The Green Papers Commentary

The Relationship between State Law and Party Rules
and the "Punishing" of the former where violative of the latter

Sunday, March 16, 2008

by Richard E. Berg-Andersson Staff

The scuttlebutt is all about "do-overs" on the Democratic side of the 2008 presidential nomination process-- that is: allowing Florida and Michigan- the two States whose respective Democratic National Convention delegations technically do not exist because the Democratic National Committee has unceremoniously banished them from attending the Party's Convention scheduled for late this coming August in Denver, Colorado- to each hold some kind of "rump" Democratic Presidential Primary on Tuesday 3 June (which, since this is also the date on which Montana and South Dakota will also be holding Democratic Presidential Primaries, would end up creating a kind of "Super Tuesday III" [ironically, on the day that- once upon a time, long long ago- was that of the only (and original) "Super Tuesday"] with which this presidential election cycle's Primary/Caucus process would come to a close).

At least, that is the talk as I type this.

Put aside whether any of this will actually happen: is it right? is it fair?? is it even constitutional?!

First of all, let's start by dealing with some misconceptions about the right to vote in a Federal (as opposed to a State) election, from which I will then (eventually [;-)]) go on to deal with a State's legal (and also constitutional) relationship to a political Party:

I have seen quite a number of comments, amongst bloggers who are opposed to allowing the already-held Florida and Michigan Democratic Presidential Primaries to count (whether or not these same bloggers support, or do not support, allowing Florida and Michigan Democrats to hold "do over" Primaries and/or Caucuses before the Primary/Caucus "season" ends), to the effect that "we Americans have no right to vote in Federal elections"; some of these bloggers have even gone on to say that "our privilege of voting in Federal elections is at the whim of Congress".

It's high time we clear up all this nonsense!

Americans do have the right to vote in at least some Federal elections: in fact, it is the very first substantive individual right found within the text of the United States Constitution! (This is why, for instance, Marchette Chute's 1969 history of the Right to Vote in America was titled The First Liberty-- because the Right to Vote is the very first Federally-protected Liberty).

Article I, Section 2, clause 1 of the U.S. Constitution reads as follows:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

"Electors" in the above clause does not at all refer to so-called 'Presidential Electors' (those who make up the quadrennial 'Electoral Colleges' in each State [and, since 1964, the District of Columbia]) but, rather, means what we today would simply describe as "registered voters". Plug in the words "registered voters" in place of "Electors" in the clause quoted above and it should be obvious that this clause constitutionalizes the right of a State's registered voters (so long as they are permitted, by a State's Constitution and laws [of which more later in this piece], to vote for the largest chamber of a State's legislature [in the early days of the American Republic, there were- in some cases- different qualifications (generally having to do with higher required value of property owned) for voting for the upper, as opposed to the lower, house of a bicameral State legislature; such distinctions are no longer utilized in any State nowadays]) to vote in elections for the lower house of the bicameral Congress of the United States created by the U.S. Constitution.

What about the upper house of Congress- the United States Senate? Although originally chosen by the State legislatures, U.S. Senators became popularly elected with the adoption of the 17th Amendment to the U.S. Constitution in 1913. Clause 1 of this Amendment reads as follows:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

Thus, the exact same federalized Right to Vote found in Art. I, Sec.2, clause 1 as regards the U.S. House of Representatives was specifically applied to the U.S. Senate when that upper chamber of Congress became, likewise, a popularly elected body.

But- alas!- this is as far as it goes (at least insofar as the Federal Constitution is concerned) for Article II, Section 1, clause 2 of the U.S. Constitution dealing with the election of President and Vice-President of the United States contains the following provision:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress...

Here, "Electors" does refer to the 'Presidential Electors' who thereafter meet in their respective 'Electoral Colleges' in each State and, thus, there is no federalized Right to Vote for said Presidential Electors (therefore, no inherent popular influence- however indirect- upon the choice of the two highest Federal officers [President and Vice-President]) akin to the already-demonstrated federalized Right to Vote for members of both houses of the Federal Congress (we'll come back to all this shortly-- just please bear with me here!)

Indeed, Congress itself does not have any authority whatsoever to regulate how candidacies for President and Vice-President are even put forth in the first place (that is, Congress has no power to oversee- by statute- the manner and method in which candidates for the two highest Federal offices are nominated!)

In fact, the only Federal elections for which Congress has been specifically granted oversight by the U.S. Constitution are the following:

a. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators (Article I, Section 4, clause 1)

[that last phrase- "except as to the Places of choosing Senators"- was put into the clause in order to prevent Congress from being able to determine where State legislatures might meet (it was felt, by the Constitution's Framers convened in Philadelphia in the Summer of 1787, that where a State legislature happened to gather, for any purpose [including that of electing members of the upper house of the Federal Congress] should always be the prerogative of a State's own Constitution, its own Law or, where these might be lacking in their directing the location of the State government, the legislature itself [plus the Framers so clearly wanted to avoid giving any unnecessary ammunition to those who would almost certainly oppose the document's ratification: allowing their new Congress to so interfere in the workings of a State's legislature for any reason would have been the proverbial "red flag" waved in front of the Antifederalist "bull"!])

Interestingly, the 17th Amendment that made the U.S. Senate a popularly elected body does not contain any provision at all changing this phrase: thus, it can be argued that- while Congress has the power to regulate the "Places" for electing members of the U.S. House of Representatives, it still cannot do so as regards the "Places" where U.S. Senators are elected. As a practical matter, then (since States tend to use the very same election precincts in elections for both houses of Congress], only the "Times" and "Manner" of Congressional Elections can so easily be regulated by Federal Law!)]

b. The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. (Article II, Section 1, clause 4: "Elector" here referring to 'Presidential Electors' privileged to vote in their respective 'Electoral Colleges')

So, Congress can only do the following (the diceyness of its ability to regulate Places of Congressional elections having already been touched upon):

1. Regulate the Time of holding Elections for U.S. Senators and Representatives in Congress;
2. Regulate the Manner of holding Elections for U.S. Senators and Representatives in Congress;
3. Determine the Time of choosing Presidential Electors (in a modern sense, the Date of a "Presidential Election" if, by this term, we mean the day the voters go to the polls [since all States now allow their voters to "appoint" the Electors]);
and 4. Determine the Day on which the Presidential Electors meet and vote in their respective (separate, each in its own State) 'Electoral Colleges'.

In fact, Congress has already utilized all four (as I have enumerated them above) of its Federal election-related constitutional powers:

U.S. Code: Title 2, Section 7 (going back to a law first passed in 1875) mandates that "[t]he Tuesday next after the first Monday in November, in every even numbered year" be the day set for the election of Members of Congress (at the time the law was first passed, Representatives in Congress were still the only Members of Congress elected by the People);

U.S. Code: Title 2, Section 1 (going back to enabling laws first passed in 1914 in order to put into effect the recently adopted 17th Amendment) mandates that U.S. Senators are to be elected "[a]t the regular election held in any State next preceding the expiration of the term for which any Senator was elected to represent such State in Congress, at which election a Representative to Congress is regularly by law to be chosen" (thus, the very same "Tuesday next after the first Monday in November in... even numbered year[s]" used for U.S. House elections);

U.S. Code: Title 3, Section 1 (going all the way back to a law first effective with the Election of 1848) requires that "[t]he electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President" (thus, we Americans go to the polls to vote in a 'Presidential Election' every four years on this "Tuesday next after the first Monday in November" which, it just so happens, is also the date specifically prescribed, by law, for electing Members of Congress);

U.S. Code; Title 3, Section 7 (going back to enabling laws implementing the provisions of the 20th Amendment to the U.S. Constitution, which moved Presidential Inauguration Day from 4 March to 20 January, beginning in 1937) requires that "[t]he electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct".

In addition, Congress has acted often enough when it comes to its regulating the "Manner" in which Congressional Elections are held, as can easily be seen in such Federal statutes as (to take one rather obvious example) the various and sundry "Voting Rights Acts" (of 1965, 1970, 1975, 1982, etc.).

Congress might well be able to go even further in its so regulating the "Times" and "Manner" of Congressional Elections. In the case before the U.S. Supreme Court known as Smith v. Allwright [321 U.S. 649 (1944)], the Opinion of the Court noted that, while [t]he privilege of membership in a Party may be, as this Court said in Grovey v. Townsend [294 U.S. 699 (1935)], no concern of the State,... when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the State makes the action of the Party the action of the State. In an earlier case, United States v. Classic [313 U.S. 299 (1941)], the Court specifically had said that the authority of Congress... includes the authority to regulate primary elections when, as in this case, they are a step in the exercise by the people of their choice of representatives in Congress

(and I will come back to all this verbiage-- eventually!-- again, please bear with me, gentle reader).

Put another way: in both the Classic case and the Allwright case, the Nation's Highest Court determined that, at the State level, a Primary- even for Federal office from a State (U.S. Senator or Representative in Congress)- is just as much part of the electoral process as a whole as the General Election itself! Thus, conceivably, Congress could also regulate the "Times" of Congressional Primaries (though, at least to date, Congress has never gone so far as to tell States when they can hold Primaries in which Parties nominate candidates for the United States Senate or U.S. House of Representatives!).

All in all, if nothing else be gleaned from all my verbiage on this subject so far, it should be most clear that claiming that a Federal Right to Vote is, in and of itself, non-existent and/or that it depends on the mere "whim of Congress" is altogether wrong. There is a Right to Vote for members of both houses of Congress enshrined in the Federal Constitution and Congress does have constitutional means and methods by which it can, by Law, protect said Right to Vote.

Having said this, however, the observant reader has probably already noticed an important caveat to this federalized Right to Vote and this caveat is part and parcel of the phrase (used in both Art. I, Sec.2. clause 1 of the document and the 17th Amendment) "[t]he electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature". In short, while there is a federalized Right to Vote enshrined in the U.S. Constitution, it is- nonetheless- still dependent upon definition of said Right to Vote by the State in which an individual voter happens to be registered to so vote!

Every State's own Constitution includes an Article titled "Suffrage and Eligibility", "Franchise and Elections", "Right of Suffrage", "Qualifications of Electors" or some combination of such terminology in which the Right to Vote in State and local elections is clearly defined. Thus, any citizen of any State can, rather easily, find out exactly what are those "qualifications requisite for electors of the most numerous branch of the State legislatures" in his or her State, qualifications that also allow said citizen to vote in Congressional Elections per the Federal Constitution.

There are obvious restrictions on just which qualifications a State may constitutionally require in order for its citizens to vote, not just in Congressional Elections, but also in State and local elections. The 15th Amendment to the U.S. Constitution does not allow the States to deny the Right to Vote on account of race, color, or previous condition of servitude; similarly, the 19th Amendment forbids the States from denying the Right to Vote on account of sex-- thus, States cannot constitutionally prevent African-Americans (or, for that matter, the darker-skinned citizen who might be descended from persons originating in, say, the Indian subcontinent or the Middle East) or women from enjoying the same Right to Vote (in either State/local or Federal elections) as white men. In addition, the 26th Amendment forbids denying that same Right to Vote on account of age so long as the person voting is eighteen years of age or older (interestingly, the 24th Amendment forbidding States from denying the Right to Vote by reason of failure to pay any poll tax or other tax applies only to voting in Federal elections; subsequent U.S. Supreme Court decisions would ban poll taxes and property tax-paying requirements for all elections as "unconstitutional" on grounds having to do with consitutional provisions other than the 24th Amendment).

Nevertheless, an American's Right to Vote in a Federal election flows, for the most part, from his or her Right to Vote in State and local elections as defined by State Law per the language of both Art. I, Sec. 2, clause 1 and the 17th Amendment (along with, as regards Presidential Elections, the language in Art. II, Sec.1, clause 2 to the effect that Presidential Electors be "appointed" in each State in such Manner as the Legislature thereof may direct [that is, as prescribed by State law; since the law in all States "appoints" Presidential Electors according to the wishes of a plurality of the voters participating in the November General Election in presidential election years, an American's Right to Vote in a Presidential Election also flows from State law (voters in the District of Columbia, per the 23rd Amendment to the Federal Constitution, "appoint" their Presidential Electors in such manner as the Congress may direct and Congress has directed that the plurality of D.C. voters also determines just which National Ticket gets the District's Electoral Votes]).

This is very, very important to note, as well as remember: that the average American voter who reads this piece is, indeed, only that potential "voter" because of his or her relationship with his or her sovereign State.

(Not to muddy the waters too much here, but it should fairly be noted that American Dependencies [that is, non-States] are a separate case, at least constitutionally: the Territories and associated Commonwealths are specifically prohibited from voting for President and Vice-President by the obvious meaning of the constitutional language setting up the so-called 'Electoral College' in the first place [D.C. being the sole exception to this prohibition, but only because its so being an exception is based on specific constitutional permission: the aforementioned 23rd Amendment]. Organic Acts for the insular Territories and the Constitutions of the Commonwealths [all approved by Congress] have made certain that all United States Dependencies [those places that are not constituent States of the American Union but over which the U.S. Federal Government, nevertheless, has at least some jurisdiction] do not at all deny or abridge the Right to Vote in their own elections in a manner that the States themselves would not be allowed to so deny or abridge-- for Congress to have done otherwise would have here been "the United States" so denying or abridging the Right to Vote in violation of the Amendments to the Federal Constitution already cited. Nevertheless, a statutory provision [such as the Federal law that, say, a Territory's Organic Act really is] does not carry quite the same weight as constitutional protection of a Right or Liberty such as the Right to Vote: for said Right to Vote by the citizens of a Territory can constitutionally be taken away by Congressional fiat in a way that cannot be done as regards the Right to Vote of citizens of a State [and, indeed, all these Territories did not always, under the American flag, have the powers of self-government they enjoy today; there is, therefore, no guarantee these same Territories will necessarily enjoy them in future!]

Simply put: Statehood protects an American citizen's Right to Vote much more effectively than mere Territorial status [the associated Commonwealths- with their own Constitutions- being, at least in some regard, exceptions to this statement]; even more so, if we agree- if only for the sake of this argument- that no non-State should be at all represented in the United States Senate [originally conceived by the Framers of the U.S. Constitution to be a Council of "ambassadors" from the sovereign States of the Union, after all], it has to be noted that no non-State [not even the associated Commonwealths, nor even the incorporated Territory known as the District of Columbia] has voting representation in the U.S. House of Representatives-- thus, the Right to Vote for an American citizen residing in a State is, by very definition, always more than the Right to Vote in a non-State under U.S. jurisdiction).

So, what about this State "sovereignty"? and, more to the point (which, or so I promise, I will soon get to! [;-)]), how does this "sovereignty" of a State of the American Union interplay with the State- and, as hitherto demonstrated, Federal- Right to Vote flowing from the Constitution and Law of said State?

Every organized system of Government on the face of the globe contains an element known as "Unitary"- that is: there is always some "unit" of "sovereign" governance somewhere within the system. It matters not whether the system be Federal or not; Absolutist Monarchy, Parliamentary Democracy, Presidential Republic or Totalitarian Dictatorship-- there is always some sovereign "unit" (exercising "Unitary government") to which all lower levels (or, we could always borrow the terminology of American Caucus/Convention systems re: Party presidential nominations, lower tiers) are, constitutionally and legally, subservient. Even countries that, as I type this, are tearing themselves apart, have some kind of "unit" of central government; the fact that the Constitutions of such countries are just pieces of paper more useful when found at the bottom of a bird cage than as effective enforcers of the Rule of Law is here immaterial-- the sovereign "unit" may, in such cases, only exist on paper; but, even as mere constitutional theory, it exists nonetheless!

In the United States of America, it is the constituent State of the Union that is the principal sovereign "unit" and the necessary and proper denigration and denouncement of the excesses of those who cried "State's Rights" in opposition to the Civil Rights Movement of the mid-to-late 20th Century has done nothing at all to change this essential constitutional position of the American State within the "more perfect Union" the Framers meeting in Philadelphia 220+ years ago sought to found and which we who are Americans yet still alive should ever continue to try and make even more perfect.

(Always remember: We, the People of the United States, says the U.S. Constitution, ... do ordain and establish this Constitution for the United States of America-- it was, therefore, not "ordained and established" at a particular time and place; rather, it was intended that this "more perfect Union" be- day after day, week after week, month after month, year after year, decade after decade and, long after those still breathing as I type this have [however involuntarily] "passed the torch", century after century- continually so "ordained and established". Whatever your Party or ideology, dear American reader: Democrat, Republican, Third Party or Independent; conservative, liberal or moderate- Left, Right or Middle of the Road; and whatever the Religion that might influence the political You- evangelical Christian, Reform Jew, orthodox Sunni Muslim, Hindu, Buddhist, etc.- or even if no Religion influences your Politics- be you agnostic, Atheist or merely alienated from a Faith to which you once adhered- this constant "re-ordination" and "re-establishment" of an even more perfect Union calls upon all of us to "fight like hell" for that in which we might believe ["strong opinions strongly held"] yet, at the same time, find common ground- wherever practicable- as Americans all [on the basic theory of free Republican Democracy that- to here quote those sage British political philosophers Mick Jagger and Keith Richard ;-) - "you can't always get what you want but, if you try sometime, you just might find you get what you need"].

You see: we Americans have never done such an ordination or establishment of our "more perfect Union"; instead, we the People ever do so-- because our own Federal Constitution, in its very Preamble, tells us we do!)

In a two-volume work (and you thought my Commentaries were long! [;-)]) published near the end of the 19th Century- one with the following complete title: THE ORIGIN AND GROWTH OF THE ENGLISH CONSTITUTION: An Historical Treatise in which is drawn out, by the light of the most recent researches, the gradual development of the English Constitutional System and the growth out of that system of the Federal Republic of the United States- one Hannis Taylor properly demonstrated that the American equivalent of the English- later British- Parliament was not the Congress of the United States (even though both legislative bodies be the principal law-making entities of Nation-States recognized as Independent under International Law) but, rather, the legislatures of the several States of the American Union. In fact, one of the major "bones of contention" that led to the eventual separation of what became the United States of America from the nascent British Empire of the late 18th Century was the argument over whether or not the legislatures of the forerunners of the States- the individual colonies of British America- could alter English Common Law for themselves in the manner in which Parliament itself could so alter same by statute. To both Crown and Parliament, the colonies were- at best- overseas counties (or boroughs, if they happened to operate under a Crown-granted Charter [as was the case with Connecticut and Rhode Island, both of which kept their respective Charters as their "Constitutions" after Independence and on into the 19th Century!]) ; but colonies from New Hampshire to at least the northern of the Carolinas (colonial South Carolina and Georgia had Parishes as their major colonial divisions), including- say- New York and Virginia in between, had already created their own counties and, in some cases, chartered boroughs and, further, had also adapted the Common Law to their own individual needs! As much as "Taxation without Representation", this political and constitutional dispute caused the smoldering embers of colonists' resentment to flame up into the American Revolution. As one Continental soldier, perhaps apocryphally (but it makes such a nice story!), reportedly put it: "We means to govern ourselves; they means we shouldn't!"

So, it is the American State that is the primary sovereign "unit" and, therefore, the Unitary instrument in the American system of Government, the very type of instrument found in all Governments created by Humankind since the Dawn of History (someone- if not some thing- exercises sovereign power that is, by virtue of so being sovereign, centralized; all else below that central sovereignty is, by definition, subservient). That, in the United States of America (as is the case in a relative handful of other Independent Nation-States around the World), the People of these Unitary States (as We, the People of a more perfect Union) agreed to join together under a second, overarching and higher level of Federal sovereignty (thereby, creating two distinct American political sovereignties and, thereby, dual citizenship for at least those Americans who live in States, as opposed to the Territories and associated Commonwealths [All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside begins Section 1 of the 14th Amendment to the U.S. Constitution]) does nothing at all to alter the Unitary nature of the constituent State of the American Union.

In a Unitary jurisdiction, whether stand-alone Nation-State (as most Independent Nation-States are) or constituent member of a larger Federal system (as is the case with the States of the American Union: as it also is with, for example, the Provinces of Austria or Canada, or the States of Australia or Germany), the "unit" itself is the lowest (where not, in non-Federal systems, the only) level of outright sovereignty. Again, all political divisions below the level of the "unit" are, by definition, subservient to that unit and exist solely for the benefit of the unit (and, perhaps- depending on the specific verbiage in the Constitution of a federation- the higher, federal level as well). Thus, for instance, American counties (or boroughs in Alaska and parishes in Louisiana), townships or equivalent (in those States which have these) and incorporated municipalities are, in the main, mere creatures of the State and are primarily designed to aid the State in the carrying out of State powers and duties:

When a municipal police officer or a county sheriff's deputy arrests someone for committing a crime within their jurisdiction, they are- more likely than not- enforcing State Criminal Law. Meanwhile, "the foundation of every state is the education of its youth" was (and, or so I believe, yet remains) the motto of the suburban New Jersey high school from which I graduated now nearly three and a half decades ago- it is a quote from Diogenes, the 4th Century B.C. Cynic philosopher and, in the case of the American States, such is considered literally so. Public Education in the United States is, at base, a State function, almost always as enshrined in State Constitutions as their Articles on 'Suffrage and Elections' to which I earlier referred; yet public education is administered, on a day to day basis, by county (or equivalent) and even more local School Boards and Boards of Education across the country- yet these do so (however unthinkingly and inadvertently) on behalf of the State in which such local public school jurisdictions operate and are ever at the mercy of potential State oversight. Many parents of school-age children may scream loud and long, for fear of losing their "say" in how the schools are run, when the State takes over a local school district fraught with corrupt practices but, constitutionally speaking, their cries of outrage more usually have no real merit!

Theoretically, if the State wanted to run all its public schools more directly, it could always do so; the only check on the State possibly doing this would be the specific provisions of the State Constitution relating to Education (which might dictate the process under which the State could carry this out or even restrict the State from so easily doing so)-- so it also is with Law Enforcement: if an American State wanted to get rid of all its local police agencies (county sheriff's offices, township and municipal police departments and the like), there is nothing, inherently, to stop the State from doing so, save any provisions of the State's own Constitution outlining the only process(es) by which this might be done (or, conversely [and more usually], making- for example- the County Sheriff a constitutionally required office that would necessitate an Amendment to the State Constitution [rather hard to get adopted, compared to a mere legislative enactment] in order to eliminate the position and its concomitant duties: the State Constitution, of course, also restricts the State as much, if not more, than its subservient, non-sovereign Civil Divisions! For, in truth, it is not the State Constitution so doing the restricting but, rather, it is the People of the State so restricting via their State's Constitution).

Thus, the State of the American Union is, indeed, "sovereign"- as sovereign as the Federal Government of the United States of America of which it is a part (though, again, it is "We, the People"- whether of a State or of the whole Nation- that are the real sovereigns in the American governmental system [I'll come back to this in another, later Part under the title of this Commentary).

The American Political Party, on the other hand, is not at all sovereign!

Let's take a more in-depth look at the history of the Allwright case I touched on in passing earlier (see, I told you I would come back to it-- eventually! [;-)]) before we get to Part Two of this Commentary.

The Allwright case came out of a series of constitutional decisions dealing with the attempts of the old "Jim Crow" American South to keep African-Americans from participating in the process by which candidates for State and local office were nominated. The Federal Constitution's 15th Amendment- as already mentioned- specifically forbids States from denying one's Right to Vote on grounds of "race or color" (by the time the cases I am about to discuss came before the High Court, "previous condition of servitude"- at least insofar as it related to Blacks who once lived under Slavery- was diminishing as a Voting Rights issue as more and more of those who were actually once slaves passed away). The problem was that most of the old Confederacy (and even those States of the Border South that did not officially secede from the Union re: the American Civil War but where Slavery, nevertheless, still existed into the Civil War era) of the time was the old "Solid Democratic South": put another way, winning the Democratic Primary was tantamount to election come the General Election; thus, the real election was the Democratic Primary in such States. Thus, even where former slave-holding States of the South might (however reluctantly and begrudgingly) allow African-Americans to vote in a General Election (thus giving at least "lip service" to the 15th Amendment to the U.S. Constitution), if Blacks could be legally prevented from voting in the Primary of the then-predominant Party in the State, the same (desirable, at the time, to most Southern Whites) effect as might otherwise be had through banning Blacks from voting outright could still be legally achieved.

In a case called Grovey v. Townsend [294 U.S. 699 (1935)], one R.R. Grovey claimed- as the Court Opinion itself stated- that although he is a citizen of the United States and of [Harris County, Texas], and a member of and believer in the tenets of the Democratic party, the respondent [A. Townsend] the county clerk, a state officer, having as such only public functions to perform, refused him a ballot for a Democratic party primary election, because he is of the negro race. By the way, note well the Judicial Notice here taken of the fact that a County Clerk is a State officer (again: a State is sovereign- a County is not but, instead, merely carries out the powers and duties of the State at the local level).

Grovey's argument rested primarily on a contention that (again quoting from the Court Opinion) the primary election was held under statutory compulsion; is wholly statutory in origin and incidents; those charged with its management have been deprived by statute and judicial decision of all power to establish qualifications for participation therein inconsistent with those laid down by the laws of the state, save only that the managers of such elections have been given power to deny negroes the vote [this, by the way, was an attempt by Texas to evade the requirements of the 15th Amendment on the theory that the "managers of elections" would be the ones denying or abridging the Right to Vote on account of race or color, not the State itself: REB-A]. It is further urged that while the election is designated that of the Democratic party, the statutes not only require this method of selecting party nominees, but define the powers and duties of the party's representatives and of those who are to conduct the election so completely, and make them so thoroughly officers of the state, that any action taken by them in connection with the qualifications of members of the party is in fact state action and not party action [thus, Grovey's attempt to parry Texas' legal gambit: REB-A].

The Court, however, rejected Grovey's claim, noting that [w]hile it is true that Texas has by its laws elaborately provided for the expression of party preference as to nominees, has required that preference to be expressed in a certain form of voting, and has attempted in minute detail to protect the suffrage of the members of the organization against fraud, it is equally true that the primary is a party primary... In Bell v. Hill [a Texas state case from 1932: REB-A], the [Supreme Court of Texas], in a mandamus proceeding instituted after the adoption by the state convention of [a] resolution... restricting eligibility for membership in the Democratic party to white persons, held the resolution valid and effective. After a full consideration of the nature of political parties in the United States, the court concluded that such parties in the State of Texas arise from the exercise of the free will and liberty of the citizens composing them; that they are voluntary associations for political action, and are not the creatures of the state... The statutes regulating the nomination of candidates by primaries were related by the court to the police power, but were held not to extend to the denial of the right of citizens to form a political party and to determine who might associate with them as members thereof.

The Court noted that [t]he argument is that as a negro may not be denied a ballot at a general election on account of his race or color, if exclusion from the primary renders his vote at the general election insignificant and useless, the result is to deny him the suffrage altogether [this statement was based on Grovey's argument that, in Texas, nomination by the Democratic Party was, indeed, tantamount to election]. So to say is to confuse the privilege 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 bound to concern itself, for the general election is a 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 Constitution... We find no ground for holding that the respondent [Townsend] has in obedience to the mandate of the law of Texas discriminated against the petitioner [Grovey] or denied him any right guaranteed by the [U.S. Constitution].

Thus, Grovey lost his case, in large part, because the U.S. Supreme Court had ruled that the privilege of membership in a Party was no concern of the State (in other words, Parties were- back in the mid 1930s- considered to be private, voluntary associations with, from a legal and constitutional standpoint, just about as much direct impact upon the actual outcome of an election as a round of Texas Hold 'Em among friends in the back room of a private home!).

Things began to change, however, with the case of United States v. Classic [313 U.S. 299 (1941)]. This- yes, indeed- "classic" election law case actually arose from a criminal complaint: several Louisiana Commissioners of Elections- including one P.B. Classic, who (so fittingly, it seems) gave his name to this decision- had been convicted in Federal District Court with altering and falsely counting and certifying ballots cast in a Democratic Congressional Primary. Classic and his cohorts had been charged with, among other things, violating a Federal statute which, in updated form, is still on the books- as the first part of U.S. Code: Title 18, Section 241 which makes it a Federal offense "[i]f two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same"). Classic's appeal to the Nation's Highest Court was based on an argument that voting in a Congressional Primary was not, in fact, a "right or privilege secured to him by the Constitution or laws of the United States" (in essence, P.B. Classic was relying on the U.S. Supreme Court's conclusion in Grovey v. Townsend that political Parties were, indeed, private and voluntary associations and that, therefore, Party primaries held to nominate candidates for office were not covered by provisions of the Federal Constitution [which is precisely how Grovey had been denied his Right to Vote in just such a Primary in a neighboring State, despite the command of the 15th Amendment], thus whatever he might have done did not, in fact, constitute a violation of the Federal statute under which he had been charged).

The Supreme Court, in Classic, noted that [s]uch right as is secured by the [Federal] Constitution to qualified voters to choose members of the [U.S.] House of Representatives is... to be exercised in conformity to the requirements of state law subject to the restrictions prescribed by [Art. I, Sec.2, clause 1 of the U.S. Constitution] and to the authority conferred on Congress by [Art. I, Sec. 4, clause 1-- both relevant clauses have already been quoted earlier in this piece: REB-A]... Pursuant to the authority given by [Art. I. Sec.2, clause 1] and subject to the legislative power of Congress under [Art. I, Sec. 4, clause 1] and other pertinent provisions of the Constitution, the states are given, and in fact exercise a wide discretion in the formulation of a system for the choice by the people of representatives in Congress. In common with many other states Louisiana has exercised that discretion by setting up machinery for the effective choice of party candidates for representative in Congress by primary elections and by its laws it eliminates or seriously restricts the candidacy at the general election for all those who are defeated at the primary...

The right to vote for a representative in Congress at the general election is, as a matter of law,... restricted to the successful party candidate at the primary, to those not candidates at the primary who file nomination papers, and those whose names may be lawfully written into the ballot by the electors... In fact,... the practical operation of the primary in Louisiana is and has been since the primary election was established in 1900 to secure the election of the Democratic primary nominee... Interference with the right to vote in the Congressional primary in [the district in question] for the choice of Democratic candidate for Congress is thus as a matter of law and in fact an interference with the effective choice of the voters at the only stage of the election procedure when their choice is of significance, since it is at the only stage when such interference could have any practical effect on the ultimate result, the choice of the Congressman to represent the district. The primary in Louisiana is an integral part of the procedure for the popular choice of Congressman. The right of qualified voters to vote at the Congressional primary in Louisiana and to have their ballots counted is thus the right to participate in that choice.

We come then to the question whether that right is one secured by the Constitution. [Art. I, Sec.2, clause 1] commands that Congressmen shall be chosen by the people of the several states by electors, the qualifications of which it prescribes. The right of the people to choose, whatever its appropriate constitutional limitations, where in other respects it is defined, and the mode of its exercise is prescribed by state action in conformity to the Constitution, is a right established and guaranteed by the Constitution and hence is one secured by it to those citizens and inhabitants of the state entitled to exercise the right... While, in a loose sense, the right to vote for representatives in Congress is spoken of as a right derived from the states,... this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by [Art. I, Sec. 2, clause 1], to the extent that Congress has not restricted state action by the exercise of its powers to regulate elections under [Art. I, Sec. 4, clause 1] and its more general power under Article I, Section 8, clause 18 "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers"... Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted at Congressional elections. This Court has consistently held that this is a right secured by the Constitution...

But we are now concerned with the question whether the right to choose at a primary election, a candidate for election as representative, is embraced in the right to choose representatives secured by [Art. I. Sec. 2, clause 1]. We may assume that the framers of the Constitution in adopting that section, did not have specifically in mind the selection and elimination of candidates for Congress by the direct primary any more than they contemplated the application of the commerce clause [NOTE: "The Congress shall have power... [t]o regulate Commerce... among the several States": Art. I, Sec. 8, clause 3; REB-A] to interstate telephone, telegraph and wireless communication which are concededly within it. But in determining whether a provision of the Constitution applies to new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government... If we remember that "it is a Constitution we are expounding" [NOTE: Chief Justice John Marshall's famous dictum in McCulloch v. Maryland [4 Wheat. (17 U.S.) 316 (1819)]: "we must never forget, that it is a constitution we are expounding": REB-A], we cannot rightly prefer, of the possible meanings of its words, that which will defeat rather than effectuate the Constitutional purpose.

That the free choice by the people of representatives in Congress... was one of the great purposes of our Constitutional scheme of government cannot be doubted. We cannot regard it as any the less the constitutional purpose or its words as any the less guarantying the integrity of that choice when a state, exercising its privilege in the absence of Congressional action, changes the mode of choice from a single step, at a general election, to two, of which the first is the choice at a primary of those candidates from whom, at a second step, the representative in Congress is to be chosen at the election. Nor can we say that the choice which the Constitution protects is restricted to the second step because [Art. I, Sec. 4, clause 1], as a means of securing a free choice of representatives by the people, has authorized Congress to regulate the manner of elections, without making any mention of primary elections. For we think that the authority of Congress... includes the authority to regulate primary elections when, as in this case, they are a step in the exercise by the people of their choice of representatives in Congress...

From time immemorial an election to public office has been in point of substance no more and no less than the expression by qualified electors of their choice of candidates. Long before the adoption of the Constitution the form and mode of that expression has changed from time to time. There is no historical warrant for supposing that the framers were under the illusion that the method of effecting the choice of the electors would never change or that if it did, the change was for that reason to be permitted to defeat the right of the people to choose representatives for Congress which the Constitution had guaranteed. The right to participate in the choice of representatives for Congress includes, as we have said, the right to cast a ballot and to have it counted at the general election whether for the successful candidate or not. Where a state law has made the primary an integral part of the procedure of choice, or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary, is likewise included in the right...

so said the U.S. Supreme Court in U.S. v. Classic.

Although the Classic case did not (and, indeed, could not) specifically overrule the Court's earlier decision in Grovey v. Townsend (Grovey had dealt with a State primary which may or may not have included nominating candidates for Federal office, Classic dealt with a primary for a specific Federal election; Classic, in fact, tied itself to specific provisions of the Federal Constitution that had nothing directly to do with State election law), the Court's apparent rejection- in Classic- of the argument that Party primaries were solely the affairs of private, voluntary organizations having nothing at all to do with the outcome of a general election left the door open for the Court to, perhaps, revisit the specific issue raised by R.R. Grovey, given the chance to do so. That chance came, in 1944, with the case of Smith v. Allwright [321 U.S. 649 (1944)]:

Smith, like Grovey had been before him, was an African-American who had been denied a ballot in a Democratic primary in- yes- Harris County, Texas (again!) by- in Smith's case- the election judges of his election precinct, one of whom was named Allwright (again, another seemingly fitting name for a case of this nature: despite the Court's earlier decision in Grovey, something was distinctly not "all right" here!). The primary in question had included candidates for that Party's nominations for U.S. Senate, House of Representatives, Governor and other State officers, among others.

The Court noted, in Allwright, that Texas is free to conduct her elections and limit her electorate as she may deem wise, save only as her action may be affected by the prohibitions of the United States Constitution or in conflict with powers delegated to and exercised by the National Government. It further noted that [s]ince Grovey v. Townsend and prior to the present suit, no case from Texas involving primary elections has been before this Court and that [t]he statutes of Texas relating to primaries and the resolution of the Democratic Party of Texas extending the privileges of membership to white citizens only are the same in substance and effect today as they were when Grovey v. Townsend was decided by a unanimous Court.

Utilizing the precedent set by U.S. v. Classic in the meantime, the Court also noted that [i]t may now be taken as a postulate that the right to vote in... a primary for the nomination of candidates without discrimination by the State, like the right to vote in a general election, is a right secured by the Constitution... We are thus brought to an examination of the qualifications for Democratic primary electors in Texas, to determine whether state action or private action has excluded Negroes from participation. The Court then went on to specifically reject reliance on the Texas state case of Bell v. Hill (recall that the Court had specifically cited this very case [relying on its "full consideration of the nature of political parties in the United States"] as at least some of the backing for its reasoning in Grovey that Grovey himself had "confuse[d] the privilege of membership in a party with the right to vote for one who is to hold a public office" and that "[w]ith the former the state need have no concern"), instead claiming that Federal courts must for themselves appraise the facts leading to that conclusion. It is only by the performance of this obligation that a final and uniform interpretation can be given to the Constitution, the "supreme Law of the Land" [NOTE: Article VI, clause 2 of the U.S. Constitution: REB-A].

The Court then set out to so independently "appraise the facts", noting that Texas requires by the law the election of the county officers of a party. These compose the county executive committee. The county chairmen so selected are members of the district executive committee and choose the chairman for the district. Precinct primary election officers are named by the county executive committee. Statutes provide for the election of the voters of precinct delegates to the county convention of a party and the selection of delegates to the district and state convention by the county convention. The state convention selects the state executive committee. No convention may place in platform or resolution any demand for specific legislation without endorsement of such legislation by the voters in a primary. Texas thus directs the selection of all party officers. Primary elections are conducted by the party under state statutory authority...

The state courts are given exclusive original jurisdiction of contested elections and of mandamus proceedings to compel party officers to perform their statutory duties. We think that this statutory system for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions an agency of the state in so far as it determines the participants in a primary election. The party takes its character as a state agency from the duties imposed upon it by state statutes; the duties do not become matters of private law because they are performed by a political party... If the state requires a certain electoral procedure, prescribes a general election ballot made up of party nominees so chosen and limits the choice of the electorate in general elections for state offices, practically speaking, to those whose names appear on such a ballot, it endorses, adopts and enforces the discrimination against Negroes, practiced by a party entrusted by Texas law with the determination of the qualifications of participants in the primary. This is state action within the meaning of the Fifteenth Amendment.

The United States is a consitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any state because of race. This grant to the people of the opportunity for choice is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied. The privilege of membership in a party may be, as this Court said in Grovey v. Townsend, no concern of the state. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the state makes the action of the party the action of the state.

In Allwright, the Court ended by stating, emphatically, that [h]ere we are applying contrary to the recent decision in Grovey v. Townsend the well established principle of the Fifteenth Amendment forbidding the abridgement by a state of a citizen's right to vote. Grovey v. Townsend is overruled.

To be continued...


Commentary Home