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Following Reconstruction (1865-1877), white southerners employed various tactics to minimize the economic, political, and social opportunities of former slaves and their descendents. The white primary, which limited blacks’ political influence, was one. A primary is an election within a political party to select the party’s nominees for public offices. Late in the 1800s states began to replace party conventions with primaries as nominating devices. The primary became a “white” primary as participation in it was denied to voters of color. Along with poll taxes and literacy tests, white primaries were “Jim Crow” laws, practices used in the South in the late 1800s and early 1900s to marginalize African Americans politically.
The white primary had significant discriminatory potential because the Democratic Party was virtually the only political institution involved in selecting public officials in the South. The Republican Party had virtually disappeared there; much of its numeric strength was contributed by black voters, whose numbers dwindled in the face of discriminatory voting laws and practices. By denying black voters the option of participating in Democratic Party nominations, they were left with few avenues for effective electoral involvement.
The creation of white primaries could be accomplished in several ways. First, the state could statutorily exclude African American voters from primaries. Alternatively, the Democratic Party itself could adopt rules that either denied the opportunity of party membership to black voters or prohibited black voters from casting ballots in primaries. White primaries could also be effectively created by using other discriminatory practices to disqualify black citizens from involvement in elections.
The black electorate was substantially reduced during this period by requiring prospective voters to pass literacy tests, pay poll taxes, and the like. Because most southern blacks had a rudimentary education at best and because of the pervasive impoverished circumstances in which they lived, these policies were potent barriers to voting by black citizens. It was not particularly necessary to reinforce these devices with statutory white primaries. Moreover, some recognized that the Fourteenth and Fifteenth Amendments to the U.S. Constitution might prevent enforcement of laws that overtly denied to African Americans the right to vote.
Nonetheless, additional efforts to exclude black voters from nomination and election processes were desired by Southern whites. The Democratic Party at the county and state levels began to impose rules that prohibited participation of black voters in party affairs. Texas, however, took this further. There, as in some other southern locations, Democratic factions occasionally relied on black votes to gain and retain official power. A San Antonio faction sought to weaken one of its rivals that used that practice by convincing the state legislature to adopt a statute prohibiting black voter participation in primaries. The Texas legislature passed just such a law in 1923. Two years earlier the U.S. Supreme Court had decided Newberry v. United States (1921), which sprang from a Michigan election for a U.S. Senate seat. In Newberry the Court held that Congress could not regulate campaign spending in congressional primaries because primaries were not elections under Article I, Section 4 of the U.S. Constitution. Texas proponents of a statutory white primary thus reasoned that prohibitions of racial discrimination in the Fourteenth and Fifteenth Amendments would not apply to their primaries.
The equal protection clause of the Fourteenth Amendment requires that states offer “equal protection” to all persons in their jurisdictions; it is a prohibition against a state acting in discriminatory fashion. The Fifteenth Amendment simply provides that citizens may not be denied the right to vote on the basis of race, color, or previous status as slaves; it overtly guarantees African Americans the right to vote in elections. The Court’s ruling in Newberry evaded these guarantees by holding that primaries were not a part of the electoral process.
Once the Texas statute was in place, a black El Paso doctor, L.A. Nixon, attempted to vote in a Democratic primary and was turned away. He sued Herndon, the election judge who prevented his voting, and claimed that his Fourteenth and Fifteenth Amendment rights had been violated. The U.S. Supreme Court decided Nixon v. Herndon in 1927, evaluating its issues solely within the context of the Fourteenth Amendment; the Texas law was held to clearly violate the equal protection clause. No consideration was given to the relevance of the Fifteenth Amendment to the case, nor was the question of whether federal laws applied to party primaries taken up.
Texas responded to the decision by repealing the offending statute and passing a new law permitting a party’s state executive committee to determine the qualifications for political party membership. The Texas Democratic Party then passed a resolution affirming the right of qualified white Democratic voters to participate in the party’s primaries, but no one else. In a subsequent primary Nixon again attempted to vote and was again turned away. He sued once more, and the Supreme Court took up his claim in the case of Nixon v. Condon (1932).
The logic of Texas’s new law was that the Fourteenth Amendment specifically prohibited state action that is discriminatory, but the rule barring voting by black citizens was one adopted by the Texas Democratic Party, a private association. Since the rule was made and enforced by a private entity, proponents contended, the Fourteenth Amendment did not apply. The Court, however, disagreed, pointing out that the power to exclude black voters had been given to the party by the state and that the state was using the party to accomplish racial discrimination in voting, thereby violating the equal protection clause.
The Texas legislature then enacted a statute compelling political parties to employ the primary to nominate candidates and giving to parties complete responsibility for the actual conduct of the primary without state direction or supervision. When black voters were prevented from voting under this statute, yet another lawsuit resulted. This time the outcome was different. The Supreme Court ruled in Grovey v. Townsend (1935) that since operation of the primary was totally in the hands of a private entity and since political parties could be viewed as “voluntary associations for political action,” a party might exclude African American voters without violating the equal protection clause. In these situations parties were not considered agents or instrumentalities of the state and could determine their own procedures as non-public institutions.
The Court’s ruling in Townsend might have ended the debate as to the legal legitimacy of white primaries for some time; however, an unrelated Louisiana lawsuit revived the issue. Primary officials in New Orleans were charged with election fraud in the course of conducting an election for a seat in the U.S. House of Representatives, a violation of federal law. Because there was no competition for the seat in the general election, the primary outcome was tantamount to election. The embattled election officials defended themselves by invoking Newberry and asserting that federal law applied only to general elections. In United States v. Classic (1941), however, the Supreme Court held that the Constitution created a right to voter participation even in primaries when it gave to “the people in the several states” the authority to select their delegates to the House of Representatives, provided that the primaries are an integral part of electoral procedure. Classic thus reversed the Court’s position in Newberry, but it made no reference to Grovey.
Black voters, though, saw in Classic a stepping-stone to link white primaries to constitutional prohibitions against voter discrimination based upon race. A black Houston dentist, Lonnie E. Smith, had been refused a ballot in the 1940 primary by S. E. Allwright, an election judge. Smith sued and invoked the Court’s finding in Classic, and the Court sided with him and overruled Grovey in so doing. The Court noted the state’s authority to regulate political parties and primaries and concluded that primaries were thus a mechanism for electing public officeholders. Smith v. Allwright (1944) thereby struck down the white primary as an unconstitutional infringement of black voters’ rights.
The impact of white primaries as a delimiter of black voting is not clear, for their specific effects must be disentangled from those of other discriminatory practices and laws. Although it is apparent that African American participation in elections declined during the period white primaries were operated, some analysts assert that literacy tests and poll taxes were principally responsible for the decline in black voting. Similarly, the impact of white primaries’ demise is not obvious; some argue that eliminating the white primary did little to stimulate black voter participation. However, the percentage increase in black voter registration from 1940 to 1947, during which time the white primary was outlawed, is matched only by the increase in black voter registration from 1960 to 1969, when the Voting Rights Act of 1965 was first implemented.
Dismantling the complete array of discriminatory devices was necessary to stimulate widespread African American involvement in politics in the South. If nothing else, litigating the status of primaries in the framework of American elections was essential to making their public role apparent not only to the legal community and to political elites but also to private citizens. Given the almost universal adoption of primaries as nomination devices across the nation, these lessons were as important to nonsoutherners as they were to voters in the South.
- Bell, Derrick. 2004. Race, Racism, and American Law, 5th ed. New York: Aspen Publishers.
- Key, V. O., Jr.  1984. Southern Politics in State and Nation, A New Edition. Knoxville: University of Tennessee Press.
- Klarman, Michael J. 2004. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. New York: Oxford University Press.
- Kousser, J. Morgan. 1974. The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880–1910. New Haven, CT: Yale University Press.
- Lawson, Steven F. 1976. Black Ballots: Voting Rights in the South, 1944–1969. New York: Columbia University Press.
- Stanley, Harold W. 1987. Voter Mobilization and the Politics of Race: The South and Universal Suffrage, 1952–1984. New York: Praeger.
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