Lecture 10A:

The White Primary and

Other Suppression Measures II
PSC 293 (Race and the Law)
Lecture 10A: The White Primary and
Other Suppression Measures II
This Lecture
 Lecture 10A: The White Primary
 Issacharoff: pages 259-282
 Texas Primary Cases
 Nixon v. Herndon (1927)
 Smith v. Allright (1944)
 Terry v. Adams (1953)
What about Parties?

 Political parties
 Are they private organizations or more of a public institution?
 If they are private, can they exclude people?
 From their primaries or as candidates
 Do they even have to use a primary?
 Washington not a fan of parties or factions
 We have went through several party systems in the U.S.
 In races that use primaries, it is usually the state and administers and pays for the
primary election?
Ballot and State Gatekeeping

 Changes to Voting Methods

 Adoption of the Australian (secret) ballot
 A move to cut down on intimidation, election fraud, and vote buying
 Kousser sees it differently hurt the ability of literates to vote
 Now voters can get some type of assistance
 Certain jurisdictions have non-English ballots
 Closed vs. open primaries
 And in between
 New York very closed
The White Primary

 In the period of time after Reconstruction,

the Republican Party in most of the South
ceases to win any elections
 Therefore, all the game is within the
Democratic Party
 “Tantamount to Election”
 Winning the Democratic Primary was in most
places in the South winning the election
 If you could exclude persons from the
Democratic Primary, you could effectively
exclude them from the election
 But there were divisions among Democrats,
and could those more liberal factions appeal
to African-Americans to gain an upper hand?
Nixon v. Herndon (1927)

 Background
 A state statute in Texas prohibited African-Americans from voting in the
Democratic Party Primary
 An African-American tried to vote in the Democratic Primary but was denied
 The Question before the Court was the constitutionality of this statute
 Holmes, J. for a unanimous Court
 They find a violation of the 14th Amendment
 This violated the concept of Equal Protection
Aftermath of Nixon v. Herndon

 Texas did not stop in trying to keep an all-white primary

 One of the problems is that in that case the decision was by the Legislature
 Texas then passed a law saying that party executive committees would have the power to
determine who was qualified to vote in its primary
 This was struck down in Nixon v. Condon (1932)
 Again, the problem was the involvement of the State
 They said that party executive committees were an arm of the state, not party members
 The next attempt is successful in Grovey v. Townsend (1935)
 African-Americans were barred as a result of the Texas Democratic Party Convention
 The Court upheld this as not state action
 But the door then seems to open in United States v. Classic (1941)
 Court says the federally protected right to vote includes party primaries
Smith v. Allright (1944)

 Background
 This is the new challenge to exclusions of non-whites from the primary
 Texas Democrats argued they are a voluntary organization and can include or
exclude whomever they want for whatever reason they want
 Reed, J. for an 8-1 Court
 Party primaries are conducted by the state under statutory authority
 This means the same rules applied to general elections are applied to primaries
 This is thus state action, and violates the 15th Amendment
 Grovey v. Townsend is overruled
 Roberts, J. dissenting
Terry v. Adams (1953)

 Background
 Fort Bend County, there was a group known as the Jaybird Democratic Association
 They were a voluntary club not an arm of the state at all
 This was essentially a pre-primary who ever won their endorsement almost
always won the primary mostly unopposed
 They excluded African-Americans
 The question the Court faced was whether this 15 th Amendment
Terry v. Adams- II

 Black, J. announces the judgment of the Court, joined by Douglas and Burton
 This endorsement by the committee has acted as the de facto election since 1889
 It has become and integral and effective part of the election process
 All those that get elected participate in this endorsement process
 Therefore, excluding African-Americans from this organization equals denying them a role
in the political process thus violates the 15th Amendment
 Frankfurter, J. concurring
 The state must have a hand in the discriminatory action to violate the 15 th
Amendment
 He finds that this falls within that scope
Terry v. Adams- III

 Clark, J concurring, joined by Vinson, C.J., Reed and Jackson, JJ.

 They say that the club acted as “part and parcel” of the Democratic Party
 Even though African-Americans can vote in the primary and general election, the
real decision has already been made
 This acts to make those votes meaningless

 Minton, J. dissenting
 He does not feel that there is any state action involved
 He wonders how far to other organizations that endorse candidates will be forced
to let others in
 This is more about dislike of what the Jaybird Association was doing
Aftermath of Terry v. Adams

 After this decision, African-Americans could vote in the “Jaybird Primary”

 They were able to swing several races
 The Jaybirds go away by 1959
 Efforts by other states such as South Carolina to form clubs to get around this
decision were struck down
 Morse v. Republican Party of Virginia (1996)
 Rules that set up who could vote in a party nominating convention fell within the
definition of voting under the Voting Rights Act
Next Lecture

 Lecture 10B: 2020 Election

 Supplement pages 5-18
 Republican National Committee v. Democratic National Committee (2020)
 I will be doing this lecture live via Zoom
 This will the chance to ask any questions about the state of the 2020 Election and any
other class related questions
Next Week

 Vote Dilution I
 Issacharoff: pages 609-652
 Whitcomb v. Chavis (1971)
 White v. Regester (1973)
 City of Mobile v. Bolden (1980)
 Gaffney v. Cummings (1973)
 Karcher v. Daggett (1983)
 Kousser: pages 317-366
 Intent and Effect in Law and History