election for which the
primary is held, and not disqualified
by reasons of other requirements IN
the ialv of the party to aVhich he be-
longs" (Italics added) 1t further
provides that no person shall vote
except for the candidates of the par
ty 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
t!c!pate in Democratic primary.
OF SOunSel
Counsel for defendants admit, as
Of course they must, that statute of
State which attempted to exclude
Negroes from voting in a Democratic
primary would be in conflict with the
Fourteenth Amendment of the Fed
erai 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-
stlVution have no place in this dis
cussion. For the present it is suf-
fcient to point out that the Four
teenth 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
protection of the laws. To the States
1t says that no law shall be made or
enforced to diminish any one of the
privileges and immunities of the peo-
pie of the United States, and it d.
reefs Congress to adopt such laws as
may be necessary to enforce the
amendment. AS construed by the
Supreme Court (Civil Rights Cases,
1O9 =. W. 3: James V. Bowman. 100
U. ". 127), the first section of the
Amendment is prohibitory measure
and its prohibitions operate against
States and not against private per-
sons.
The Point at Issue
The point, therefore, on which this
case turns is whether the act of the
election Officers-the observation-disclosures
an official act or a personal act, that !
IS to say, was in the performance of
: duty enjoined on them by statute I,
or was merely individual and per-
sonal and authorized by right in
nerent in the political organization to
which they belong. Defendants say
that the latter is the correct view.
That utilization with a political party
IS not a matter of right but of party
regulation and that the legislature
rs such has no authority to fix stand
ards or qualifications of membership.
Irigsby V. Harris, q F (2d) 942.
They say in effect that there is no
egal ban on the formation of po- /
iticai party based wholly on color or
N religious belief or on sex or any
'ther standard which the party
hoOseS to adopt, and that because of
his, the General Assembly of Vir-
,inia in recognizing the right made
10 delegation of power but only rec
'gnlzed the existence of the power
where it has always resided.
The Way Out
There can be no doubt, at least so
a. as the State of Virginia is con-
.erned, that a political party may
'efuse to avail itself of the prlvl-
eyes of the direct primary and may
dominate candidates to be voted for
Il 9 general or special election in any
# the ways in which such nomlna-
ions were made before the introduc-
ion of the primary. Candidates for
public office may be made such by
petition, by action of caucus, or by
convention. Indeed they may be
nominated in primary conducted by
he party under its own rules and at
Is own expense. But if because OF
he greater safeguards which the law
throws around legalized primary,
Or because in such case the expense
S borne by the State, a party. elects
20 adopt this method Of naming us
candidates for PUBLIC office, it may Z.
10 50 and still preserve the absolute
right to determine who shall partlcl-
nate. is a much more delicate ques-
ton.
A Modern Proposition
The urinary as a means of naming
candidates for a place on the ohclal
ballot is comparatively modern us
spread in the last quarter OF cen
tury has been steady and it is To-Day
in practically every State the eXclu- /,
sive method adopted by the two great
political parties for the nomination
Of candidates for Office, State and
Federal. It's growth and adoption
as vital part of the election system
arose because of the Importance to
the public to "give vitality to the
guaranty of free ana
ballot"
Judge Keith's Language
This purpose may not be better
stated than repeating the language
of Judge Keith in Commonwealth vi
Wilcox, III Va, page $50, as fol-
lows:
eve know, as matter of common
,--laI.a +lnt tho ,n11rnnSa of hold