Jim Crow and Voting Rights
One of the most significant areas of civil rights cases that the U.S. Supreme Court considered during the first half of the twentieth century dealt with the voting rights of African Americans. Beginning in the late nineteenth century, most southern states developed a variety of mechanisms to disfranchise black voters, including white primaries, poll taxes, grandfather clauses, and literacy and “understanding” tests. Prior to the adoption of these legal impediments, and in some instances following their adoption, violence and threats of violence were also used to prevent black voters from exercising their franchise rights.
The U.S. Supreme Court addressed the constitutionality of many of these disfranchisement mechanisms between 1927 and 1944. The Court decided four cases during those years that addressed the exclusion of black voters from primary elections. In three of those four cases, the Court decided in favor of black plaintiffs. Although the first two victories had absolutely no impact on black voting rights, the third victory, Smith v. Allwright, 321 U.S. 649 (1944), in which the Court found the Texas white primary to be unconstitutional, was one of the Supreme Court's most significant civil rights decisions of
the first half of the twentieth century. The Smith decision, unlike all of the other voting rights cases that the Court decided during this period, actually had a tangible impact on black voter registration in the South.
During this period, the Supreme Court also considered the constitutionality of another prominent legal device used to disfranchise black voters—conditioning the right to vote on the payment of a poll tax. In this instance, the Court deferred to southern state legislatures, declining to find that the poll tax denied the right to vote to those who could not afford to pay. Also during these years, the Supreme Court reaffirmed its earlier 1915 decision in Guinn v. United States, 238 U.S. 347, in which the Court invalidated the use of grandfather clauses—provisions that enfranchised those persons whose ancestors had voted prior to 1867 regardless of their compliance with other voting qualifications. The Court's Guinn decision had been the first voting rights victory for African Americans in the twentieth century.
But during this 1927–1944 period, the Supreme Court did not consider the constitutionality of one of the other major impediments to black voting rights: the literacy test. White election officials frequently administered these tests in a discriminatory manner to deny the franchise to black voters. Congress finally banned the use of the literacy test in federal elections as part of the Voting Rights Act of 1965.
Among the many mechanisms used to disfranchise African Americans in the South during the first half of the twentieth century was the exclusion of black voters from Democratic Party primary elections. Because the Democratic Party dominated southern politics during these years, excluding blacks from primary elections effectively denied them all political influence. State Democratic parties in the South began to exclude blacks from their primaries by party rule beginning in the 1890s. By the late 1920s, blacks were excluded from Democratic Party primary elections in every southern state except North Carolina and Tennessee. In every state but Texas, the exclusion came as a result of Democratic Party rule or custom. Only Texas explicitly barred black voters from primary elections by statute.
Pursuant to a 1905 statute, Texas had given the county executive committees of political parties the authority to decide the qualifications of those voters who could participate in party primaries. During the early 1920s, most Democratic county organizations in Texas barred blacks from voting in primaries. But a few did not, including Bexar County, home to San Antonio. In 1923 a Bexar County politician who opposed black participation in primary elections persuaded the state legislature to enact legislation providing that “in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas.” Hence, Texas became the only state in the nation to bar blacks from voting in primaries by statute as opposed to party rule or custom.
The U.S. Supreme Court considered the constitutionality of the Texas law in Nixon v. Herndon, 273 U.S. 536 (1927), in a challenge brought by L. A. Nixon, a black voter denied the opportunity to vote in the 1924 Democratic primary in El Paso. Had the exclusion of Nixon taken place by virtue of party rule, the case would have been considerably more complicated because the Fourteenth Amendment barred only state action, not private action, and political parties were private entities. In a unanimous two-page decision, the Court held that the Texas law violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. Justice Oliver Wendell Holmes, who wrote the opinion for the Court, saw the case as an easy one: “it seems to us hard to imagine a more direct and obvious infringement” of the Fourteenth Amendment. Although the litigants had also alleged a violation of the Fifteenth Amendment—which barred the denial of the franchise because of race or color—the Court saw no need to consider that argument in light of its conclusion with respect to the Fourteenth Amendment issue.
But the Nixon v. Herndon decision had little impact on black voting rights. The decision affected only Texas, and shortly after the Court announced its decision, the Texas state legislature repealed the offending statute and enacted a new statute that explicitly delegated to state political party executive committees the authority to determine party membership and hence the right to vote in the party's primary elections. Acting under the new statute, the executive committee of the Texas Democratic Party promptly excluded all black voters from its primary elections.
Nixon was again denied the right to vote in the 1928 Democratic primary and filed suit challenging the new statute, arguing that it violated both the Fourteenth and Fifteenth Amendments. Nixon lost in the lower courts, but the Supreme Court accepted his case for review. The 1932 case of Nixon v. Condon, 286 U.S. 73 was considerably more difficult than the 1927 case of Nixon v. Herndon. Because the Fourteenth Amendment prohibited only state action, not action engaged in by private entities, the question for the Court was whether the state of Texas, by expressly empowering state executive committees to determine who could vote in party primaries, was responsible for the Democratic Party's decision to exclude black voters.
The Supreme Court, in a five-to-four decision with Justice Benjamin Cardozo writing for the Court, found that the Texas statute violated the equal protection clause of the Fourteenth Amendment because it specifically Page 22 | Top of Articleempowered the executive committee of the Texas Democratic Party to determine which persons could join the party and vote in its primary elections. Ordinarily, the Court noted, a political party's state convention, as opposed to the party's state executive committee, enjoyed such power. The disfranchisement of blacks by the state executive committee was thus action carried out by the specific authority of the state and hence violative of the Fourteenth Amendment. The four dissenters concluded that the Texas statute conferred power that the political party already enjoyed; hence, the racial exclusion was the result of the actions of a private party, not the state.
But the Court's Nixon v. Condon decision also had little effect on black voting rights. Within weeks of the decision, the Texas Democratic Party held its annual state convention; the convention delegates agreed to limit participation in the party's primaries to whites: “all white citizens of the State of Texas who are qualified to vote under the Constitution and laws of the State shall be eligible to membership in the Democratic party and, as such, entitled to participate in its deliberations.” The convention delegates took such action without reliance on any state statute.
The national office of the National Association for the Advancement of Colored People (NAACP), which had provided legal representation for the plaintiffs in the Herndon and Condon cases, worried that the Supreme Court would sustain the constitutionality of the Texas Democratic Party's action, thereby establishing an unfavorable precedent. Accordingly, the NAACP discouraged litigation and tried instead to mitigate the effect of the Texas white primary through political channels. When those efforts failed, R. R. Grovey, co-owner of a black newspaper and part of a small group of civil rights activists in Houston, filed suit challenging the Democratic Party's refusal to permit him to vote in its primary. Upon losing in the lower courts, Grovey, against the advice of the national office of the NAACP, took his case to the Supreme Court, using a local black attorney in Houston. Part of the tension between Grovey and the national office of the NAACP arose from disagreement over the NAACP's reliance on white attorneys to handle its Supreme Court litigation.
In Grovey v. Townsend, 295 U.S. 45 (1935) the issue for the Supreme Court was once again whether the exclusion of black voters from political primaries came as a result of state action, a requirement for finding a Fourteenth Amendment violation, or private action. During the early 1930s, a federal appeals court and a state supreme court had invalidated the exclusion of black voters from Democratic Party primaries in Virginia and Florida, respectively. In both instances, the court emphasized that the state paid the cost of party primaries. But in Texas, the state did not pay for the cost of party primaries. Ultimately, the Supreme Court in Grovey, with Justice Owen Roberts writing, unanimously concluded that the decision of the Texas Democratic Party state convention to exclude blacks from its primary elections did not result from state action, as had the state executive committee's previous exclusion of blacks, but rather from private action: “we are unable to characterize the managers of the primary election as state officials in such a sense that any action taken by them in obedience to the mandate of the state convention … is state action.” Hence, the exclusion did not violate either the Fourteenth or Fifteenth Amendments. The Grovey decision was a significant setback for southern black voting aspirations. But both the national office of the NAACP and the civil rights activists in Houston who had brought the Grovey litigation were determined to secure a reversal of the Grovey precedent.
Nine years later, in Smith v. Allwright (1944), the Supreme Court, in an eight-to-one decision, did reverse its decision in Grovey, holding that the exclusion of black voters from Democratic Party primary elections in Texas violated the equal protection clause of the Fourteenth Amendment. The Smith decision marked the first time the Supreme Court had ever reversed one of its previous unanimous decisions in such a short time.
Why did the Court reverse its unanimous decision nine years later? First of all, of the nine justices who decided Grovey in 1935, only Owen Roberts and Harlan Fiske Stone remained on the Court in 1944. Roberts was the lone justice to dissent in Smith, concluding that the Court should not overrule its earlier decision. But changes in Court personnel cannot alone explain the Smith decision.
In the nine years between Grovey and Smith, the Court decided two other cases relevant to black voting rights. The first case— Lane v. Wilson, 307 U.S. 268 (1939)—had little jurisprudential effect, but the second case— United States v. Classic, 313 U.S. 299 (1941)— proved to be highly significant for the Court's white primary jurisprudence.
In 1915 in Guinn v. Oklahoma, the Supreme Court had invalidated Oklahoma's “grandfather clause,” pursuant to which voters whose ancestors could vote prior to 1867 were automatically permitted to vote, regardless of whether they met other voting qualifications, such as a literacy test. Because virtually no blacks in Oklahoma had ancestors who could vote prior to 1867, the Court found the clause to be an unconstitutional violation of the Fifteenth Amendment. In response to the Court's decision, the Oklahoma legislature called a special legislative session and enacted a statute that determined that all persons who had voted in the 1914 election— while the grandfather clause was in effect—were automatically registered to vote. But those persons who had not voted in 1914, which included almost every black person Page 23 | Top of Articlein Oklahoma, were given only twelve days to register or else be permanently disfranchised. By means of this statute, the Oklahoma legislature “grandfathered” the effects of their unconstitutional grandfather clause, and thereby undermined the impact of the Court's Guinn decision.
In 1934, I. W. Lane, a black man, attempted to register to vote in Oklahoma, but was refused on the grounds that he could have registered during the twelve-day window in 1916. Lane brought a legal challenge, which came to the Supreme Court in 1939. The initial issue in Lane was whether he was obliged to pursue his claim in state court before seeking federal court review. The lower courts had ruled against Lane on these grounds, but the Supreme Court disagreed. Upon reaching the merits of Lane's case, the Supreme Court easily and unanimously concluded that Oklahoma's effort to preserve the effects of its unconstitutional grandfather clause violated the Fourteenth Amendment. But the 1939 Lane decision had no impact outside of Oklahoma and no impact on the Court's white primary jurisprudence.
But two years later, in 1941, the Supreme Court rendered a decision in United States v. Classic that did have a significant impact on the Court's white primary jurisprudence. In Classic, the Supreme Court considered whether the federal government had constitutional authority to punish fraud in a Louisiana primary election for the U.S. Senate. Article I, Section 4 of the Constitution gave Congress the authority to regulate the “Times, Places and Manner of holding Elections for Senators and Representatives.” In 1921 in Newberry v. United States, 256 U.S. 232 the Supreme Court had determined that Article I, Section 4 did not give Congress authority to regulate U.S. Senate primaries because the Court did not consider them to be “elections” within the meaning of this section of the Constitution. But in Classic, the Court overruled Newberry and held that Congress, under certain conditions, could regulate primary elections, including prohibiting fraud committed in the course of those elections. The critical issue in Classic was whether a party primary was, in fact, an “election” within the meaning of Article I, Section 4 of the Constitution. The Court concluded that the issue turned on whether “the state law has made the primary an integral part of the procedure of choice” or whether “in fact the primary effectively controls the choice.” The Court in Classic concluded that the Louisiana primary was an “integral part” of the election of U.S. senators and hence found that Congress had the right to prohibit fraud committed during the primary.
The national office of the NAACP viewed the Classic decision as providing an opportunity to overturn the Grovey precedent. Within months of the Court's decision in Classic, Thurgood Marshall of the NAACP filed suit on behalf of a black dentist in Houston, Lonnie Smith, who had been denied the right to vote in the 1940 Democratic primary.
The lower courts that considered Smith's legal challenge concluded that Classic had not overruled Grovey, a reasonable conclusion given that the Court had said nothing in Classic about the effect of its decision on the Grovey precedent. Smith's NAACP lawyers, however, argued that the Court's analysis in Classic concerning the role of political primaries in the election process called into question the Court's decision in Grovey sustaining the constitutionality of the white primary in Texas. The Supreme Court, with Justice Stanley Reed writing, agreed, concluding that the “place of the primary in the [Texas] electoral scheme makes clear that state delegation of primary elections is delegation of a state function that makes the party's action the action of the state.” The Court held that the exclusion of black voters from the Texas Democratic primary therefore violated the Fourteenth Amendment.
Because the constitutionality of white primaries now seemed to turn on the extent to which the primary was “an integral part” of the election process or “effectively” controlled the election process, in the aftermath of Smith, some southern states took legislative action to disassociate the primary from the general election. For example, in response to the Smith decision, the South Carolina legislature repealed all of its laws that in any way regulated political primaries. But a federal district court judge, affirmed by the U.S. Court of Appeals for the Fourth Circuit, found that despite South Carolina's attempted deregulation of the primary election, the Democratic primary in South Carolina had a controlling influence on the eventual electoral winner and hence the exclusion of black voters from the primary was unconstitutional.
In addition to South Carolina, other southern states were slow to comply with Smith, but black litigants used the Smith precedent to secure court orders directing Alabama, Florida, Georgia, and Louisiana to open their primaries to black voters. Unlike the earlier white primary victories in Herndon and Condon, Smith had a significant impact on black voting. In 1946 blacks voted in appreciable numbers for the first time in Democratic primaries in Alabama, Arkansas, Georgia, Louisiana, Mississippi, and Texas. Black voter registration in the South sharply increased during the 1940s, rising from 3 percent of the black voting-age population in 1940 to 20 percent in 1952. Although several factors account for this increase, the Court's decision in Smith was certainly one of those factors.
Some scholars, particularly Michael Klarman and Gerald Rosenberg, have expressed skepticism concerning the ability of the U.S. Supreme Court to foster significant social change, particularly racial change. But as Klarman Page 24 | Top of Articlehas argued, the Smith v. Allwright decision, although it did not eliminate all barriers to black voting rights, had a significant impact on black voting levels, particularly in the urban South. The positive impact of the Smith decision was due to a variety of factors, including the high degree of black commitment to exercising the right to vote, lower resistance among whites to black voting rights in comparison to other rights such as school desegregation, and the relative ease with which blacks could prove constitutional violations, particularly since white primary bans did not involve exercises of administrative discretion. A majority of southern blacks remained disenfranchised following the Court's decision in Smith v. Allwright, but the decision nevertheless constituted an important step in the direction of the complete enfranchisement of southern blacks, a goal that would be eventually realized with the enactment of the Voting Rights Act of 1965.
The white primary was hardly the only device southern states used to disfranchise black voters. Between 1890 and 1908, most southern states required the payment of a poll tax—typically a dollar or two—in order to vote. Moreover, some states required that the tax be paid several months prior to the election and that the voter produce his poll-tax receipt on the day of the election. The effect of the poll-tax requirement was significant; in many southern states, it contributed to the disfranchisement of hundreds of thousands of poor blacks and whites. The percentage of the voting-age population that voted in non-poll-tax states vastly exceeded the percentage that voted in poll-tax states.
Though the poll tax was race-neutral—it applied to both black and white voters and actually disfranchised more whites than blacks—the racial motivations for the poll tax were not a secret. For example, at the 1901–1902 Virginia Constitutional Convention, at which Virginia enacted a poll tax and literacy test as voting requirements, Carter Glass (1858–1946), a state senator and convention leader, set forth the rationale: “Discrimination! Why that is exactly what we propose; that, exactly, is what this convention was elected for—to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every Negro voter who can be gotten rid of, legally, without materially affecting the numerical strength of the white electorate” (Franklin 1957, p. 246).
In time, three southern states repealed the poll-tax voting requirement—North Carolina (1920), Louisiana (1934), and Florida (1937)—not because of its discriminatory effect on blacks but rather because of its effect on poor whites. But eight southern states retained the tax: Alabama, Arkansas, Georgia, Mississippi, South Carolina, Tennessee, and Texas.
In 1937 the U.S. Supreme Court, in Breedlove v. Suttles, 302 U.S. 277 considered the constitutionality of the poll tax as a requirement for voting. Breedlove was a poor white man in Georgia who was denied the right to vote because he was unable to pay the poll tax. He argued that the tax violated the equal protection clause of the Fourteenth Amendment because the tax was imposed only on persons under the age of sixty-one. The Court rejected that argument, noting that the Constitution gave states the authority to set voting qualifications for both state and federal elections and that Georgia had not abused its authority in imposing the payment of a poll tax as a voting qualification. Breedlove did not raise and the Court did not consider the racial motivation for the poll tax or its impact on black voters.
Even had the Court in Breedlove struck down the poll tax as a voting qualification, it is not clear what effect such a decision would have had on black voting. In the three southern states that abolished the poll tax during the 1920s and 1930s, black voter registration did not increase, probably because of other voting barriers such as literacy tests and the threat of violence toward blacks who did seek to register. By the same token, white voter registration significantly increased in those three states following abolition of the poll tax.
Within a few years of the Breedlove decision, a growing national movement emerged to ban the poll tax as a voting qualification, with the National Committee to Abolish the Poll Tax in the forefront of this effort. By the 1940s, about 70 percent of Americans favored abolition of the tax. Five times during the 1940s the House of Representatives passed legislation that would have barred the use of the poll tax as a voter qualification for federal elections, but each time the legislation failed in the Senate because of filibusters by southern senators. Congress eventually passed a constitutional amendment banning the poll tax, which a requisite number of states ratified in 1964. But the Twenty-fourth Amendment applied only to federal elections. A few states retained the poll tax as a voter qualification requirement in state elections until the Supreme Court finally held in Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) that the poll tax unconstitutionally restricted “the fundamental right to vote,” a fundamental right that the Court had only recently identified. By the late 1960s, the significant legal victories in the area of black voting rights, the most important of which was the enactment of the Voting Rights Act of 1965, had resulted in the election of large numbers of black officials across the South.
Franklin, John Hope. 1957. “‘Legal’ Disfranchisement of the Negro.” Journal of Negro Education 26(3): 241–248.
Hine, Darlene Clark. 1979. Black Victory: The Rise and Fall of the White Primary in Texas. Millwood, NY: KTO Press.
Klarman, Michael J. 2001. “The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking.” Florida State University Law Review 29(1): 55–107.
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, Morgan J. 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.
Ogden, Frederic D. 1958. The Poll Tax in the South. Tuscaloosa: University of Alabama Press.
Davison M. Douglas