Evening star., 1943-11-21
High Court Gets
Racial Issue J
BIZ J. A. For.


While the Senate wrangles over the
antipoll tax bill with It's racial implica-
tions, the controversial issue OF Negro
suffrage In the South is stirring in an
other quarter also, the right of Texas
Democrats to limit participation In their
primaries to white voters once more
facing Supreme Court test. 1t is the
fourth time in 16 years that this ques-
tion-which may have far-reaching
efect-has come before the highest tri-
bunal from Texas, and while State laws
designed to insure all-white primaries
twice were invalidated as violative of
the 14th amendment to the Consti-
tition. Democratic State convention
adopted an exclusion rule which finally
was upheld in 1885, Justice Roberts read
ing the opinion In which the court held
unanimously that the prescription
against Negroes was legal, because it
was the act Of the party. which conducts
the primaries, rather than the State.
One Lonnie E. Smith of Harris County
(Houston), who was barred by election
officials from the primary of 1910, when
a Senator, member of Congress and
State Officers were chosen, instituted
the current litigation by asking for a
declaration as to his right to vote. He
relied principally on a Supreme Court
decision OF two years ago in the Classic
case, criminal action from Louisiana,
when the court said that the right OF a
qualified voter to vote in a primary
election for Representative in Congress
is secured by Article of the Constitu-
ton, where State law has made the pri-
mary an integral part of the procedure
| OF choosing candidates, or where, in
fact, the primary effectively controls
| the choice.
That the Democratic primary in Texas
effectively controls the choice of the
electorate is not open to debate, as there
have been but two instances since 1859
when the Democratic candidates for
Senate, Congress and Governor we're
| defeated. Nevertheless, both Federal
District Court in Houston and the Fifth
Circuit Court of Appeals said the rule
| OF the Classic case did not apply. With
out amplifying, the Circuit Court said
| that "it (Classic) differs in many points
| from this case" and that the principle
laid down by the Supreme Court in
1e35-Grovey VS.. Townsend-in uphold
ing the racial ban still is good
X *H
Texas, one Of the States having a poll
| tax, incidentally, first barred Negroes
by statute from primaries in 1923, as
| the aftermath OF an intraparty fight
between two candidates for district at
torney in county where some members
| OF the race were admitted to the pri-
mary. Customarily, "unwritten law"
| had excluded them.
The constitutionality of the statute
was challenged in Nixon VS.. Herndon,
| and a unanimous court, with Justice
| Holmes reading the opinion, said that
the restraint was repugnant to the
equal rights" clause of the l4th amend
ment. In his Mind and Faith of Jus
| tice Holmes" Max Lerner recalls that
the case had been argued on racial dis
| elimination grounds, under the 18th
| amendment, which would have given
the court the opportunity to say if a
primary is an election, but that point
was bypassed by Justice Holmes.
"One may guess that he steered away
| from the vexed question of the 18th
amendment for reasons of strategy in
getting united court" Mr.. Lerner
writes. Justice Holmes had said that:
Color cannot be made the basis of
statutory classification" so Texas
passed new law authorizing the party
Executive Committee to prescribe the
requirements for membership. and, con-
sequently, the voting qualifications,
When the party adopted a resolution
admitting 'all white Democrats :.
and none other" Nixon, plaintiff in the
first case, sued again, and while the
Supreme Court split 5-to-4 the statute
was voided.
When the subsequent convention
adopted ban was challenged, the argu-
ment was advanced that exclusion from
the primary renders a vote in a general
election, which is protected by the Con-
stitution, insignificant and useless"
To advance this theory however, JUS
tice Roberts said, lis to confuse the
principle 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 forced to concern itself, for
the general election is 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 Con-
stitution"
There the matter rests, until the Su-
preme Court passes on the Smith case
which was heard last week.
Legal authorities who have been
watching the progress of the litigation
believe that decision for the plaintiff
would make it legally impossible for
the Democratic party in the South to
limit participation in primaries to white
voters. If the lower court were upheld,
Negroes as class would be no differ
emily situated than at present.
The case took an unusual turn in the
Supreme Court. No one appeared for
the two election judges who were
named defendant in the Smith suit, nor
was any brief filed in their behalf.
case OF sickness, and travel allowance
of s8 for every 20 miles Travelled in the
usual road" going and coming from the